by Tim Meyer*
Monica Hakimi’s The Work of International Law could not arrive at a more important time. In pointing out that international law exists to facilitate conflict as much as to promote cooperation, she insightfully diagnoses conflict aversion as a malady that often afflicts international lawyers. As Hakimi argues, much conceives of international law’s goal as the mitigation of conflict. To the contrary, Hakimi convincingly asserts that cooperation and conflict go together. Yet in February 2017, the central question teed up by Hakimi’s article is how we distinguish conflict that is consistent with the viability of the international legal system from conflict that represents a threat to it.
The Work of International Law opens by describing the “cooperation thesis” – the notion that international law is designed to curb conflicts and promote a shared agenda. The cooperation thesis, in Hakimi’s view, has both positive and normative aspects. Both, Hakimi argues, are incorrect. As a descriptive matter, international law often does not mitigate conflict; it facilitates it in the same way that the rules of chess facilitate conflict between two players. A more legal analogy might be to property rights or other kinds of legal entitlements. In theory, clear entitlements should reduce the scope for conflict. In practice, however, entitlements often promote conflict, either because they are not clear enough or because of behavioral biases. As Hakimi points out, international agreements and customary international law are indeterminate most of the time. They thus provide states with some sense of their own rights and with the means to clarify and expand those rights. Moreover, as in litigation, if two opposing sides are both optimistic about their own chances for success – a common psychological bias – reaching a negotiated resolution becomes more difficult. Just as litigation is a form of conflict that provides a resolution to a dispute that could not be peacefully settled, so too is conflict under international law a means to promote the long-term settlement of disputes.
Hakimi’s point might be understood in slightly different terms: conflict is a form of bargaining. Clausewitz perhaps most famously captured this notion when he said that “war is the continuation of politics by other means.” Thomas Schelling formalized this idea of armed conflict as a form of bargaining in the 1960s, and a robust literature in international relations continues to think about armed conflicts as one means through which states seek to allocate resources and power. Underlying this literature is the notion that conflict is a means of signaling determination to the other side and imposing costs to deter or end a conflict. In the legal context of foreign affairs law, Edward Corwin famously described the Constitution as “an invitation to struggle for the privilege of directing American foreign policy.” Hakimi is right to note that international law – with its vague obligations, fragmented institutions (including the lack of robust judicial review), and, in the case of customary international law, unclear rules regarding its creation – invites much the same kind of struggle.
Viewed in this light, it should hardly be a surprise that international law promotes and facilitates conflict. Without conflict of some kind, differing views on legal rights are hard to work out. Hakimi is thus also right to critique the normative cooperation thesis, the view that international law should mitigate conflict, as a framework for evaluating international law. States are both subject and authors of international law. That means that in choosing whether to cooperate, states must evaluate their actions both in terms of compliance with existing law and in terms of their lawmaking effects. A failure to comply with the law does not necessarily indicate a lack of commitment to international law generally. Rather, it may indicate a commitment to changing the law and the terms on which cooperation occurs. Perhaps the most famous example of lawmaking through noncompliance is the expansion of the territorial sea to twelve miles, a shift in customary law brought about in part by widespread violation of the traditional three-mile limit. A slightly different example would be U.S. unilateral action in response to what it perceived as unlawful conduct under GATT 1947. States agreed to create the WTO Dispute Settlement Body – arguably the most successful interstate tribunal – in part to rein in U.S. unilateralism. Isabel Hull’s magnificent book, A Scrap of Paper: The Breaking and Making of International Law During the Great War, describes in great detail how the laws of war were challenged and ultimately changed in response to state action leading up to and during World War I.
However, to say that conflict can be consistent with international law’s purposes invites the question of how one can tell whether a particular conflict is consistent with international law’s purposes. After all, some conflicts surely are challenges to the larger system of international law, rather than efforts to work within it. And some conflicts surely do make us worse off than we were ex ante. How are we to discern efforts to renegotiate the system’s rules from efforts to tear down the system? Less apocalyptically, how can we tell whether conflict will make the international system better or worse?
Part of the challenge, of course, lies in our lack of perspective in judging our own historical moment. What seems like folly today may seem like wisdom with the passage of time, and vice versa. Michael Reisman once wrote that “international lawyers frequently respond to the appearance of a discrepancy between existing and emerging legal arrangements by heatedly rejecting the new with a fury of virtuous unanimity against the evil whose name is Change.” Hakimi’s article serves as a reminder that change, and the conflicts that bring it about, should not be feared merely because they are new.
The more serious part of the problem, though, is that we are in the midst of a contest over the values that underlie the international legal system. In recent years international agreements and debates in international legal thought have tended to focus on technocratic metrics, like compliance, that at least in principle are capable of measurement. This trend is particularly clear in two aspects of trade law. First, agreements on regulatory harmonization, such the WTO’s Agreement on Sanitary and Phytosanitary Measures or the regulatory harmonization chapter of the Trans Pacific Partnership, push states to use technical information such as the best available science or cost-benefit analysis to design their domestic regulatory programs. Second, debates about trade more broadly have tended to emphasize that liberalized trade creates enormous gains. Trade’s defenders have thus expressed befuddlement over voters’ decisions to pull Britain out of the EU or elect Donald Trump President on a platform of renegotiating or rolling back trade deals.
In part, these appeals to technocracy are aimed at promoting cooperation and encouraging a shared agenda – exactly what the cooperation thesis envisions. If legal and policy disputes can be resolved by measuring whether GMOs cause adverse health effects or trade creates wealth, then seemingly intractable problems might be solved. Yet as recent events have shown, technocracy is limited in its ability to defuse conflicts over core values. British voters outside of London (and Scotland) and American voters off the coasts appear willing to sacrifice the gains from trade (which are of course very real) if it might mean a more equitable distribution of the gains from trade, or if it might restore a lost sense of control over their communities. Technocratic arguments that these voters are wrong – that rolling back trade or restricting immigration will not bring jobs back or create stronger or safer communities – fail to persuade because many voters are not interested in what is measurable. They want a legal regime that they perceive as in step with their values.
It is here that I part ways, at least tentatively, with Hakimi. She writes in conclusion that the cooperation thesis’s flaw is “in assuming that [conflict and cooperation] are antithetical—that one detracts from and must be reduced in order to achieve the other. In fact, international law promotes them both. It helps the participants find and work toward areas of agreement, even as it helps them crystallize and sharpen their differences.” I think this is true much of the time, especially when the core values underlying a legal regime are not contested. But value-driven conflicts can expose the limits of international law’s ability to productively channel conflict. Appeals to technocracy attempt to paper over these fissures, but I worry that – by pretending that conflicts can be resolved without addressing underlying difference in core values – appeals to technocracy actually exacerbate conflicts.
Put differently, I do not think the cooperation thesis is just a pathology of international legal scholarship or thought. I think an aversion to value-driven conflicts is built into much of international law itself. In the end, my prescription is the same as Hakimi’s. International law needs to become more comfortable with value conflicts. The long-term viability of, for example, the trade regime may well depend on its ability to accommodate greater dissent from liberalized trade’s central premises. Conflict can certainly spur those changes. But conflict can also break the tool – international law – for future use.
* Tim Meyer is a Professor of Law and Enterprise Scholar at Vanderbilt University Law School.