Customer Reviews

The Limits of International Law

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What is international law? Most international lawyers will tell you that there are principles of international legality that are larger than any specific treaty and these principles of legality bind states, sometimes even against their will; there is something called customary international law which is international law that evolved in a decentralized fashion as a matter of custom; and there are human rights norms that are part of customary international law and bind states even if those states never explicitly agreed to them.

In this short, sharp book, Jack Goldmsith and Eric Posner explain why this is nonsense. International law, they argue, is a part of international politics. States enter into treaties and other international legal institutions when doing so serves their interests. Any cooperation among states is a byproduct of that rational act. On the whole, the Goldsmith and Posner are quite convincing.

The theory of the book is, nevertheless, incomplete without a discussion of how nations actually identify and develop their interests in the first place. On this, the authors are silent. Why does Britain feel it is in its interest to sign the Kyoto Protocol? Why do totalitarian regimes sign human rights treaties? Why enter into international agreements at all? This book lacks a theory that explains or predicts the amount of international law. If there is no moral or legal obligation to obey international law, is there even such a thing as international law?

As implied by the title, the authors argue that the moral and practical effectiveness of International Law (IL) is often exaggerated and excessively informed by narrow, legalistic views that inadequately consider state interests and power relationships, or the realities of International Relations (IR).

In the first two parts of "The Limits of International Law", the authors largely rely on case studies to illustrate how state adherence or otherwise to Customary International Law (CIL, or, in layman's terms, the commonly accepted practices of relations between states) and treaty law is shaped by state interests. The discussion of CIL is hampered in my view by a reliance on case studies largely from the 19th century - a number of the authors' arguments could be all too easily dismissed as a historic perspective rather than reflecting current IL practice. The discussions of treaty law and the role of non-legal agreements draw on examples of arms control, human rights and international trade (including within the context of GATT and the WTO) and is somewhat more convincing in arguing that ratification and adherence are often two very different things in the absence of a robust enforcement mechanism.

The last part of the book discusses the "moral authority" perspective of IL, arguing that IL has no inherent moral authority and that compliance with IL should be a function of national interest and public opinion within a state rather than an appeal to the sanctity of IL itself. The final chapter of this part of the book, entitled "Liberal Democracy and Cosmopolitan Duty" offers a sweeping defence of a premise that the legislature and institutions of a state should be responsive to the formally expressed views of its citizens rather than to more multilateral and cosmopolitan pressures from outside the state, and could have served as a robust alternative to the views expressed in Anne-Marie Slaughter's A New World Order if it was longer than 20 or so pages and more rigorously argued - in some respects this final part (chapters 6 to 8) could be considered the skeleton of the book "The Limits of International Law" should have been.

Probably a 3 1/2 star book - I am not quite as impressed with it as I was when I first read in in 2007, but it does offer a honest attempt to examine IL using both IL and IR perspectives and certainly offers a provocatively alternative point of view to most IL literature. While it is written in clear and straightforward language, it is probably only of limited interest or accessibility for the reader with no background in either IR or IL, if not both.

I agree with Ben and Sean - this book is an intellectual sham.

As noted by Michael Scharf in an interview he did with Scott Horton, "Goldsmith and Posner based their conclusions on selective use of anecdotal case studies, and their identification of the motivations of the decision makers is based entirely on conjecture." "Goldsmith and Posner, along with University of California Berkeley Law Professor John Yoo, were part of a group of scholars whose self-proclaimed agenda was to convince government officials, political elites, and the general public that it is permissible for policy makers to ignore international law whenever they perceive it to be in their interest to do so, especially in the context of the war on terror."

The United States only invokes international law as binding law when it wants to constrain other nations. This is another classic case of "American exceptionalism" gone awry.

G+P offer a very refreshing new approach to international law. they suggest that compliance is largely contributed to incentives and not enforcement. states obey international law not because they fear punishment but out of their own interest. ex. most people dont drink and drive not because they fear getting caught but they just simply do not want to risk dying a bloody death. very interesting book. i highly recommend.

I was very disappointed with this book. While claiming to be an academic book, the text reads more like a neconservative, ideological condemnation of international law. The authors seem to be denying a substantial body of evidence, and that is not an issue if they had made their arguements using case study or better yet strong empirical study. I actually tend to agree with many of their points, but they are really not the first ones who are making these arguements. A whole school of thought in international relations has made these arguements for decades, and frankly with much more clarity than this book and highly more complex and fine logic.

The authors should have also recognized that this is a contentious issue in international relations and international law. If you come out with strong claims like this, you better back your ideas with fine reasoning (which the book lacks) and evidence. Otherwise, as I believe will be the case with this book, your book will end up in the back stacks of university libraries after a while.

Without repeating the many (!) deeply critical reviews at length, suffice it to say that this is a poorly researched, badly written and ideologically blinkered polemic. The authors proceed from a simplistic conception of international law to a series of methodologically flawed case studies to draw unsupported conclusions. In particular, while claiming to advance a more rigorous and empirically-based analytical approach to questions of compliance, the authors barely address any of the substantial empirical compliance literature that has developed over the past decade: readers will, for example, look in vain for any reference to Oran Young, Benedict Kingsbury, Michael Byers or other serious scholars who have actually managed to advance more rigorous approaches.