The Limits of International Law

March 30, 2005

Unedited transcript prepared from a tape recording.

Proceedings:
MR. DEMUTH:  [In progress] --welcome you here this afternoon for this AEI book forum on the new book "The Limits of International Law" by Professor Jack Goldsmith of Harvard University, who is also an AEI Adjunct Fellow, and Professor Eric Posner of the University of Chicago Law School, just out from Oxford University Press.

Academic and theoretical are two of the harshest epithets that are thrown at think tankers like ourselves when we try to say something serious about the world of practical politics and policy making, but this book will put an end to that nonsense once and for all.  It is an academic book.  It is based on an elegant and powerful theoretical superstructure.  But it also employs legal history and political and diplomatic history to illustrate the theory and to advance a set of arguments about the nature of international law and its relationship to the interests of individual nations and power politics among nations that is highly original and arrest, and at many points sharply at variance with what many people who are both experts on international law or who rely on ideas about international law in policy making here in Washington will find very unfamiliar and challenging.

The arguments of the book are directly related to several of the hottest controversies in international relations and American foreign policy today, and we hope that the book will receive the reading and provoke the debate that it so richly merits.

For this session, both authors will be making presentations, and I am particularly grateful to the four distinguished panelists who have shown up to discuss and debate the book.  And most of all to my colleague John Yoo of Boalt Hall, University of California at Berkeley Law School, another AEI adjunct scholar who has organized the session and will be moderating.

MR. YOO:  Thank you, Chris, and I welcome all of you to this book forum to celebrate the publication of "The Limits of International Law."

What I would like to do is introduce each member of the panel and describe the order of events.  First we're going to hear from Jack Goldsmith and Eric Posner who will summarize their book for about 3 minutes.  Jack is a professor at Harvard University and in his itinerant career has also taught at the University of Chicago and University of Virginia Law Schools, and was head of the Office of Legal Counsel under the first term of the second Bush presidency.

Eric Posner is the Kirkland & Ellis Professor at the University of Chicago Law School where he has taught for many years.  Before that he was a professor at the University of Pennsylvania Law School.  And he has turned his interests in law and economics to the field of international law, and you all can be the judge of whether that has been successful or not.

After that the panelists will go to 10 minutes each in alphabetical order.  So first will be Peter Berkowitz who is a professor of law at George Mason Law School and also a Fellow at the Hoover Institution.  He has written both on international law and on liberalism in political philosophy.

Following him we're very lucky to have Chief Judge Douglas Ginsburg who is not only Chief Judge of the D.C. Circuit Court of Appeals here in Washington, D.C., but has been a frequent writer and contributor in the fields of law and economics himself, before that was Assistant Attorney General for the Office of Antitrust in the Justice Department, and before that head of ALIRA (ph) in the Office of Management and Budget in the first Reagan administration.

Following Chief Judge Ginsburg will be David Scheffer who is currently a visiting professor at the George Washington University Law School and under the Clinton administration was the ambassador at large for war crimes where if I remember correctly he played a big role in the negotiations over the creation of the International Criminal Court.

Then to wrap things up will be Edwin Williamson who is currently a partner at the law firm of Sullivan & Cromwell.  In the first Bush administration he served as legal adviser at the Department of State and continues to play a role in international law at the American Society of International Law today.

After the panelists have each spoken for about 10 minutes, we'll give Jack and Eric a chance to respond and discuss some of the issues that are raised by the panelists for another 10 to 15 minutes, and then we'll turn over the balance of the time to questions and answers from you.  Someone will come around with a microphone, and if you will identify yourself and give your name and affiliation when we do that to make things run smoothly.  We'll try to end up by 7:15.

MR. POSNER:  Let me start by thanking the people who have organized this event, especially Chris DeMuth and AEI, and Suzanne Gershowitz who did the bulk of the logistical work.  Also I'd like to thank John Yoo for moderating this panel and the panelists for coming, and I very much look forward to the reactions to this book.

Let me begin by talking a bit about why we wrote this book.  International law now is a hot topic, and Chris mentioned this.  There are all kinds of important international legal issues that are going around that people are discussing, and let me just mention a few of them.

The invasion of Iraq.  The invasion of Iraq was arguably a violation of international law.  Some people think that it was not.  The administration claims that it was not, but many people think that it was a violation of international law.

Another example is the Kyoto Treaty.  The United States has refused to sign on to the Kyoto Treaty which is supposed to help alleviate the problem of global warming.  This has a lot of people very angry.  They say the U.S. should be leading efforts to promote international law to solve urgent problems, and instead the U.S. is being a drag, is not in the vanguard but is in the rear.

Another example of this is the International Criminal Court.  So many people think that the International Criminal Court which has jurisdiction to try war criminals and people who have committed crimes against humanity and other international crimes is a great innovation in the tradition of Nuremberg.  At one point the United States appeared to be sympathetic to the goals of the International Criminal Court, but is not quite hostile to it, has refused to sign onto the treaty and in many ways is trying to weaken the obligations of other states that are already parties.

The ABM Treaty.  One of George Bush's first acts in office was to withdraw from the ABM Treaty.  This upset a great many people.  The ABM Treaty was by many accounts a quite successful international treaty between the United States and Russia now.

The World Court.  So the International Court of Justice or the World Court is the judicial organ of the United Nations.  At one point the United States 50 years ago was a great supporter of this court.  People had high hopes that this court would help replace international power politics of the sort that caused World War I and World War II with international adjudication and law.  Recently the United States has ignored the decisions of the World Court that have been adverse to it including these cases that I'm sure you've read about involving foreign nationals in the United States who are arrested and convicted of capital murder and the U.S. violated the Vienna Convention on Consular Relations by failing to provide these foreign nationals notice of their consular rights, their rights to talk to their people in their consulate and get legal assistance from them.  Nonetheless, the U.S. has more or less ignored World Court judgments that the U.S. is in violation of this treaty.

The Geneva Convention.  The U.S. in the war against terrorism has made aggressive claims about whether the Geneva Convention can be applied to members of the Taliban regime, to al-Queda.  There are good legal arguments on both sides of this issue, but many people are critical of the administration for trying to narrow the Geneva Conventions suggesting that the Geneva Conventions might somehow not apply, and this is has been another topic that has gotten people very upset.

All of these international law issues are important.  I could mention many more.  But I think most people don't know what to think about them.  I think the instinct is to think international law is law and the U.S. is a nation of laws and, therefore, the U.S. should comply with international law as much as it can, it should assist in the advance of international legality because the alternative is war, destruction and international chaos.

But it's not just a rough popular sense, I think, but this is actually the world view of a significant number of people.  In the rarified world of legal scholarship, of course international law scholars are very much worried about the current American stance toward international law.

But I think it's not just scholars.  I think the elites, the commentators, the journalists, the pundits, most of them are also uneasy about the American stance for international law and I think that their world view, their attitude about international law, goes something like this.  I'm going to present their view about international law.  International law is of considerable importance because it prevents states from going to war with each other and from having conflicts, and it's important to use international law in order to resolve conflicts between states.

What is international law?  It's not just little treaties that people enter into.  It's more than that.  There are these principles of international legality that are larger than any specific treaty, and these principles of international legality bind states sometimes even against their will.  There is something called customary international law which is international law that evolve in a decentralized fashion as a matter of custom and people claim that there are all kinds of human rights norms that are part of customary international law and binds states even if those states never explicitly agreed to them.

There is also this even more ambitious argument that more international law is better.  That is, international law is a kind of inherently benign force and that especially the United States, the most powerful country, should advance international law as much as possible.  So even if there are things that we don't like about the Kyoto Treaty, we've have to make a start, enter the treaty and then we can negotiate new treaties that are more in America's interests.  Even if we're worried about the International Criminal Court doing some things we don't like, it's important to establish the principle that an international body can adjudicate war crimes and other crimes against humanity.

On this view, as I said, international law is almost always good, and more international law is always better.  International law is not a means toward an end, international law is an end in itself.  This is why recent American recalcitrance about international law, the refusal to enter the Kyoto Treaty and the ICC, the claim that the Geneva Conventions may be suspended or applied in a narrow fashion, the refusal to comply with various judgments of the World Court, this is why all of these things are driving these people up the wall.  They cannot under how the U.S. long a proponent of international legality is being so reluctant today to participate in these new international institutions.

This is the background and I'm giving you the background to anticipate your reaction to our argument which might be this is obvious.  It might seem obvious to you, but it's not the dominant view out there.  What is our view?

Our view is that international law is just a part of international politics.  States act in their interests and they enter into treaties and other international legal institutions when doing so serves their interests.  On this view there is no reason for the U.S. to enter the Kyoto Treaty if as the U.S. government has claimed it puts too much of a burden on the United States relative to other countries.  There is no reason to enter the ICC, the International Criminal Court, if the benefits from having this international court are less than the dangers to the United States which are conventionally said to be the risks to American soldiers and leaders being prosecuted for political motives.

And it's not just the United States.  Lots of other states enter into international treaties and international institutions, but they do it when it's in their interests to do so, and then the decision not only to enter into the treaty, but their decision whether to comply with it or not or to withdraw from it is a decision that they take on the basis of their national interests.

When the United States withdrew from the ABM Treaty, this didn't violate some kind of overarching norm of international legality.  It wasn't something that was striking or new.  It didn't do damage to international law as a phenomenon.  It was just an act that made sense based on American policy and foreign policy.

That doesn't mean that international doesn't matter and is meaningless.  What international law is are the rules that states agree to when they want to cooperate with each other.  Take again the ABM Treaty.  It made sense in the 1970s under the then prevailing views about nuclear warfare and disarmament.  The United States and the Soviet Union thought that the creation of antiballistic missiles would destabilize the Cold War and possibly lead to a hot war so they entered into this treaty which made sense at the time.

As time changed, once the Soviet Union ceased to exist and America began to be worried about smaller rogue states armed with nuclear missiles, America's interests changed and there was no reason to continue to comply with the ABM Treaty.  It made sense to withdraw from it.

Or take American withdrawal from the World Court.  This is actually not a recent phenomenon.  This is a phenomenon that goes back a couple decades.  When the World Court was created after World War II, the United States was the most powerful country by far in the world.  It dominated the U.N. and the World Court.  In fact it decided in large part how these institutions would be created and for a while the World Court did what America wanted.  It resolved cases in a way that made sense for American interests and the interests of other countries as well.

But over time as the world changed as more newly independent nations came into existence and the identity of the justices on the court changed, it stopped reflecting American interests.  It started ruling in a way that was not in American interests, and it made sense at that point for America to withdraw.  It is conceivable as a matter of theory that having a World Court is a good thing because sometimes it'll rule against us and sometimes it'll rule against you, but on average we'll all be better off.  But in fact, that's not what happened, and once the World Court began to drift away from America's interests is was a natural and predictable consequence that the United States would stop dealing with it--other countries of course who never thought that it would reflect their interests, like the Soviet Union would never have anything to do with it in the first place.

The bulk of the book is explanatory.  The argument, and I'll say a few more words about this, is not that international law doesn't exist or it's pointless, it's that you can best understand international law as the result of states acting in their national interests but doing so in a way that results in cooperation, the cooperation of a narrow, fragile, limited sort.  It's not that states are increasingly submitting themselves to something called international law.  That's not international law is.  International law reflects these discrete interactions between states where they're able to overcome impediments to collective action usually of a narrow sort, and they enter into treaties that can do some good things.  But international law always remains an instrument toward good policy.

You might think of this as a chastened view of international law, an instrumental view of international law, and it does have important normative implications about good policy.  Let me give you a couple of examples.

The first point that we want to make is that the government should never comply with international law just for the sake of international legality.  In conventional wisdom, international law is like the plant that must be nurtured and you have to constrain one's national interests whenever it might harm this plant.  Our view is it's just a tool.

It's true that if you violate international law there might be costs.  So the state violates international law, another state that likes this rule might retaliate.  And it's possible though very hard to demonstrate empirically that if a state violates international law it will harm its reputation and make it more difficult for it to persuade other states to enter into treaties with it, for example.

But these sorts of considerations usually fade when one is confronted with an actual policy decision.  So let me compare the intervention in Kosovo in 1999 and the invasion of Iraq.

The intervention in Kosovo was clearly a violation of international law.  Few very people argue otherwise.  The U.N. Charter says you can only start a nondefensive war with the Security Council's approval and the Security Council did not approve.  The Iraq invasion was arguably a violation of international law.  Some people claimed that the Security Council had authorized it, other people don't.

My argument is not that one war was sensible and the other war was not sensible.  I don't know enough about either of these wars.  My point is that the question of legality is really not a very useful way of evaluating whether the United States was correct in participating these wars.

If you think that the Kosovo intervention was sensible for humanitarian purposes or to maintain stability in Europe or some such thing, that I think is an adequate justification for intervening in Kosovo.  The fact that it was a violation of international law didn't seem to bother many people at the time because at least the beginning the war was quite popular.

In the case of Iraq, if you think that there was a good justification for invading Iraq, fears of weapons of mass destruction, humanitarian reasons, then the fact that it was a violation of international law or that it was not shouldn't be a relevant consideration.

Another implication of our argument is when thinking about the consequences of violating international law, the government needs to rely on a realistic model of those consequences, our model I would say, rather than an unrealistic model.  Let me give another example.

In the war on terror, the U.S. government had to make a decision about how to treat members of al-Qaeda and the Taliban regime that it captured.  Should it apply the Geneva Conventions to them?  Should they not be governed by the Geneva Conventions?  Should they be governed only to the extent that they are people but they're not legitimate combatants who deserve POW status?  These are legal questions.

In the public debate, one of the issues that came up was, what difference does it make?  If there are really good policy reasons not to give these guys POW protection, why should we give them POW protection?  There might not be good policy reasons, but let's suppose there are.  Let's suppose that POW protection would make it very difficult to obtain information that you would need to prevent another terrorist attack.

One argument that was made be the sort of people that we're criticizing is that if the United States violates the Geneva Conventions vis-a-vis Taliban or al-Qaeda, then when American soldiers are captured in some future war, the country that captures them will also violate the Geneva Conventions and our own soldiers will be mistreated.

I don't know what the next war is going to be, who it's going to be against, China, Iran, Syria, but imagine this next war.  Is this actually a good argument?  Is let's say China going to mistreat American soldiers that it captures because America mistreated or did not give the protections of the Geneva Conventions to members of al-Qaeda?  I think the answer is no.  I don't think China cares how America treats members of al-Qaeda.

That doesn't mean that it's costless to violate the Geneva Contentions.  The real question in this hypothetical let's hope war with China, how should America treat Chinese POWs?  Here the Geneva Contentions can be helpful because if you look at the history going back to World War II and World War I on how states would enforce the Geneva Contention against each other, it was a matter of strict reciprocity.  In the past and I imagine in the hypothetical war with China, the usefulness of the Geneva Contentions is they provide a kind of guide or focal point that the two states can use as they implicitly negotiate about how they will treat each other's POWs.

So in our war with China we might want them to treat American POWs well and in order to get them to do that we treat Chinese POWs well, and what the Geneva Contention does is provide a code around which we can coordinate, because after all, during the war it's very difficult, usually impossible, to have explicit negotiations about how to treat captured soldiers.

This is a way in which international law can work.  It can be helpful.  But you have to understand that it's helpful in a way that is subservient to national interests in what you can realistically states to accomplish through cooperation.  After all, if cooperation among states were all that easy, one wouldn't have war to begin with that the Geneva Contention assumes for its own application.

Then the final implication I'll talk about is building international institutions for their own sake is a pointless exercise.  There is no reason for the U.S. or any other country to enter a treaty, say the Kyoto Treaty or the treaty creating the International Criminal Court or the Law of the Sea Treaty unless there is instrumental value in doing so, unless you expect this new legal regime to promote your interests.

There is this idea floating around that if only states entered into more treaties, created more international institutions, this kind of normal legality would come into existence and kind of float around and envelop all these states in its mists and somehow the states, the governments, the bureaucracies, would absorb the principle of international legality and not assert their interests vigorously against each other the way they do.

There is no historical evidence that states do this.  You can go throughout the history of international law.  There is no evidence that states are so sensitive to the principle of international legality.  The reason is very simple.  There is no world government.  There are 191 states.  These states are very concerned about their own security and they're willing to cooperate with each other, but when you have such a large group and a lot of these governments are weak and so forth, it's very difficult to get any kind of realistic multilateral cooperation.

There have been importance instances of bilateral cooperation that come and go, but international law is always floating above the interests of the states.  It's useful, but it can't constrain them in any significant sense.

I'll stop here, and Jack is going to make a few more comments about our book.

MR. POSNER:  Thank you, Eric, and I too would like to thank the American Enterprise Institute for hosting this event.  I spent the last 2 months when I was working on this book here at AEI and I was very grateful for the opportunity to be at this wonderful place while doing that.

The last chapter of our book is about the relationship between our claims about international law and domestic democratic institutions.  The basic claim in that chapter is that the spread of democracy only enhances our arguments both descriptive and policy prescription arguments that states should act with respect to international law only when it's in their interests to do so.

I'm only going to speak for 5 or 10 minutes.  I'm going to talk in that light about the U.S. Constitution and how we think that the basic structure of the U.S. Constitution is consonant with our views about international law.

One of the most important reasons for Constitution's founding, one of the reasons that we departed from the Articles of Confederation, is because the Articles of Confederation did a terrible job of complying with international law.  Most notable, under the Articles of Confederation the United States as a government was not able to carry out its obligations under the Treaty of Peace with Great Britain primarily because the states were not complying with their obligations to enforce the debts of British creditors, and the federal government was too weak and ineffectual to do anything about it.  This meant that we weren't able to comply with our obligations and it meant that not only was it giving Great Britain an excuse to be belligerent on the margins of the country, but it was potentially affecting our reputation to enter into other treaties, commercial treaties that we desperately needed at the time.

One important reason for the Constitution was precisely to help us comply with international law, especially treaties, and the Constitution did this in a couple of ways.  Most notably it added a supremacy clause that said treaties are the supreme law of the land and state judges have to comply with treaties.  It also established for the first time a federal judiciary with jurisdiction to interpret treaties so that cases could go to federal court and courts could interpret the obligations of the treaty.  It also established a powerful executive that could enforce our international obligations domestically.

Finally, even though the Constitution mostly focuses on treaties, it also talks in one place about the other form of international law, customary international law, when it gave Congress the power to define and punish offenses against the law of nations.  The framers wanted us to comply with the important rules of customary international law at the time, especially rules relating to ambassadors and commercial matters, but they thought that before international law should become domesticated as domestic law at least as federal law that it would have to go through the filter of a congressional statute.

The framers were concerned with making sure that the United States could comply with international law.  However, the framers thought this for a very pragmatic and realistic reason, and they were quite clear about this, that it was important to enter into international obligations and comply with them in order to promote domestic welfare.  So that the United States could flourish at home, we had to have cooperate relations with other states and the framers realized that and they realized we had to have a mechanism to do this.

But they also embraced two important caveats to the proposition of international law compliance.  The first was that the United States would only assume international obligations that actually served its interests.  In fact, all the framers, including Washington and the important framers especially in the first administration, Washington/Hamilton/Jefferson for example, they all thought that the United States would and should enter into very, very few treaties.  One of the reasons that the framers gave the treaty power to both the president and the Senate, the combined power, was to make sure that we entered into few treaties and that the treaties we entered into had the democratic imprimatur and served the interests of the nation.  So they gave it a different kind of check--it had to be approved by both the Senate and the president.  The idea was to ensure that there were two filters to make sure that these treaties really did serve our interests.

The same was true of customary international law.  As I mentioned, the framers thought it was important that we abide by the customary international law obligations, the fundamental ones, but before it could become domestic law they thought that it had to go through--domestic law by which I mean federal domestic law--it had to through the filter of the legislative process.  The framers were a little more skeptical--treaties because it's a little less defined, so they gave Congress the power to define and punish offenses against the Law of Nations.

The first point is that although the framers thought compliance was important, they thought compliance was important for international obligations that served our interests, and they thought we would only enter into obligations that served our interests.

The second realistic point, the second pragmatic point that the framers embraced was that particular international law obligations would not always serve the interests of the United States and that there had to be mechanisms in the exceptional case.  In the usual case when we enter into a treaty, the overwhelmingly usual case, is that we'll comply with the treaty.  The whole point of going through the process in the Senate and the president is to make sure we're actually doing something that's going to make us better off.  So once we enter into that obligation there's an overwhelming presumption that complying with it will make us better off.

But that's not always so.  Circumstances change and there have to be mechanisms for us to be able to get out from our treat obligations.  Without going into too much detail, the framers thought that the president in some circumstances would have significant interpretative power over the content of our obligations and he could in some circumstances terminate our treaty obligations, and that Congress and/or the Senate could also terminate our international obligations.

I'll mention two examples running out of the same set of events.  Among the first treaties the United States ever entered into were some mutual defense treaties and commercial treaties with France.  When the French Revolution occurred in the early 1790s, this provoked a major crisis in the United States because we had contingent obligations with France to join them in a way in the West Indies and helping them defend the West Indies.  In the early 1790s the Washington Cabinet did not want to assume those obligations because the country was too weak to assume those obligations.

So Washington's Cabinet decided on two things.  They decided that they would embrace a new concept of neutrality.  They moved customary international law and they embraced a new conception of customer international law, a new conception of neutrality, that in effect made it such that we would not abide by our obligations under the treaty if we were pressed to do so.  The executive even in the early 1790s had discretion to interpret the treaty in a way that served the national interests.

The second event of course was in 1798 when the French were preying on American ships and the Congress enacted a statute that abrogated the treaties altogether.

This shows that to the framers compliance was important and especially for a treaty if there was an overwhelming assumption that compliance would be forthcoming and that all these institutions were developed to ensure we could comply with our obligations so that we could get the benefits from them, they also realized in summary, first, that these obligations would be few and that they would be filtered through the democratic process thereby serving our interests.  And second that there had to be a mechanism in light of changed political events in the world whereby we could alter or terminate our legal obligations.  This is all consonant with our basic theory, and I'll stop there.

MR. YOO:  Peter?

MR. BERKOWITZ:  Thank you.  Of course I would like to echo the thanks that have already been made.

Professors Goldsmith and Posner have written a bold, embracing book that confronts the dominant view of international head on.  It's learned and serious.  It has practical implications for U.S. policy and America's role in the world.  And, God bless them, it eschews academic claptrap and cuts to the heart of the matter.

Their central thesis can be compactly stated, "International law emerges from states acting rationally to maximize their interests given their perception of the interests of other states and the distribution of state power."  This is a refined version of a thesis familiar from the School of International Politics known as realism.  Realists hold that state actions are best understood as motivated by a desire for power.  According to realists, morality generally is not and should not be allowed to become the basis of foreign policy.

For Goldsmith and Posner, morality generally is not and should not be allowed to become the basis of compliance with international law.  They make their case in a variety of ways, through the application of rational choice models, to the analysis of state behavior, through shrewd and contrarian readings of customary international law and treaties, and through sustained engagement with the dominant view about international law, the liberal internationalist view.

Regarding their central thesis, I want to make three brief points this afternoon.  The first will concern the academic context in which Jack and Eric write.  The second deals with the particular and pervasive conceit in the academic world to which their writing responds.  And the third suggests the importance of our culture of freedom, a factor about which they scarcely write at all.

First, the point about the context in which they write, among American law professors, international law became in the '90s and is today what American constitutional law was to the '70s and '80s, the fashionable front line for advancing progressive social change.  Suppose you were a law student in the 1970s and 1980s particularly at an elite law school.  Then it would be likely that your class in constitutional law if you were at Yale Law School, your innumerable classes in constitutional law, would have been governed by a single theme or challenge.  That theme or challenge would have been how to justify the work of the Warren Court, and to a lesser extent the Burger Court, and how to extend that work further.

Many of those teaching law at that time came of age in the '60s and were infused with the spirit of the Civil Rights Movement.  For them, American constitutional law was not just the vehicle for, but the indispensable means to the achievement of social justice, progressively understood of course.  Many students harkened to their message.

Several developments in the 1980s however complicated the constitutional law curriculum.  As you will recall, in 1980 Ronald Reagan was elected president and made the appointment of conservative judges a priority.  In 1982 a small number of conservative law students mainly from elite law schools founded the Federalist Society.  In 1986 Justice Rehnquist was elevated to the position of Chief Justice, and Antonin Scalia became an Associate Justice of the Supreme Court.

Other appointments and developments followed.  The crucial fact is this.  As the Rehnquist Court matured, the court and constitutional law could no longer be seen as essentially a vehicle for progressive for partisan political change.  The progressive impulsive among law professors was stymied.  What to do?  Where to turn?

As it happens, at about the same time profound changes were taking place in the larger world.  The Berlin Wall was dismantled, the Soviet Union melted away, the U.S. driven in no small measure by humanitarian concerns intervened in the Balkans.  The information revolution exploded.  Globalization unfolded.

American constitutional law professors created a cottage industry out of advising Eastern European nations on the transition to democracy.  Justices of the Supreme Court began to spend more time in the summer discussing law in tony resorts with their European colleagues.

All of this created unrivaled opportunities and unrivaled incentives for law professors frustrated by the American Supreme Court to see international law as the new constitutional law, the vehicle for progressive politics.

In this context, Jack and Eric's book is especially valuable.  A one-party system is bad in politics.  It's bad in scholarship, too.  In fact, American constitutional law, the study of it, has benefited immensely since the mid '80s from being subject to a vigorous contest between let's say the party of progress and the party of order.

However, in the field of international law, more conservative understandings and approaches generally have been lacking.  To make a long story short, criticism and constructive theory of the sort that Jack and Eric put forward in their book is to be applauded not least as a liberal imperative.

My second point deals with the conceit to which Jack and Eric respond, and I want to amply some of their arguments.

The dominant view as I've said among law professors is the liberal internationalist view.  According to it, a good portion of the structure and content of international law can be derived from reflection on our common humanity, or more precisely, reflection on our nature as free and equal beings.  Liberal internationalists tend to embrace a cluster of beliefs that they think follow from such refection:  a dense, detailed and growing list of human rights that apply to all individuals and states everything; the strengthening of international institutions, the International Court of Justice, the International Criminal Court, the U.N. Security Council, to promote these rights; the promotion of multilateral initiatives; and the substantial expansion of transnational nongovernmental organizations.

In this liberal internationalism, the dominant view is theory driven, and driven by partisanship.  To be sure, professors of international law are more likely to invoke developing state practice as evidence of that international law requires than they are to reply upon the complex abstractions of John Rawls or Jurgen Habermas--theory or theoretical conceit and not actual developing state practice that determines for the scholars which example of state practice they will appeal to as evidence of the structure and content of international law.

Nor is this conceit, by the way, the conceit that difficult political problems can be solved through abstract reason and deserve to be seen as an expression of the will of the people.  Nor is this conceit confined to the field of international law.  American constitutional law and the discipline of American political science is dominated by scholars who make similar arguments about the constitution and domestic politics.

Accordingly, the contribution of Jack and Eric's book is to bring into focus some of the ways in which this partisan and pervasive conceit misdescribes law, morals and politics, and to expose the end run around democratic politics that it represents.

My third and final point concerns a factor about which Jack and Eric actually scarcely write, and that's culture; more specifically, the culture of freedom in which we live.  Let's return to their central thesis, "That international law emerges from states acting rationally to maximize their interests given their perception of the interests of other states and the distribution of state power."

Something is missing here, and what is missing is what allows Jack and Eric to insist not only that states do not obey international law for moral reasons, but they have no moral reason to obey it, only ordinary instrumental reasons.

What is missing in Jack and Eric's formulation of their thesis, I'll repeat it again, "That international law emerges from states acting rationally to maximize their interests, given their perception of the interests of other states and the distribution of state power."  What's missing is a reference to states' perceptions of their own interests and an appreciation of the complexity of those interests.

This is relevant in part because of how liberal democracies tend to interpret their interests.  Take the United States.  As a nation we are interested in many things.  Among other things, we are interested in the universal claims that our principles make beginning with the idea to which our nation is dedicated, that all human beings are by nature free and equal.

This is one of those special sorts of factual claims.  It has moral consequences.  It's quite true that there is a long and distinguished tradition of thinking about international law that concludes that sovereign nation states are the most effective bodies for protecting the rights shared by all humanity.  Jeremy Rifkin has written at length about this.  It's also true from the other direction that it's a mistake to try and deduce from this moral fact, the moral fact of individual rights, a detailed legal code.

But it's also true that our founding moral and political principles reinforced in myriad ways by our culture inclines us to think morally and politically, nationally and internationally, in terms of our common humanity.  This is one of our interests.

Jack and Eric have given us excellent reasons to doubt that international law as reflected in current arrangements and institutions represented an authentic expression of our common humanity.  And yet perhaps there's something more to say.  Don't we have a practical interest in a world in which we respect promises to other nations because of our confidence that we will respect theirs?  In fact, the establishment of an order in which the mutual respecting of promises can be reduced to a matter of enlightened self-interest could be seen not as a mere tool, not as purely instrumental, but as a kind of fundamental imperative.

Indeed, no less a hard-headed analyst of politics than Thomas Hobbes argued that the rules of right conduct that define such an order deserve the name of morality.  Whether they wish to give it the name of morality, Jack and Eric might agree that it is in our interests to work toward a world in which it is in the interests of more nations more of the time to keep their promises.

MR. YOO:  Judge Ginsburg?

JUDGE GINSBURG:  Peter Berkowitz is to be thanked for putting the book in something of its academic context, but there's another aspect to that which I'll just mention briefly.

Imagine you're a new professor of law or associate professor of law and trying to decide what to teach.  You might teach oil and gas law, or you might teach international law.  I assure that the trips are better if you teach international law.

However, the requisite for getting into the fraternity of international law teachers is that you have a pretty good command of at least one European language other than English, and most preferably French.  So oil and gas ended up being something I became more familiar with than international law.  But I always was left with this lingering question which was to say, is there any law there?  What is it that I didn't teach?

I was quite amazed when I opened this book about which very little has been said, frankly, about the content of it as opposed to themes, which begins with the following passage:  "International law has long been burdened with the charge that it not really a law.  This misleading claim is premised on some undeniable but misunderstood facts about international, that it lacks a centralized or effective legislature, executive or judiciary, that it favors powerful over weak states, that it often simply mirrors extant international behavior, and that it sometimes violated with impunity."

[End Side A, Begin Side B.]

I articulated that very misconception to a class of mine, and so I was very anxious to read the ensuing 230 pages and find out not just the limits of international law, but at least what was there, what was inside the boundaries, inside those limits.

There is an enormous amount of subtle analysis in the intervening 225 pages before their conclusion in which situations with which most of us, many of us would have some familiarity are explained in ways that are much more powerful than our own inchoate sort of understandings that we bring to this subject.

As an example, dealing with customary international law, the authors set out and I think succeed in demonstrating that the content of customary international law is something that evolves in response to strong state interests, they say the interests of strong states, and that shares all of the characteristics mentioned in this first couple of sentences in the book, that is to say, there is no real enforcement mechanism, there is a great deal of ambiguity about what the content is, and so on.

Indeed, most importantly, that the instances to which law professors would typically point as examples of customary international law are better explained as instances in which there is a coincidence of interests between parties or a coercion of one party by the other, either of which results in a certain regularity of behavior that can be viewed from a distance as the outbreak of harmony and legality or viewed up close as the result of either a coincidence of wants or of coercion.

When virtually the entire corpus of customary international law has been subjected to this type of analysis, the authors move on to deal with treaties which has been the subject of most of their comments today, treaties which are subject to reservations and to withdrawal and which are virtually never enforced by nonaggrieved, that is to say, nonharmed, signatories imposing sanctions upon violators.

Indeed, one of the lessons of the book is that manifestations of international law are essentially always bilateral.  As in the example Professor Posner gave about the violation of the Geneva Conventions, the violation by state A of state B's prisoners' rights under the convention is not going to cause state C to take action against state A even at the moment or later on if they are involved in a conflict themselves.

So what you have is a series of bilateral or multilateral contracts, multilateral ones can be broken down into bilateral ones, for which there is no enforcement mechanism and from which parties can by the terms of the contract withdraw with notice, and of course, may withdraw or violate with impunity if they don't abide by the terms and don't give notice of withdrawal.

So we have both in the customary international law universe and in the treaty world something that again looks startlingly unlike law.  Indeed, it looks very much like what Professor Posner called it in his remarks today and in the book, and that is to say a part of international relations, an opportunity to articulate norms sometimes very precisely in treaties, other times more generally in customary law, norms around which parties can then argue as to whether somebody is in compliance or not.  And it does indeed I'm sure facilitate peaceful settlement of disputes for people to have a reference, particularly a written reference such as a treaty, over which they can then argue as to what constitutes compliance and noncompliance.

At the end of the book, virtually at the end, at 202, before the chapter on the spread of democratic liberalism and its implications for international law, we get pretty much a conclusion to this effect:  the more plausible view is that efficacious international law is built up out of rational self-interest of the type described in parts 1 and 2, that is to say, customary and treaty law.  It is politics, but a special kind of politics, one that relies heavily on precedent, tradition, interpretation and other practices and concepts familiar from domestic law.  On this view, international law can be binding and robust but only when it is rational for states to comply with it.

I think there is a certain degree of contradiction here, frankly.  I think what the authors have demonstrated is that the thing that we associate with international law, customary and treaty law, is a useful device other than law.  It is a useful forum almost for the conversation between states, but it is not law in anything other than the most misleading way.

Indeed, insofar as it relies heavily in precedent, tradition, interpretation and other practices and concepts familiar from domestic law, I found it interesting since I didn't remember anything about precedent or interpretation in the first five chapters of the book dealing with customary and treaty law to find that those terms never show up in the index.  If it really is something in which the discourse takes place in terms of precedents, traditions and interpretation in a way that we do in domestic law, that isn't brought out in the text, and it would be frankly a little surprising to me.

The authors close this point, and I'll close my remarks with their analogy to try to capture that there is really something there, and it says:  "The international lawyer's task is like that of a lawyer called in to interpret a letter of intent or nonbinding employment manual.  The lawyer can use his or her knowledge of business or employment law and other documents and so forth to shed light on the meaning of the documents."  But now imagine that the other side of that letter intent calls in its lawyers and those inevitably disagree with the lawyer that is instanced here in the book and because the interests of their principals have diverged.

It doesn't seem to me that anything resembling law is taking place here.  What's taking place is a negotiation between parties who at one point wanted to make a commitment but haven't bound themselves and may or may not resolve their differences of opinion in the transaction that they were contemplating.  The idea that these lawyers would convince their opposite number or their opposite number's principal to do something that they wouldn't otherwise have done seems to be far-fetched, and indeed, the authors don't claim they would do anything not in their self-interests, and that strikes me as the antithesis of law.

MR. YOO:  Thank you, Judge Ginsburg.  Now we're going to have a different perspective from two people who have actually practiced public international law on behalf of the United States government.  First, Ambassador Scheffer.

AMBASSADOR SCHEFFER:  I'm extremely humbled to be on a panel of such distinguished scholars, practitioners and judges.  I will say though I feel somewhat like I do when I over to Fox News and I'm sort of the fair and balanced component of this panel, so I will brace myself.

But I did want to bring my own sense of perspective to this discussion.  During years in the administration, the 8 years in the Clinton administration, I lived in a world of noncompliance with international law, and in particular with what I call atrocity law, namely, the law that is that body of law that is associated now with the international criminal tribunals which I think has a unique character and which we need to be far more sensitive to what that unique character is.  But it was a body of law that was constantly being abrogated by states, by militias, and by individuals around the world and we were grappling with that phenomenon and we were building courts to try to establish some sense of accountability for that phenomenon, that profound phenomenon, of noncompliance with that part of international law.

When I picked up this book I did have a certain sense of affinity with what I started to read in the book, and I think it's an extremely important and profound book that is now available for years of discussion in circles such as these and others.

Let me first say what I think I found right about the discussion in the book, what I found readily embraceable.

First, the major overall theme, that state interests is a driving force behind any concept of international law, is frankly self-evident to me, but I think what the authors have tried to do is to put that into a multiplier effect far greater than many in the international law field have done before.  In other words, they have amplified the principle of self-defense far more than most scholars have ever done before.  I think they've gone probably too far in my personal view, but I do find that the premise of looking at international law through the prism of the self-interests of states and of state interests is an entirely logical exercise to go through, so I applaud them for that.

I also applaud their focus on customary international law which simply has not gained enough attention, certainly not among popular discussion in this country.  It has moments of remarkable exposure in our federal courts, which all of us teaching international law just thrive on those decisions come out and we actually see the words "customary international law" dealt with by our federal judges because it gives us a further grasp on how our courts are looking at this particular issue.

But I would go further in my analysis of customary international law than where Jack and Eric have gone.  It is true that there are no fast and hard guidelines for customary international law.  I agree with them, and I think I would even strengthen the argument, that one needs to be exceptionally cautious in arriving at a determination that a particular principle of law in fact is customary international law, namely, it somehow drifts out there in the atmosphere as something that we can pull down and regard, similar to what we would do if we were trying to argue a natural law principle in a federal courtroom, something of that nature.  Or perhaps it's more closely aligned to arguments about equity in our courts.

It takes a particular discipline and rigor, it takes an historical perspective, a perspective of philosophy almost to try to grasp what customary international law is.  I would say that I appreciated in their book, and I'm going to do what Judge Ginsburg has prompted us to do which is to keep our focus on the book itself and what's literally inside of it.  There are some very interesting case studies in the book where the authors go back and examine what exactly is this customary international law and was it in fact as universally accepted as we seem to presume it is in some of our court decisions, including the "Paquette Habana" decision at the turn of the 20th century which has become the foundation stone for federal courts whenever they talk about customary international law, it's a Supreme Court decision, and they brilliantly dissect the history of that case.

However, I would caution their caution, namely, I think it's very appropriate to look 100 to 150 years back and look as skeptically as they have on what exactly did constitute customary international law at that time.  But in the last I'd say 30, 40 to 45 years, the international legal system has advanced at a pace whereby an analysis of customary international law will almost inevitably point you towards codified instruments of law, namely treaties, multilateral conventions, which arise from attempts to codify what negotiators and legal experts who negotiate these treaties among nations believe that that is where we have arrived with customary international law and now it's time to actually codify it, to put it down in a treat form.

So we have a much richer resource to draw upon in the last 40 to 50 years to try to ascertain what customary international law actually is.  The reason this is such an important point is that as you all know, not all nations join multilateral treaties.  There are many nations that do not.  There is usually a threshold of a certain number of nations in order for a convention or a multilateral treaty to enter into force.  Once that threshold is arrived at, then you have an in-force treaty, but there are many government that don't enter into those treaties.

The issue is despite their lack of participation in the treaty regime, would they still contend that at least certain key provisions of that treaty now reflect customary international law.  That is in fact literally what has happened, that nations even though they have not entered into the treaty framework are perfectly prepared through their foreign ministries and otherwise and their judges to state that within those conventions and within those treaties, even though our country is not party to it, we can see demonstrated what we regard as principles of customary international law.

The United States has done this consistently, whether you're looking at the Law of the Sea Treaty, the Vienna Convention on the Law of Treaties, the Genocide Convention until it was actually ratified in 1988, the Convention on the Elimination of Discrimination Against Women, the Convention on the Rights of the Child, and even the 1977 Protocol 1 of the Geneva Conventions.

These treaties we are not party to, but we have put on record that we recognize that at least certain principles in those treaties are in fact reflective of customary international law.  So as opposed to looking at examples from 100 to 150 years ago, we have a much richer resource now by which to try to determine what is customary international law.

One of the favorite exercises I have with students is put them through the drill, how would you identify customary international law?  What is it?  Where is it?  How do we find it?  How do we discover it?  How do we investigate it?  It is always a fascinating exercise, but I do think that we have a methodology that has arisen over the years.

I might just say having been so deeply involved with the criminal tribunals and their statutes that with respect to the International Criminal Court statute, their own treaty, we went through years of negotiation in framing Articles 5, 6, 7 and 8 of that treaty and then the elements of crimes under that treaty, and through all of those years of negotiation with all of my military lawyers, my justice department lawyers, my state department lawyers and then the lawyers of all the other countries in front of me, we went through laborious exercises to try to determine what could we say reflects customary international law and put it down as enforceable criminal law in this treaty?  Are we satisfied that we're all on the same page that this is now customary international law, because I was our bottom line, that it should be customary international law as enforceable by a criminal court.

So we go through these exercises and it does advance the cause I think of customary international law, but it is a very cautious and laborious exercise.

I would also say that I agreed with a lot of what they had to say about the gap between the actual performance of nations and their adherence to human rights treaties.  There is a great discussion in their book about that, not all of which I would agree with, but I do think they've touched on a very prominent problem which again takes me back to what I had to deal with for so many years which is that element of noncompliance.

I actually have an alternative view to their thesis which I will try to get out as absolutely quickly as possible because I see John is anxious now to move on.  I would say a few points and then we can draw this out in discussion if you wish to.

I do not view state interests to be the monolithic concept that I think I see reflected in this book.  For me, having been in government and also having been in civil society, state interests is an extremely complex issue.  It is not monolithic.  It changes with the winds of administrations.  And there are always sizable minorities that must not be ignored when considering the interests of the state and how it is expressed on any particular day of the year.  It can change.  It needs to be conditional to reflect the diversity of a liberal democratic society.

So I am very cautious with theories that relies so heavily on a rather straightforward concept of state interests.

Secondly, just on that point of state interests, I strongly believe that state interests can be manipulated by political opportunism, ideological zeal, a misreading of treaties and rules, misreading of facts and of events, and that international law stands in somewhat the same position as constitutional or legislative protection of minority rights:  it stands as a check on the abuse of state interests and thus protects the individual, particularly regarding his rights.  I would bring that entire argument forward if we were to have a discussion about the detainee abuse scandal.

Third, what I believe is a more accurate representation of what we need to consider in examining international law is not only a threat of state interests, but also a theory of what I call global interests, and I distinguish between this country's state interests and this country's global interests.  Global interests is not the same as moral obligation or even the cosmopolitanism theory that is in the book.  State interests is only explained by domestic needs and preferences, but global interests in my view comprises both needs and advantages.  The needs are we need the world and the world needs us, commercially in our trading, diplomatically in our humanitarian relationships, culturally, even in tourism.  Then finally, militarily our global interests projects us far, far beyond our borders in any convenient argument about state interests.

It's a proactive view of international law quite distinct from what I would argue with all due respect is a very defensive, intimidated and insecure view of international law projected on the pages of this book.

For the authors of the book, only if international law is in our self-interest and if we define that self-interest absent international law is international law then relevant to state conduct.  I have a different perspective, and that is to project state interests into the making of international law rather than withdrawing from it or searching for rational choice methodologies to escape from international law.

The advantages that I see are, our global interest is to be in the forefront of international law making.  It does our global interests no good, indeed undermines it to be guided solely by self-interest at home and to view international law as a sideshow to interstate relations.

A much stronger presence in the theaters of international law will advance our global interests, and I think that at the end of the day is an imperative that we have to keep at the forefront of this nation's security.

MR. YOO:  I might add that everyone here seems to believe there is some kind of law because everyone is keeping within their time limits, and if you all believe Eric and Jack's book, everyone would just talk forever and not pay attention.  So I praise you for staying within the time limit voluntarily out of your own self-interest.

Edwin Williamson will be the last commentator, and then Jack and Eric will have an opportunity to respond.

MR. WILLIAMSON:  Again like everyone else, I'm really honored to be on this distinguished panel.

For a nonacademic, noncareer governmental employee who on occasion practices or has practiced public international law, this is a most refreshing book.  It's written in simple English largely free from the jargon from the closed international legal world and the separate language of the social scientists.  Unlike the political theory that I found too theoretical in my college days, the authors provide many concrete examples to explain exactly what they mean.

Jack and Eric have solved for me many of the mysteries of customary international law, and I think the most perplexing is that international lawyers speak very authoritatively about the substance of customary international law, the conceit I think that Peter was referring to.

The problem is that the textbook definition of customary international law consists of two elements, a general and consistent state practice and a sense that the states are obligated to follow that practice.  What this book demonstrates is that the second element, referred to in the international legal world as opinio juris is essentially never satisfied.  States just don't act that way.  Instead, they act out of self-interest.

Furthermore, Jack and Eric show that what is often held out as general and consistent practice is not the case at all, and that as David has already mentioned, I think their discussion of the "Paquette Habana" case really undercuts a fundamental authority on which the legal community bases its claims that U.S. courts must incorporate customary international law in their decisions.

In addressing other types of international law, that is, law based on treaties or other agreements, they come up with some startling insights as well.  For example, human rights treaties do not change states' human rights behavior for two reasons:  human rights abiding states behave that way for reasons other than the treaty; human rights violating states feel no compulsion to change their behavior because international agreements are simply not enforced.

So if customary law doesn't really exist and if treaties are never enforced so that states do not feel the bite of them, does this mean that there really is no such thing as international law, the point that Douglas Ginsburg was referring to, and therefore no such thing as international lawyers?  Again they answer that question as no.  Once can announce an intention to abide by what many characterize as customary international law as David has indicated that we have done on several occasions, and one can enter into an international agreement which the parties may or may not consider a legally binding agreement, another very interesting concept that the authors discuss.  Often in the legal adviser's office we would discuss whether or not something was going to be a legal agreement or just a political agreement, and for the life of me I couldn't really quite figure out what the difference of the consequences were.

In any case, if either of these acts is done, that is, an agreement to abide by what is stated to be enactment of customary international law or you enter into an agreement, the states do it because the benefits to the state of doing so outweigh the costs.  Then where the lawyers come in is that someone needs to interpret what is described as customary international law or the terms of the agreement to determine whether the state is keeping up its side of the bargain.

Even though no international law sheriff comes after the state that violates its international law to take away its house or throw it in jail, there are consequences to violating international law.  Simply, the state may lose those benefits.  In contract law terms, then the state would lose the benefit of its bargain.

Again I think I would disagree somewhat with Douglas Ginsburg's reaction to the analogy of the lawyer who interprets the letter of intent.  Where you have the letter of intent, lawyers spend a lot of time interpreting these nonbinding documents and whether a merger or a legal obligation ever comes out of the handshake represented by a letter of intent may well depending on whether the lawyers believe, and it could be lawyers on opposing sides, that their party's behavior is consistent with the letter or what they determine a party's behavior should be in order to be consistent with that letter.  Again, I think even in the context of dealing with a nonbinding letter of intent, the lawyers are doing something that can have consequences.

I picked out a couple of other things that I thought impressed me, as Jack and Eric also point out, and that is the inconsistency in the views of most public international lawyers.  They urge on the one hand that states increase their international entanglement which at the same time advocate increasing liberalization of democratic institutions.  Essentially, that individuals should be free and they should control their government and not the other way around.  The problem is that there is no mechanism for translating the collective will of individuals into a responsible, accountable international authority.

Following on the spot that Douglas Ginsburg was quoting from on page 203, Jack and Eric say that the mechanism of translating this will is really not necessary, that independent international bodies can be trusted to apply international law because states are willing to abide by international law.  I think I agree with them that this is a mistake in premise and I think it's the reason why the U.S. position on the International Criminal Court is the correct position.  There simply cannot be any such thing as an independent international authority any more than there are domestic independent authorities.  All authorities must be accountable to some form of individual will either directly or indirectly through and ultimately directly accountable authority.

Finally, to address the concerns of people who tend to be on my side of the political spectrum, I think not only do they add answers to the overselling of international law that's done by most public international lawyers, but Jack and Eric also provide an answer to some of the fears of those who claim either that international law does not exist or that entering into international agreements involves an unacceptable loss of sovereignty.  Their answer is don't worry.  The United States will not enter into an international entanglement unless it matched its long-term self-interest.  Granted, mistakes are made and things change so that a good deal at one point becomes a bad deal at another point.  But it should be understood by all after they read this book that states enter into international agreements only because it is in their self-interest to do so and no state should be expected to continue to abide by a deal that is inconsistent with its long-term morally acceptable best-interests.

To segue back into a couple of comments that David made where he expressed some concern about the question of what the state's interests are is a very complicated issue.  I think there is no question about that, and that is why we believe in liberal democratic institutions.  They may not be the perfect way to determine that interest and it may be uneven at times, but again, what is it that Churchill said about democracy, it's not a great system, but it's the best bad one or whatever the expression was.

MR. YOO:  Thank you, Edwin.  Let me in my role as moderator summarize some of the criticisms into four main themes.  Some of them are shared by different people on the panel from different perspectives.

The first one that was shared by Peter and David is whether the theory of the book is incomplete without a theory of how nations actually identify and develop their interests in the first place.  Peter's was that democratic liberalism should be the definition of national interests, David's view was that we have a stake in actually promoting the spread of the rule of law internationally as part of our national interests.  Is the theory of the book incomplete unless you have a theory of how nations arrive at their interests in the first place?

A second question is parts of the book contain overtures to the idea that international law exists and some doubts were raised that that really wasn't true or that you only did that in a half-hearted way, that you really do believe that international law does not exist at all because it seems plain from the book that you don't think there is any moral obligation to obey international law, there is no compulsory institution that forces people to obey international law.  So Judge Ginsburg's point is does international law not exist and why do you make these overtures at the very end of the book that it does and you're not really fooling anybody, especially not him.

Third, and this is also a related point, if your book is correct, why is there international law and international institutions at the rate we've seen them in the last 30 to 40 years?  In other words, the question would be, does your book lack a theory that explains or predicts the amount of international law?  If it's so easy to override, if it doesn't place much restriction states, why have we seen such an explosion in international law institutions particularly during the last 10 to 20 years and why should states bother at all with all this activity?

I neglected to mention at the beginning of the forum that this is part of the American Enterprise Institute's Project on Sovereignty and International Law.  The last question that I would thrown in is, what does this mean for the second term of the Bush administration?  What is the policy prescription?  What is your advice?  We have a new secretary of state.  We have a new national security adviser.  Here's your chance to speak to them.  What does your book and all the things you've said say to the second Bush term?  Should they just put a sign on the door that says "No International Law Will Be Followed Henceforth" and just make it clear to the rest of the world rather than incurring the transaction costs of having to argue that you're not following international law?

I thought I might throw those out as a way to frame some of the common points that people made in the presentation and after respond and discussion some points.  Maybe some of the panelists may want to continue the discussion and then we'll turn it over for questions and answers.

MR. POSNER:  [In progress] --these were exceptionally valuable comments.  As people were talking, I kept thinking I wish I had said it that well or that Jack had said it that well.  I have this impulse to ask you to turn the books and I'll rewrite part of it and then give them back to you.  I can't do that, so I'll talk very briefly about these and I'll use John's organizing questions.

The book needs a theory of how nations develop interests in the first place.  This came up in a number of ways.  We don't have a theory of that, and that of course is an exceptionally difficult question that political scientists have struggled with, where does the national interest come from?  It has something to do with the interests and values of the citizens, it has something to do with the domestic political process.  In the book we simplify things and we simplify them just horribly.

In order to get our theory off the ground so that we can talk about international law and international cooperation, we have to make some exceptionally simple assumptions about what states' interests are.  I think we might have misled people a little bit.  Our view is not that as some realists in the political science world think, that all that states care about is security.  Nor is our view that all that states care about is wealth or trade.

We think that states are roughly most of the time, and especially democratic states, trying to advance the interests of the public.  This can include moral interests as well, and I do want to emphasize that.  I think that in every country people do care about what goes on in other countries.  Sometimes how they care is obvious.  They might give money to victims of a disaster like the recent tsunami.  They might have altruistic concerns which are a little more ambiguous, for example, religious proselytization.  That's in one sense altruistic, but of course it can also create conflict.

The national interest is very complicated and we try to take it as a given.  We try to make reasonable assumptions about it.  Our only point then is that treaty instruments and other forms of international law reflect this complicated version of national interest.  But what has to be excluded from national interest, and I think this is true as a methodological matter but also true as a matter of fact, is that states care about the law just because it's international law, that people care about international law just because it's international law.

That's not an impossible view, but I think there is very little evidence that it's true, and I think that it wouldn't make a whole lot of sense.  The notion that we should spread the rule of law is an empty notion, we have to talk about what the content is, and then that inevitably gets us back to states' interests which are conflicting and the problem of international cooperation which limits the extent to which one can accomplish good things internationally.

The question is, does international law exist?  I'm glad you raised this question.  This is a difficult question.  I'm going to answer it in an indirect way.

There are some people who think that international law is just a bunch of happy chatter, it's people saying whatever they feel in order to rationalize the awful government policies that they're advancing.  Hitler made all kinds of international legal arguments as he was making his plans to invade other countries in Europe.  He would refer back to the Treaty of Versailles, he would refer to principles of international law.

I don't this view is correct, and the problem with this view is very simple which is if it were true and you believe as I do that people are more or less rational, there's a rational expectations point.  At some point people have to figure out that this is all nonsense, that the leaders are just babbling, and when they talk about international law they don't mean anything at all.

The fact is that governments refer respectfully to international law, they say they're complying with it, they spend all of this time negotiating treaties for truly nothing.  If it were meaningless and all that mattered was security competition as the realists believe, that would be a big puzzle.  So that's one extreme on the spectrum, the extreme view that international law is not law.

At the other extreme is the dominant view of legal scholars which is that international law is basically the same thing as domestic law.  It's a little bit weaker, it's imperfect in many ways, but states comply with it and it acts as an external force on states in the same way that domestic law applies to individuals.  As we've tried to explain, this view is too strong.  It doesn't explain why states would treat international law as an external constraint in this way.

Our view is the Goldilocks view, that international law is in the middle.  It reflects real forms of cooperation.  It's often as Ed Williamson brought up a little hard to tell the difference sometimes between pure political cooperation and legal cooperation, but there are differences.  Sometimes it has to deal with the amount of uniformity that is achieved.  There is a lot of reference believe it or not to precedent, tradition and interpretation in international legal argument, and I think people do mean it.  I don't think it's just verbiage.

This reminds me of an argument made by Daniel Dennett.  Dennett is a philosopher who tried to explain the existence of free will scientifically.  He has this theory.  Of course, all scientific theories are causal theories, so it's all about chemicals in the brain bubbling, genetics and evolution.  He has this theory about why we have free well.  Then he says everybody complains to him because they say to him, you just showed that free is an illusion, that actually everything we do is caused by genetics and chemicals.

His point is he doesn't think free will is an illusion, it's something that exists that people talk about that is meaningful, but he doesn't think that it's caused by other factors.

Whenever you have a theory of something, the thing that you're trying to explain always becomes absorbed by the premises of your theory and that's why international law begins to seem a little weak in our theory, but I think that's a misunderstanding of what we're trying to accomplish.  We're trying to explain a real phenomenon and how it works.  It is important to understand though that it is very different from domestic law.

For the second term of the Bush administration--
CLOSING REMARKS

MR. GOLDSMITH:  (In progress) --about which I have little to say, I just want to add one thing to what Eric said in response to Judge Ginsburg's comments.

First let me say thank you very, very much.  Like Eric, I wish we had circulated drafts of the book a year ago so we could have received and incorporated this outstanding comments.  The book would have been much better.

Just to repeat and briefly add one point to what Eric said, we're trying not to take a position on what we view to be the extremely fruitless question that international lawyers have debated for hundreds of years about whether international law really exists.  The problem with that argument is that it's not clear what law is.

Judge Ginsburg during his whole discussion never told us.  He just suggested that this wasn't it.  But when you actually try to figure out what is domestic law, what are the criteria of domestic law, it's not really the command of the sovereign, it's not just what the legislature says, it's not really just what the courts say, and custom somehow fits into it, nonlegal sources affect it.  And when you really try to explain why people obey domestic courts, it's not because the executive is going to enforce everything.  So there are a lot of difficult questions about what law is and why we obey laws in the domestic realm.

We are saying that international law is not completely like domestic law, but we don't want to say it's not really law because what law is a contested idea.  As Eric said, we tried to avoid the point of saying it doesn't exist or it's just like domestic law.  Instead of engaging in those debates, we tried to explain it as we understood it.

In a couple of points to Ambassador Scheffer, the reason we focused on the old examples of custom is for two reasons.  One, we wanted to find example of what people thought uncontroversially were examples of customary international law because we thought those were the best cases for us to analytically pick apart, there is a much richer historical record to draw on, and also it's politically less contested to focus on historical examples rather than modern examples.  We were hoping we could avoid some of the political issues surrounding debates by focusing on some old and uncontested cases.

You're right that today custom really doesn't refer to the same thing exactly as custom in the old cases.  It does have to do less with state practice and more, as you say, with states taking a position on something, just what the norm is, often as you say for the United States who often doesn't ratify treaties, but picks and chooses part of the treaties we think are custom.  We avoided those examples because they're more contested.

Also I would say as a note of caution, that form of binding the United States to international law is normatively dangerous at least from the domestic perspective for the reasons I talked about concerning the democratic basis for international law.

The whole reason we have a treaty process is to make sure that the norms in the treaty that we are embracing are ones that we think we agree with, value and can adhere to.  If the United States can avoid being bound by a treaty by not submitting it to the Senate, the Senate not consenting to it or the president not ratifying it, but then some mid-level bureaucrat in the state department or the defense department could say we agree with this, this and this, and that binds us to the same degree as treaties do, then I think you've circumvented the democratic check at least to some degree that the constitution sought to ensure.  That is a common way of talking about custom, but I think it's a more dangerous way from the domestic perspective.

I don't have anything to add to what Eric said about the state's interest.  It's not monolithic.  We don't think it's monolithic.  We made some simplifying assumptions, and you're absolutely right about that.

I would say, however, that we can identify some state interests fairly uncontroversially.  There are interests by which I mean preferences that transcend administrations.  A couple of example are the ICC and Kyoto which had bipartisan opposition in the Clinton administration and in the Bush administration.  Those interests may be changing.  There seems to be a little bit of movement on Kyoto.  We don't have a good account for that.  Nobody does, but there are interests and preferences that persist across administrations and that can be identified.

Quickly to answer John's last to questions, why have we seen such an increase in international law if it's irrelevant as we say?  We don't think it's irrelevant.  We think it matters.  We don't think it matters the way international law scholars think it matters, but we do think it matters.

Why has it increased?  First of all, it's not clear it has increased.  It depends on how you measure.  In the 19th century there tomes and tomes of books written about customary international law, and custom purported to govern lots and lots of issues.  One thing that's happened in modern times is that the cost of communication, transportation and travel have decreased.  Treaties are better vehicles for--

[End of recording.]