The Assault on International Law.pdf
International law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture became official government policy, President Bush denied that the Geneva Conventions applied to the war against al-Qaeda, and the US drifted away from international institutions like the International Criminal Court and the United Nations. Although American politicians and their legal advisors are often the public face of this attack, the root of this movement is a coordinated and deliberate attack by law professors hostile to its philosophical foundations, including Eric Posner, Jack Goldsmith, Adrian Vermeule, and John Yoo. In a series of influential writings they have claimed that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk. Theses abstract arguments then provide a foundation for dangerous legal conclusions: that international law is largely irrelevant to determining how and when terrorists can be captured or killed; that the US President alone should be directing the War on Terror without significant input from Congress or the judiciary; that US courts should not hear lawsuits alleging violations of international law; and that the US should block any international criminal court with jurisdiction over Americans. Put together, these polemical accounts had an enormous impact on how politicians conduct foreign policy and how judges decide cases - ultimately triggering America's pernicious withdrawal from international cooperation. In The Assault on International Law, Jens Ohlin exposes the mistaken assumptions of these 'New Realists,' in particular their impoverished utilization of rational choice theory. In contrast, he provides an alternate vision of international law based on a truly innovative theory of human rationality. According to Ohlin, rationality requires that agents follow through on their plans even when faced with opportunities for defection. Seen in this light, international law is the product of nation-states cooperating to escape a brutish State of Nature-a result that is not only legally binding but also in each state's self-interest.
Associate Professor of Law, Cornell Law School; co-author of Defending Humanity (OUP) and co-editor of Targeted Killings (OUP)
PROLOGUE: DRAMATIS PERSONAE ; 1. The Office of Legal Counsel ; 2. The Emergence of the New Realists ; 3. Conclusion ; CHAPTER ONE: GAMING THE FEDERAL COURTS ; 1. The Erie Doctrine 2.0 ; 2. The Filartiga Era: Enforcing International Law at Home ; 3. Filartiga's Demise, Parochialism's Rise ; 4. The New Realists go to Washington ; 5. International Law as Interpretive Guidance ; 6. Conclusion ; CHAPTER TWO: PRESIDENTS AND LEVIATHANS ; 1. Public Opinion and Law ; 2. Presidential Power: The New Realist's Normative Argument ; 3. Democratic Decision-making versus Schmittology ; 4. Executive Action During Emergencies ; 5. Why Schmittian Administrative Law is Not Inevitable ; 6. Conclusion ; CHAPTER THREE: THE ATTACK: MISUNDERSTANDING RATIONALITY ; 1. The Game Theory Game ; 2. The Prisoner's Dilemma and Nash Equilibrium ; 3. Law and Self-Interest ; 4. Objections to the Moral Obligation of States ; CHAPTER FOUR: SOLVING THE PRISONER'S DILEMMA OF INTERNATIONAL LAW ; 1. The Toxin Puzzle and Taking the Long View ; 2. The Deterrence Paradox and the Limits of Follow-Through ; 3. Assurances and Cooperation ; 4. Why the New Realists Fail to Understand Rationality ; 5. Rationality and Obligation ; CHAPTER FIVE: WAR AS COOPERATION ; 1. War as Cooperation ; 2. Who can be Targeted? Combatants, Civilians, and CCFers ; 3. Geographical Constraints on Armed Conflict ; 4. Co-Applying the Laws of War with Human Rights ; CHAPTER 6: REENGAGING INTERNATIONAL INSTITUTIONS ; 1. Global Legalism vs. Rational Choice: A False Dichotomy ; 2. Does Globalization Need Taming? ; 3. The United Nations ; 4. The International Court of Justice ; 5. The International Criminal Court