International Law in Crisis: A Qualitative Empirical Contribution to the Compliance Debate

Abstract:     
In the aftermath of the terrorist attacks of September 11, 2001, Professors Jack Goldsmith and Eric Posner published The Limits of International Law, a potentially revolutionary book that employs rational choice theory to argue that international law is really just “politics” and does not render a “compliance pull” on State decisionmakers. Critics have pointed out that Goldsmith and Posner’s identification of the role of international law in each of their case studies is largely conjectural, and that what is needed is qualitative empirical data that identifies the international law-based arguments that were actually made and the policy-makers’ responses to such arguments. In an effort to fill this gap, with the support of a Carnegie Corporation grant, the author convened a series of meetings and exchanges with the ten living former State Department Legal Advisers to discuss the influence of international law in the formulation of foreign policy during times of crisis. This Article reviews the scholarly debate about the nature of international legal obligation, presents the results of the Legal Advisers’ meetings, and provides an in depth examination of a modern case study involving the treatment of detainees in the war on terror which highlights the importance of these findings.

Number of Pages in PDF File: 54

Keywords: The Limits of International Law, Compliance, Politics, Qualitative Empirical Analysis, State Department Legal Advisers, International Law, American Foreign Policy, International Legal Obligation, Torture Memos, Torture Convention, Geneva Conventions, Guantanamo Bay, Abu Ghraib, John Yoo

JEL Classification: K33, K49

Accepted Paper Series