This concluding section of Part I looks through the lens of American foreign policy ideology to define the core elements of competing conceptions of IL. To make this possible, the chapter begins with an institutional definition of the ‘international rule of law’ drawn from classic tripartite formulations in Anglo-American jurisprudence. Translated to the global level, three questions must be answered to constitute an analytically useful meaning: how to develop non-arbitrary global governance; how to define equality under IL; and how to determine the integrity of international judicial power. A set of coherent answers to each of these questions will constitute a distinct ideologically informed meaning of the international rule of law.
The development of a working definition moves beyond any attempt to find a universal and fixed meaning of the international rule of law by instead identifying various ‘received’ conceptions of the rule of law that exist in the minds of identified legal policymakers. The first of these ideal type conceptions is the ‘legalism’ evident in the scholarship and practice of states, NGOs and individuals who have challenged American IL policy. The elements of this conception are that the international rule of law requires formalised development of global governance; a commitment to the sovereign equality of states; and separation of international judicial powers between state subjects of IL and international legal institutions. Opposition to US policy has converged sufficiently around legalist principles for this to constitute a meaningful ideal type, without denying that each state may hold its own idiosyncratic conception of law.
Turning to American legal policymakers, the constitutive elements of four rule of law conceptions are identified according to the underlying dimensions and ideal types of general foreign policy ideology. Liberal internationalism is centred on America’s global mission to promote the liberty of natural persons through IL. The principles of this conception are: the transnational development of IL; the promotion of liberal over sovereign equality; and democratic checks and balances on international judicial power. Illiberal internationalism is focused on preserving national security by maintaining the capacity to project global power through law. This translates into principles of: pragmatic development of IL; maintaining hegemonic privilege; and consent as the basis for ordering international judicial powers. For liberal nationalism the core of the international rule of law is guarding liberal protections afforded by American constitutional government against external corruption. Resulting rule of law principles are: the protective development of IL as a shield; upholding the inviolability of national sovereignty; and vertical separation between international and municipal judicial powers. Finally, illiberal nationalism perceives IL as a threat to America’s national security and distinctive cultural identity. This translates into principles of: permissively developing IL to maximise US autonomy; relativity of state sovereignty; and upholding the supremacy of municipal over international judicial powers. The meaning of ‘coherence’ in American IL policy becomes that a legal policymaker’s stance on any one of the three international rule of law elements is a reliable indicator of positions taken on remaining elements.
The Indeterminacy of the International Rule of Law
Ambiguity in the meaning of American policymakers’ commitment to ‘the international rule of law’ is symptomatic of a longstanding but inconclusive wider debate about the meaning of the concept.Footnote 1 References are ubiquitous by international legal scholars and practitioners both supportive and dismissive of its analytical worth, reflecting the centrality of the ideal to the Western legal tradition. The UN Secretary General has emphasised that the ‘“rule of law” is a concept at the very heart of the Organization’s mission’.Footnote 2 This was followed by states’ reaffirmation at the 2005 UN World Summit of their ‘universal adherence to and implementation of the rule of law at both the national and international levels’Footnote 3 and in 2012 of their ‘commitment to the rule of law and its fundamental importance for political dialogue and cooperation among all States’.Footnote 4
This apparent consensus dissolves, however, when attention shifts to specifying the substantive meaning of the aspiration in the design and development of IL. Even in relation to municipal law, Joseph Raz warned that ‘promiscuous use’ threatened to reduce the concept to a procrustean ‘slogan’ justifying almost any exercise of government power.Footnote 5 Judith Shklar characterised the contemporary concept as
meaningless thanks to ideological abuse and general over-use. It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter.Footnote 6
The force of criticism aimed at the municipal rule of law only multiplies when aimed at any notion of the international rule of law, including scepticism about whether and how the concept applies to IL at all.Footnote 7 Simon Chesterman is surely correct that widespread support for the concept in global institutions owes much to the silence on precise meaning.Footnote 8
John Murphy’s prominent account in The United States and the Rule of Law in International Affairs declares that, although he is prepared to ‘join the nearly universal support for the rule of law as an ideal’, he does ‘not intend to join the debate over its precise meaning’.Footnote 9 It is a telling choice that a work seeking to evaluate American adherence to the international rule of law avoids staking out a definition of what that would actually mean.Footnote 10 Murphy’s elusion corroborates Brian Tamanaha’s observation that, where the concept is raised, ‘everyone is for it, but [all] have contrasting convictions about what it is’.Footnote 11 Goldsmith and Posner point out, in responding to a review of The Limits of International Law,Footnote 12 that exhortations to promote the rule of law remain incoherent in the absence of a clear definition:
[W]hat, then, is the international rule of law? Is it the idea that international law should apply to states generally and impartially? Regardless of their relative power, or domestic form of governance? Are states supposed to engage in principled deliberation in designing international institutions? Does this mean that relative power and self-interest should be off the table in international negotiations? How, in a decentralized world of necessarily quite different nation-states … are we supposed to establish this international rule of law?Footnote 13
Goldsmith and Posner conclude: ‘Limits does not address the ideal of the international rule of law … because the ideal is inadequately defined – in … [the book review in question] and more generally.’Footnote 14 And yet, despite this criticism, the concept remains fundamental, with even Goldsmith acknowledging that the frequent invocation of ‘rule-of-law rhetoric’ is ‘not empty and is not irrelevant to international law and politics. It often genuinely reflects the values and commitments of the nations uttering it.’Footnote 15
A Working Definition of the International Rule of Law
Despite imprecision and overuse of the term, there remains great value in the ‘rule of law’ as more than a mere ‘synonym for “law”’.Footnote 16 At the most elementary level, the concept encompasses the principle that arbitrary self-judging should be substituted with a ‘pre-agreed, principled procedure for decision-making’.Footnote 17 However, where the concept is applied to the institutional design and development of an actual legal system, some justification is required for a necessarily subjective definition of core elements. This book accordingly looks to British Jurist A. V. Dicey, as the earliest and most frequently cited in Anglo-American jurisprudence, without denying the merit of classic municipal formulations.Footnote 18 Dicey emphasised: ‘the supremacy of law’ over arbitrary power as a defining element of the English and American constitutions;Footnote 19 ‘equality before the law’ for rulers and the ruled alike; and the determination of rights through judicial power.Footnote 20 This has formed the starting point for most major analyses of the concept, especially in an Anglo-American context, and therefore with well-documented strengths and weaknesses. More particularly, modern theorists including Simon Chesterman,Footnote 21 Stéphane BeaulacFootnote 22 and Rosalyn HigginsFootnote 23 have externalised Dicey’s three municipal elements by analogy to the global level. Beaulac adopts Dicey’s formulation on the basis that it ‘is well known and largely accepted; it has also been analysed and criticised from a variety of angles, thus adding to [its] credibility’.Footnote 24 In Chesterman’s report The UN Security Council and the Rule of Law, the common understanding is identified as the ‘application of these rule of law principles to relations between States’ and other legal subjects.Footnote 25
Owing to the gap between municipal and global conditions, Chesterman characterises each of his principles and the international rule of law itself as more of a ‘political ideal’ than a legal reality, with closer adherence to ideals remaining a means rather than an end.Footnote 26 Higgins and Beaulac concur that evidence of the approximation of each element demonstrates, at most, an emergent international rule of law.Footnote 27 For Beaulac in particular, these principles apply only mutatis mutandis to the extent that IL diverges from municipal law. The key differences are that ‘there is no one formal norm-creating authority on the international level; states (not individuals) remain the principal legal actors and there is no enforcement mechanism’.Footnote 28 Higgins concludes that, although ‘the phrase “rule of law” is today very much in vogue in international relations’, the ‘domestic rule of law model does not easily transpose to international relations in the world we live in’.Footnote 29
The tripartite definition nevertheless remains sufficient for the defined purpose of directly comparing commitment to rule of law ideals across competing IL polices. The definition that emerges is an institutional and ‘functionalist’ one, in the sense that it is concerned with ‘how and why the rule of law is used—as distinct from the formal understanding of what it means’.Footnote 30 Here, Chesterman means that the term is articulated at the global level within a political context: ‘as a tool with which to protect human rights, promote development, and sustain peace’.Footnote 31 This also responds to the warning of a former State Department legal adviser not to attribute a ‘talismanic meaning to the phrase “rule of law”’.Footnote 32 Dicey’s formulation can be usefully adopted to analyse legal policy in a specific institutional context without refuting well-known criticismsFootnote 33 or claiming to exhaustively capture the term’s meaning. Coherent answers to three questions amount to a distinct conception of the international rule of law:
1 Developing non-arbitrary global governance: For Chesterman, the first element of the international rule of law is that there be ‘a government of laws’.Footnote 34 Here, the concept of ‘global governance’ is more apt for describing the situation where ‘functions normally associated with governance are performed in world politics without the institutions of government’.Footnote 35 This is a broader concept than government ‘concerned with purposive acts, not tacit arrangements. It emphasizes what is done rather than the constitutional basis for doing it.’Footnote 36 Applying Chesterman’s formula, this is the requirement of ‘non-arbitrariness in the exercise of power’ through increasing codification of law, greater uniformity in its rules and eliminating the distinction between ‘legality’ and self-judging standards of ‘legitimacy’.Footnote 37 Beaulac similarly focuses on ‘the existence of principled legal normativity on the international plane’.Footnote 38 This translates into the development of IL sufficient to ensure ‘certainty, predictability, and stability’ while eliminating ‘arbitrary power’.Footnote 39 Finally, Higgins identifies the first principle of the international rule of law by analogy from ‘an executive reflecting popular choice, taking non-arbitrary decisions applicable to all, for the most part judicially-reviewable for constitutionality’.Footnote 40 In these formulations, the common question is how to develop ‘systems of rule’ through IL that establish non-arbitrary global governance.Footnote 41
2 Defining equality under IL: The second element of the international rule of law is described by Chesterman as ‘equality before the law’.Footnote 42 This entails a ‘more general and consistent application of international law to States and other entities’, with less regard to disparities in power.Footnote 43 Beaulac describes equality as a ‘primordial value of the rule of law’ recognised by all key theorists.Footnote 44 His variation is a question of ‘how these norms are made and are applicable equally to all legal subjects’.Footnote 45 Finally, in Higgins’ analysis, Dicey’s second element requires that there be ‘laws known to all, applied equally to all’.Footnote 46 The principle of ‘equality’ is far from clear-cut in practice, however, since a key meaning of equality is not merely identical treatment but ‘treating like cases alike’.Footnote 47 Indeterminacy unavoidably intrudes when distinguishing between different cases, since external criteria are required to measure what is ‘alike’ and what is ‘unalike’.Footnote 48 As Beaulac concedes, equality ‘cannot mean that all legal norms apply to every state in the same way; some of them may only apply to certain states because of their situations’. Thus, the principle ‘entails similarly situated states being treated in the same way by international law, with no discriminatory treatment tolerated by the system’.Footnote 49 E. H. Carr’s earlier formulation was that there be an ‘absence of discrimination for reasons which are felt to be irrelevant’.Footnote 50 In applying this principle, ‘equality’ simpliciter is shown to be ‘an empty vessel with no substantive moral content of its own. Without moral standards, equality remains meaningless, a formula that can have nothing to say about how we should act.’Footnote 51 Thus ‘equality’ as an element of the international rule of law is not a self-contained ‘organising principle’ for sovereign states,Footnote 52 but rather a question of the proper criteria for defining who is alike under IL and how to allocate correspondingly equal rights and duties.
3 Determining the integrity of international judicial power: The final element is described by Chesterman as ‘the supremacy of the law’, which ‘distinguishes the rule of law from rule by law’.Footnote 53 The meaning of this principle in Dicey’s and Chesterman’s formulations is ‘privileging judicial process’Footnote 54 sufficient to provide ‘determinative answers to legal questions’.Footnote 55 This will be achieved through increasing acceptance of the jurisdiction of international courts and tribunals, and the deference to law by political institutions. Likewise, Beaulac looks to ‘the way in which normativity is enforced through adjudication’.Footnote 56 The clear deficiencies of judicial power at the ‘institutional level’ present ‘what is without doubt the most difficult set of formal values associated with the rule of law’.Footnote 57 Finally, Higgins notes that Dicey’s third element requires ‘independent courts to resolve legal disputes and to hold accountable violations of criminal law, themselves applying the governing legal rules in a consistent manner’.Footnote 58
It is evident from these formulations that this third rule of law element requires significant modification when externalised to the international level. Limited institutionalisation of judicial power at the global level is not equivalent to the absence of these powers; rather, it is the case that states (and the United States in particular) underwrite the international legal system by directly exercising powers variously resembling ‘executive’, ‘legislative’ and ‘judicial’ functions wherever they are not already delegated to global institutions. The consequence is a weak separation of powers, since it is the legal subjects of the system who often determine when and how legal powers are exercised, by creating, interpreting and executing legal rules. The repercussion of power being so diffused is that all three ‘legal’ powers are exercised concurrently by each member state alongside a range of institutions, and in many cases absent an entity wielding supreme authority. The integrity of international judicial power requires a principle for determining what international judicial functions are properly reserved to states and what functions should be separated into international courts and tribunals.
Received Conceptions of the International Rule of Law
The central theme of this book is the role of foreign policy ideology in structuring the reception of IL by legal policymakers. The quest for a universal and fixed concept of ‘international law as an objective, apolitical body of rules’Footnote 59 is thus explicitly set aside as chimerical. Rather, what may appear to be commitment by diverse actors to a unified ideal of the rule of law is instead commitment to divergent interpretations informed by ideological beliefs. Martti Koskenniemi presents the international rule of law as a site for political contestation, describing the ideal as a ‘reformulation of the liberal impulse to escape politics’.Footnote 60 Thus, it is ‘impossible to make substantive decisions within the law which would imply no political choice …: in the end, legitimising or criticising state behaviour is not a matter of applying formally neutral rules but depends on what one regards as politically right, or just’.Footnote 61 Foreign policy ideology informs this choice by setting out the values and interests constituting law for an identified political community. Accordingly, the structure of the four ideal type American conceptions of IL, plus a concept of ‘legalism’, is crossed with the three core rule of law questions to produce a model of competing conceptions of the international rule of law (see Table 3).
Table 3 Competing conceptions of the international rule of law
| Developing non-arbitrary global governance | Defining equality under international law | Determining international judicial power | |
|---|---|---|---|
| Legalism | Formalised development | Sovereign equality | Separation of powers |
| Liberal internationalism | Transnational development | Liberal equality | Democratic checks and balances |
| Illiberal internationalism | Pragmatic development | Hegemonic privilege | Consent-based division of powers |
| Liberal nationalism | Protective development | Inviolable sovereignty | Vertical separation of powers |
| Illiberal nationalism | Permissive development | Relative sovereignty | Municipal supremacy |
Legalism
It would be contradictory to interpret American IL policy through divergent foreign policy ideologies and yet treat all other states as holding an undifferentiated conception of law. That is certainly not the case, with comparative IL scholarship revealing the extent to which legal policymakers in each state look through the lens of their own foreign policy ideologies.Footnote 62 The claim being made here is the narrower one that opposition to US IL policy has converged around the beliefs of ‘legalism’, irrespective of culturally specific conceptions of the international rule of law.Footnote 63 Apart from evidence of legalism’s dominance in the relevant scholarship,Footnote 64 and that certain states do indeed exhibit culturally entrenched commitments to variants of legalism,Footnote 65 there are clear incentives for America’s global counterparts to receive law in forms that diminish advantages of preponderant power. Sustained advocacy for the ‘international rule of law’ has been attributed in part to its perceived ‘utility in challenging American exceptionalism, which threatens … the legitimacy of the international legal order based on the principle of the legal equality of all states’.Footnote 66 Koskenniemi identifies the power lying behind ‘the juxtaposition between European constitutional formalism and the “imperial” challenge to international institutions by the United States’.Footnote 67 There are compelling reasons for treating legalism as an ideological ideal type structuring opposition to US IL policy.
The legalist approach is best defined by Judith Shklar as ‘the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules’.Footnote 68 In the context of IL specifically, Tai-Heng Cheng defines it as the ‘claim to apply prescriptions, through a process of reasoning and logic, neutrally to facts in an international problem’.Footnote 69 The rhetorical attraction of contesting American international legal power in these terms lies in the claim to a ‘depoliticised’ conception of law:
Law aims at justice, while politics looks only to expediency. The former is neutral and objective, the latter the uncontrolled child of competing interests and ideologies. Justice is thus not only the policy of legalism, it is treated as a policy superior to and unlike any other.Footnote 70
In this view, ‘the appeal of a global rule of law lies in the promise of protection against the pathologies of internal domestic politics’.Footnote 71 For Nardin, the international rule of law comes to mean ‘no more than that states conduct their relations within a framework of non-instrumental law’.Footnote 72
Leading accounts describing legalism at the municipal level remain relevant here owing to the power of a ‘domestic analogy’ in which ‘[c]ustom, usage, conventions, and treaties provide a complete system of law, analogous to municipal law’.Footnote 73 Legalist beliefs thus possess the features of ‘a political ideology which comes into conflict with other policies’ no less than do specifically American conceptions.Footnote 74 Such ‘deliberate isolation of the legal system – the treatment of law as a neutral social entity – is itself a refined political ideology, the expression of a preference’.Footnote 75 Moreover, Shklar suggests that conceptions of international (as opposed to municipal) law are ‘perhaps the most striking manifestation of legalistic ideology. Its ideological character is especially discernible because the principles of international law are not supported by effective institutions.’Footnote 76
The ‘legalism’ appellation has more often been employed from a critical perspective to challenge those who oppose American legal policy. Posner defines legalism as ‘the view that law and legal institutions can keep order and solve policy disputes. It manifests itself in powerful courts, a dominant class of lawyers, and reliance on legalistic procedures in policymaking bodies.’Footnote 77 In the externalised form of ‘global legalism’, the concept is defined pejoratively as ‘an excessive faith in the efficacy of international law’.Footnote 78 Nevertheless, in the present work, adoption of the legalist rubric is for comparative purposes only and disavows any strong normative implications. It is merely ‘intended to express social facts about a specialized mode of interaction in the process of decision-making in international problems, without engaging in unnecessary conceptual debates about whether or not this mode of interaction is actually “law”’.Footnote 79 This use in no way excludes the possibility of advocating the normative merits of legalist conceptions. Importantly, Shklar wrote not to defeat legalism but to harness its potential to advance liberal values.Footnote 80 Her primary objective remained ‘to save legalism for liberal politics by showing central liberal ideas like the rule of law to be useful ideologies’.Footnote 81 Criticism was directed only at ‘those of its traditional adherents who, in their determination to preserve law from politics, fail to recognize that they too have made a choice among political values’.Footnote 82
It is instructive to compare how legalist conceptions of IL align with the governance and values dimensions structuring American IL policy. At the risk of stating the obvious, the legalist conception is internationalist, in the sense that it advocates forms of governance through global legal architecture. In particular, legalist conceptions envision domestic decisions with transnational implications, including about war and peace, being transferred to the international level. Along the values dimension, legalism draws upon the ‘cosmopolitan ethos’ embedded in modern IL, which mirrors the aspiration in the wider project of modernity for more than a normatively agnostic international order. Cosmopolitanism requires that the rule of law uphold ‘non-instrumental’ rules that treat persons as ends and not merely means for satisfying political objectives. The effect of seeking politically neutral normative foundations is to displace the controlling role of democratic accountability so central to American understandings of liberalism. Consistently with this idea, authors variously identify the norms underpinning IL with ‘universal values’Footnote 83 and an ‘international value system’.Footnote 84 Believing in the genuinely cosmopolitan foundations of global legal order has the same effect as faith in American exceptionalism, which is the tendency toward a ‘messianic’ IL policy.Footnote 85
It is important to note that included among legalist advocates are prominent American individuals and organisations, which can and have vocally advocated a range of policies in legalist terms (especially within NGOs). The theorised IL policy typology does not encompass all policies capable of being internalised by American citizens, only those influential among American legal policymakers. George Kennan identified an attachment to ‘moralistic-legalistic’ beliefs as an affliction of American foreign policy itself.Footnote 86 However, attachment to legal rules and solutions as described by Kennan is largely encompassed by the liberal internationalist type and remains distinct from legalism as that term is used here.Footnote 87 The adoption of legalist beliefs by Americans other than legal policymakers would not in itself falsify the typology unless such positions were accepted by and structured American IL policy.
Formalised Development of International Law
The first element of the legalist international rule of law is that the primary and secondary rules of the international legal system should be progressively formalised as binding legal obligations. Attainment of the rule of law at the municipal level is not a static condition, but a process of progressively adapting and extending the law to achieve a complete legal system.Footnote 88 The rule of law in the common law world, for example, was advanced in 1689 when the English Bill of Rights removed the monarch’s prerogative to suspend the operation of the law or its application to certain categories of people. International legal scholarship has likewise maintained a strong presumption against declaring a non liquet in which the law remains silent on rights and duties.Footnote 89 The ‘Grotian tradition’ of IL, for example, envisions the ‘subjection of the totality of international relations to the rule of law’.Footnote 90 The rationale behind that sometimes ‘unrealistic’ presumption is ‘to “tame” state sovereignty and to subject states to the rule of law’.Footnote 91 That principle is now recognised in the UN Charter and as the central purpose of the International Law Commission (ILC) in promoting ‘the progressive development of international law and its codification’.Footnote 92
For adherents of legalism, the case for global law displacing global politics relies on the advantages of ‘formalism’, which for Shklar is the idea of law as ‘a self-contained system of norms that is “there,” identifiable without reference to the content, aim, and development of the rules that compose it’.Footnote 93 Shklar saw Hans Kelsen’s formalism as a creature of his own positivist jurisprudence, in which law was ‘its own creation’ progressively derived from his Grundnorm.Footnote 94 Hans Morgenthau described the positivist claim as being to a ‘logically coherent system which virtually contains, and through a mere process of logical deduction will actually produce, all rules necessary for the decision of all possible cases’.Footnote 95 The claimed advantage of this jurisprudence is to establish legal rules ‘without the ideological bias or the historical and cultural myopia’ entailed in non-formal approaches.Footnote 96 For legalism, policy is legitimate because it complies with formalised sources of authority and not merely because it is congruent with policy objectives. Having rules that are progressively more comprehensive, internally consistent and clear becomes the necessary presumption for the central legalist claim that ‘following rules impartially is a virtue’.Footnote 97
Sovereign Equality
US IL policy has been most forcefully challenged by the principle that all states must accede to international rules and institutions according to equal rights and duties. The principle of equality before the law was described by Dicey as the ‘universal subjugation of all classes, to one law’.Footnote 98 Legalism extends that norm to the rights and duties of states as IL’s primary subjects, irrespective of external influence or internal character. For Gerry Simpson, this has meant ‘formal equality’ according to ‘the principle that in judicial settings states have equality in the vindication and “exercise of rights”’. This conception of sovereign equality constitutes a ‘basic rule of law notion’.Footnote 99
The very purpose of the international rule of law in the legalist approach is to minimise the significance of power disparities when determining rights and duties. The structure of the international system remains an ‘association of independent and diverse political communities, each devoted to its own ends and its own conception of the good’.Footnote 100 Such an arrangement necessitates common constraints for respecting one another’s autonomy, with ‘sovereign equality’ becoming the constitutional principle on which the international legal system is constructed.Footnote 101 ‘Equality’ in this sense is a legal fiction, but a necessary one to establish legal rights not dependent on the reality of inequality. To derive rights from actual distributions of power would result in a world with states at the periphery lacking legal personality and a ‘corresponding gradation of rights’.Footnote 102 The rule of law in these terms protects the structure of the international order without reference to the idiosyncratic beliefs and cultural commitments of particular states.
In more robust incarnations, this legalist rule of law element extends beyond mere obligation to respect equal sovereignty and encompasses positive obligations to participate equally in multilateral treaties having near universal membership. A US claim to significant treaty reservations, or exemption entirely even from multilateral instruments such as the Paris Climate Agreement, ‘seems now to require some justification if it deviates from the stance of the great majority of states’. In this sense ‘freedom of contract plays an ever-decreasing role when it comes to law-like treaties’.Footnote 103
Separation of Powers
Closely related to sovereign equality is the principle that the integrity of international judicial power is determined by its separation from competing legal powers of global governance. No domestic system implementing the rule of law would vest executive control over judicial decisions, nor would it allow citizens to determine the legality of their own actions under the state’s civil or criminal jurisdiction. Likewise, the supremacy of IL restricts states’ discretion to determine the scope of their own global privileges and obligations. The domestic analogy influences legalism to ‘read international law in the image of our domestic legalism: multilateral treaties as legislation, international courts as an independent judiciary, the Security Council as the police’.Footnote 104 States continue to exercise the key ‘legislative’ and ‘executive’ functions of global governance and therefore cannot also be the final arbiters in international judicial matters.
Shklar notes that legalism generally supports policies ‘promoting the institutionalization of the administration of justice’. The objective of resolving ‘as many social conflicts by judicial means as possible’ provides the rationale for separating international legal powers and institutionalising judicial power in independent courts.Footnote 105 Crucial here is the legalist presumption that judges ‘lie outside politics; they resolve cases impartially by appealing to the rules’.Footnote 106 At the international level, this translates into supremacy of institutionalised judicial power as the only form of legal power independent of national politics.Footnote 107 Article 20 of the ICJ Statute expresses the ideal that its judges must solemnly declare to exercise their powers ‘impartially and conscientiously’. For Roslyn Higgins, as former ICJ president, this constitutes ‘a proper separation of powers’.Footnote 108 Executive power in the international system is approximated in the UNSC and so, apart from its distortion of sovereign equality, its control cannot properly extend over an international court. The principle was reflected in the separate opinion of Judge Simma in The Armed Activities CaseFootnote 109 in reference to the role of the ICJ as the UN’s ‘principal judicial organ’. It followed that the court had a duty ‘to arrive at decisions based on law and nothing but law’, reflecting the ‘division of labour between the Court and the political organs of the United Nations’.Footnote 110
Liberal Internationalism
Of the four ideal American policy types, liberal internationalism is the most important for understanding the beliefs of American policymakers strongly committed to international legal order. The unparalleled commitment to developing IL has often led liberal internationalists to view alternative American conceptions as ‘IL sceptics’ or what Spiro memorably called ‘new sovereigntists’.Footnote 111 Liberal internationalism identifies the international rule of law in externalisation of American constitutional government to establish a seamless system of law, with international and national legal systems reinforcing universal liberal values. Self-identified liberal internationalist Anne-Marie Slaughter defines the essence of the rule of law as ‘ordered liberty’.Footnote 112 At the global level, however, that ideal involves a ‘continual tension between the requirement under international law that we respect nations, meaning governments, and our own democratic value of respecting all peoples’.Footnote 113 Here, Slaughter invokes the belief that the reason for establishing the rule of law is identical across the municipal and international levels: to achieve ‘a steady progression toward greater freedom of conscience, choice and country – first within America and then beyond our borders’.Footnote 114 This forms the foundational principle of a liberal internationalist conception of IL:
At the most fundamental level, an image of the world as a projection of the United States means that international order, like domestic order, requires the rule of law. From this perspective multilateralism is nothing more than the internationalization of the liberal conception of the rule of law.Footnote 115
General accounts of ‘Wilsonianism’, as an equivalent tradition of thought, have focused on democracy promotion as the ‘first principle’,Footnote 116 the ‘most essential ingredient’Footnote 117 and the ‘keystone’Footnote 118 of the tradition. Liberal internationalism identifies democracy as the conduit between the enjoyment of liberty by natural persons and an international system of law. In 1917, Elihu Root wrote: ‘The world cannot be half democratic and half autocratic … If it is democratic, international law honored and observed may well be expected as a natural development of the principles which make democratic self-government possible.’Footnote 119 Liberal internationalism is distinctive among the American ideal types for valuing democracy as constitutive of the international rule of law itself: ‘the global rule of law depends on the domestic rule of law’.Footnote 120 Believing that liberal states adhere more consistently to the rule of law at both the national and the international level thus presents a utopian vision in which a world of liberal states progressively enforces mutual respect for IL.Footnote 121
The vision of taming global politics through law is what forms the common ground with the legalist conception of IL, with both promoting a ‘Kantian vision of a law-governed international society’.Footnote 122 However, liberal internationalism diverges categorically in identifying the centrality of American power and values to the project. John Ikenberry advocates the establishment of ‘American “rule”’ through ‘the provisioning of international rules and institutions and its willingness to operate within them’. In short: ‘Liberal order building is America’s distinctive contribution to world politics.’Footnote 123 In this way, IL and American constitutional government share the same firm foundation in hard-won political bargains.
Transnational Development of Global Governance
Legalism and liberal internationalism are united by a commitment to closing gaps in the law. The very notion that effective legal regimes can and should be crafted to respond to global challenges is ‘shaped by a liberal conception of the rule of law’.Footnote 124 What distinguishes liberal internationalism is the function of formalised legal authority in achieving that outcome. Whereas legalism seeks the codification of all internationally relevant rights at a global level, liberal internationalism values variants of ‘transnational legal processes’ by which international standards are equally integrated and enforced at the level of US municipal law. For Harold Koh, legal compliance is determined through a process whereby ‘public and private actors, including nation states, … interact in a variety of fora to interpret, enforce, and ultimately internalize rules of international law’.Footnote 125 In this view, increasing establishment of non-arbitrary global governance is achieved through formal and informal processes by which ‘domestic decision-making becomes “enmeshed” with international legal norms’.Footnote 126
By virtue of transnational processes, it may even be preferable to limit development of supranational legal authority where legal obligations are sufficiently internalised to provide effective global governance. To this end, liberal internationalism welcomes the penetration of foreign and international legal decisions into American courts, even to the extent of interpreting the US Constitution in light of universal liberal standards.Footnote 127 A defining element of liberal internationalism distinguishing it from legalism, and every other American conception, becomes the value attached to aspirational support for IL short of formal accession to legal obligations – what one US legal policymaker has termed ‘dexterous multilateralism’.Footnote 128 For legalism, this degrades IL by permitting deformalised obligations, while for each of the alternative American conceptions it falsely suggests legal constraints beyond what the United States is actually willing and able to accept.Footnote 129
Liberal Equality
The second rule of law principle is that the equal access of natural persons to universal liberal freedoms trumps the formal equality of states as juridical legal persons. For liberal internationalism, the purpose of IL is to uphold basic rights of ‘citizens rather than states as subjects’, which is ‘the hallmark of a new and distinctively liberal conception of a world under law’.Footnote 130 To realise this principle, a distinction is drawn between the sovereignty of states who uphold liberal norms through democratic processes and those who do not. The principle of sovereign equality treats states as the legal persons of IL, and in so doing is ‘at least one remove, and often at two removes’ from actual individuals.Footnote 131 Accordingly, states should be treated equally to the extent that their municipal law protects the liberal freedoms of their own citizens, but compromise any claim to equal sovereign integrity should they fail to do so. In its most robust iterations, the commitment to liberal equality can translate into conceptions of IL as a ‘progressive sword to extend those rights to others’.Footnote 132
In cases of conflict between liberal and sovereign equality, exceptionalist beliefs reassure that the proven resilience of American constitutional democracy and its global role promoting these values are the stable foundations for realising true equality in the international legal order. The classic demonstration is the 1999 NATO-led Kosovo intervention, spearheaded by the Clinton administration absent UNSC authorisation. The action to prevent a ‘humanitarian catastrophe’ revealed a willingness to displace the right of Yugoslavia (as it then was) to equally enjoy territorial sovereignty to the right of its threatened ethnic Albanian population to enjoy equality in basic human rights.Footnote 133 In the Princeton Project, Slaughter and Ikenberry advocated the authority of a ‘supermajority’ of democratic states to override the positive obligations of the UNSC where it ‘prevented free nations from keeping faith’ with liberal principles.Footnote 134 Slaughter later became a strong advocate for a form of humanitarian intervention in the Syrian civil war, externalising ideas from Thomas Jefferson and the US Declaration of Independence to render sovereignty contingent on the liberal equality of Syrian citizens.Footnote 135 For Koh, refusal to read a humanitarian exception into IL is flawed for exhibiting an ‘absolutist, formalist, textualist, originalist quality’ that cannot be squared with beliefs that ‘international law should serve human purposes’.Footnote 136 That argument can appear incoherent to competing ideological perspectives, which tend not to distinguish between legalism and liberal internationalism. Goldsmith finds Koh’s position ‘hard to square with his commitment to transnational legal process, which at its core is about taking international legal rules seriously and absorbing them into domestic legal culture’.Footnote 137 Yet it is the crucial nuance of liberal internationalism’s ‘rejection of legalism’ that reveals the foundations of IL in liberal equality.Footnote 138
Democratic Checks and Balances
The keystone role of democracy means that the integrity of IL is determined by the effective separation of powers at the municipal rather than at the international level. There is no mechanism in the international legal system itself to ensure that international courts determine rights and duties solely on a judicial basis. Liberty guaranteed under American constitutional government is achieved not merely through the good faith of its participants, but also by ensuring: ‘Ambition must be made to counteract ambition.’Footnote 139 The primitive structure of the international legal system is, in contrast, incapable of sustaining the integrity of an effective institutional separation of executive, legislative and judicial powers of global governance.Footnote 140 Rather, the anchoring role of the domestic rule of law provides democratic checks and balances on international judicial institutions that counter their inherent political weaknesses.
In some formulations of a liberal legal order, domestic legislative and judicial institutions are projected onto the international plane. This was the view of Wilson’s contemporaries, including Elihu Root in designing the Permanent Court of International Justice attached to the League of Nations. However, the politically influential variant of liberal internationalism does not conceive of IL as centralised in these institutions, but, rather, as existing foremost at the state level, and only secondarily in international bodies. The modern liberal internationalist emphasis on transnational process relies on rules and decisions from the international sphere being internalised and enforced by domestic courts. International institutions should therefore only fulfil this role in a ‘backstopping’ capacity where a state’s own legal institutions are incompatible with the rule of law – by design, or owing to disruption in the case of conflict. Slaughter identifies backstopping as being effected either by ‘provision of a second line of defense when national institutions fail’ or through ‘the ability of the international process to catalyze action at the national level’.Footnote 141 States are incentivised to comply with IL, even absent formal separation of judicial power into international courts.
Illiberal Internationalism
Illiberal internationalism actively engages with global rules and institutions to facilitate foreign policy objectives, but does so for the overriding purpose of strengthening US national security. The rule of law for illiberal internationalists means a flexible framework of legal rules and institutions that facilitates US strategic autonomy and diplomatic justifications. The absence of concern for the moral purpose of states has parallels with the realpolitik and balance of power politics of Continental Europe.Footnote 142 IL is thereby preserved as a diplomatic tool between states rather than a means for vindicating the legal rights of natural persons. Former US Attorney General John Ashcroft objected to the US Supreme Court holding in Hamdan v. Rumsfeld that litigants had rights exercisable against the US government under the Geneva Conventions.Footnote 143 Consistent with an international rule of law between sovereign states, Ashcroft responded that ‘those treaties within themselves have provisions which limit the parties that can raise them and enforce them to the high contracting parties, not to the citizens of various nations’.Footnote 144 This reflects a fundamentally illiberal conception, addressing the interests of individual citizens only indirectly and in the aggregate through the principal focus on national security. Liberal internationalism addresses national security more indirectly, by externalising liberal values into an international legal environment to reinforce global security over the long term. Illiberal internationalism rejects such utopian visions, instead engaging with IL to manage rather than overcome security threats. The conception is further distinguished by a clear separation between the illiberalism of international legal policy and national political values, with no assumption of mutual reinforcement. The privileging of American security interests abroad has nevertheless translated into greater deference to executive power and therefore weaker institutional checks and balances integral to protecting liberty at home.
Pragmatic Development of International Law
Illiberal internationalism seeks a legal framework within which the United States can pragmatically determine the limits of IL. Contrary to both legalism and liberal internationalism, this approach embraces potential gaps and ambiguities in IL for enhancing discretion to exercise effective diplomatic power as a part of law itself. Michael Glennon has sought to define a ‘pragmatist’ method that treats the development of IL as ‘a multifaceted method of problem-solving rather than a formula for finding a single, correct solution’.Footnote 145 The first distinguishing belief is that ‘reliance upon formal legalist categories masks the decision-making process that actually occurs, which is situationally contingent’.Footnote 146 Applying this principle to the vexed question of whether the Geneva Conventions applied to Al-Qaeda and Taliban detainees during the 2001 War in Afghanistan, Glennon considers the full range of factors, including the negative reactions of US allies and the status of US prisoners of war seeking reciprocal protections. For Glennon, ‘[w]hether such factors are, strictly speaking, legal or political is, to the pragmatist lawyer, beside the point: in the real world, these are, to varying degrees, the kinds of factors that international lawyers do take into account’.Footnote 147 This approach, however, does not ‘open the door to a law-free zone’, since it relies on the default principle that ‘in the absence of a rule a State is deemed free to act’.Footnote 148 In this sense, the ‘formalists are, perversely … right that there are no gaps in the international legal order’.Footnote 149 Kenneth Anderson characterises this as a case of the legal system ‘formalizing its pragmatism’. In so doing, pragmatism ‘serves to protect international law from itself’, which is threatened by formalism to become ‘ever more internally “pure” but ever more disconnected from the world of international politics where, ultimately, it must live’.Footnote 150 Using national security interests to clearly demarcate the sphere in which the United States accepts the development of IL, and where it does not, is seen as the only non-arbitrary basis for developing IL. The United States demonstrates fidelity to the international rule of law in the sense of complying with carefully adapted legal obligations, thereby facilitating appeals to law rather than naked power.
Pragmatic development approaches IL as a valuable tool for arranging the relations between states, but otherwise as lacking autonomous institutional force. Former Deputy Secretary of State Robert Zoellick argued that IL ‘can facilitate bargaining, recognise common interests, and resolve differences cooperatively. But international law, unlike domestic law, merely codifies an already agreed-upon cooperation.’Footnote 151 A specific example of this view is endorsement of a developing UNSC practice to alter formal treaty provisions on an ad hoc basis in order to address threats to international peace and security. John Bellinger welcomes the ‘significant development’ of ‘tailoring a specialized body of international law to better work in a specific set of circumstances’.Footnote 152 Stefan Talmon responds critically within a legalist rubric that ‘adaptation’ here is merely a euphemism for ‘abrogation’ of formal treaty provisions pursuant to ‘a culture of exceptionalism’ among Council members.Footnote 153 The practice accordingly ‘raises serious concerns from the point of view of the rule of law’.Footnote 154 From the illiberal internationalist perspective, however, these are examples of pragmatic development in IL, where the coherent logic of strategic and security judgements is valued over arbitrary rule obedience.
Hegemonic Privilege
The fact of American power preponderance precludes any international legal arrangement that presumes to level political power through sovereign equality. Rather, the meaning of equality is that states should be accorded privileges commensurate with their unequal role in upholding the international legal order.Footnote 155 Of the four ideal legal conceptions, exceptionalist beliefs remain weakest in this variant, and so any such privileges are grounded foremost in the prudence of acknowledging preponderant power, with a normative defence of American political culture playing a secondary role only. Prior to his tenure as Secretary of Defense in the Obama administration, Chuck Hagel argued that ‘long-term security interests’ are strengthened where international legal institutions are developed ‘as extensions of our influence, not as constraints on our power’.Footnote 156 The rule of law will never be more than an idealistic aspiration if it requires powerful states to submit to the interests of weaker states as sovereign equals. Neither will it be effective where powerful states are incentivised to remain outside of the law. Rather, IL should seek a stable structure for global power relations, without shifting the balance of that power.
The thinking is evident in Jacob Cogan’s concept of ‘operational noncompliance’, defined as noncompliance with parts of IL for the purpose of upholding the system as a whole through ‘bridging the enforcement gap created by inadequate community mechanisms of control’.Footnote 157 The primitive nature of the international legal system weakens the integrity of law, mandating formally illegal actions of ‘law making and law termination’ to make the system work.Footnote 158 This becomes a principle for granting unequal legal privileges to the United States in answering the question of the proper relationship between sovereign states. Cogan emphasises that ‘law is the congruence of policy, authority, and control, and, thus, without power there is no law’. Accordingly, ‘international lawyers should acknowledge and take account of the special responsibilities of the powerful’.Footnote 159 Exceptionalist beliefs are relevant to the extent that checks against the abuse of operational noncompliance are provided by the United States itself as a state with ‘acculturation’ consistent with rule of law values.Footnote 160
Consent-Based Division of Powers
The integrity of international judicial power is not determined by a general illiberal internationalist ordering principle, but, rather, by states consenting to international judicial constraints according to material interests. Resistance to any non-consensual legal authority reflects scepticism that global ‘judicial power’ is truly independent from real decision-makers situated in states equally motivated to protect relative power.Footnote 161 Any reliance on the separation of powers to prevent abuse of power at the global level will itself be a vulnerability for US security. The scepticism extends to municipal courts that directly exercise international judicial powers via ‘universal jurisdiction’, thereby eliminating the requirement of consent.Footnote 162
The emphasis on consent has manifested in significant resistance by illiberal internationalism to the penetration of IL through domestic courts. Policymakers influenced by this conception have placed a heightened emphasis on the distinction between ‘self-executing’ and ‘non-self-executing’ treaties.Footnote 163 Under this doctrine, the president’s constitutional power to enter into treaties does not create rights enforceable in US courts unless the treaty is designated as ‘self-executing’ and thereby effective by its own force. Treaties deemed ‘non-self-executing’ may not be invoked in the courts unless implemented through legislation passed by the US Congress. The distinction is an elementary principle in American law, but one subject to ongoing disagreement as to the indices of a self-executing treaty and whether the supremacy clause of the US Constitution creates a presumption that treaties are self-executing.Footnote 164 The illiberal internationalist approach favours a narrow interpretation of the doctrine and even the reverse presumption that legislative consent is mandatory for treaty obligations to be enforceable in domestic courts.Footnote 165
Resistance to judicial incorporation of IL into domestic law is evident in Henry Kissinger’s characterisation of international adjudication ‘being pushed to extremes which risk substituting the tyranny of judges for that of government’.Footnote 166 One expression is rejection of the hitherto settled principle that customary IL automatically forms part of the US federal common law.Footnote 167 Ashcroft disapprovingly cited reasoning in Hamdan that the United States is bound by a customary legal obligation contained in a treaty it has declined to ratify. For Ashcroft, it was
strange that a justice of the United States Supreme Court basically is arguing there are only two kinds of international treaties that ought to be appropriate to shape our behaviour: the ones that we have signed and the ones we haven’t signed. I think that carries the international law situation far beyond what is prudent and in the interests of the country.Footnote 168
Similarly, Julian Ku and John Yoo reject judicial incorporation of IL as undemocratic and a challenge to US sovereignty. They argue that ‘NGOs have used creative and effective litigation strategies to develop and enforce global governance regimes via the U.S. court system. Such litigation can result, and has resulted, in the adoption of an interpretation of international law over the opposition of the government’s chief foreign policy organ: the executive branch.’Footnote 169 The penetration of IL may on rare occasions be accepted where it strategically demonstrates credible commitment to previous US consent,Footnote 170 but this remains unlikely where national security is at stake.
Liberal Nationalism
Liberal nationalist legal policy honours liberalism by engaging with IL to guard against global governance and preserve the example of American constitutional government. The ideology has a long tradition extending back to the founding fathers’ belief that the United States represented a break from the European ‘old order of diplomacy’.Footnote 171 Whereas liberal internationalists believe that a greater US role in international governance extends and strengthens democracy, liberal nationalists often perceive ‘fundamental conflicts between democracy and international law’.Footnote 172 IL itself is said to suffer from a ‘democratic deficit’ such that, to the extent of any conflict, IL should be subordinated to domestic laws with democratic legitimacy.Footnote 173 The appearance of unilateralist tendencies is ‘not simply out of self-interest but because the United States is committed to democratic self-government’.Footnote 174 The intervention of IL may well be legitimate for ‘the many nations incapable at present of sustaining flourishing democratic politics’, for whom IL ‘offers the hope of economic and political reforms’.Footnote 175 But the imperative of preserving the outward example of liberalism excludes IL extending inward to America’s own institutions.
Liberal internationalists are wary of any exceptional US role enmeshed in global governance, since ‘American presidents may be tempted to use the role of the world’s law enforcer as a justification for a new American militarism’, thereby fostering broad and unaccountable executive powers.Footnote 176 These beliefs establish a preference for the US Congress to control IL policymaking, as more directly democratically accountable than presidential prerogative.Footnote 177 For these reasons, and consistent with theorised weaker support among elites, few contemporary legal policymakers advocate IL policy primarily in these terms, although it has enjoyed some resurgence, including in the policy platform of 2016 and 2020 Democratic presidential candidate Senator Bernie Sanders. The outlier status of liberal nationalism was demonstrated in the wary reception toward 2012 presidential candidate and then Congressman Ron Paul and his son Senator Rand Paul, each of whom has been categorised according to equivalent belief types.Footnote 178 Both have cast themselves as ‘libertarian’ candidates, and for this reason oppose US government intervention domestically and internationally as equally a threat to liberal values.Footnote 179
This legal conception frequently aligns with the two illiberal American conceptions, with all united by a scepticism toward the utopian visions of legalism and liberal internationalism. Legal policymakers advocating quite illiberal policies have accordingly been drawn to justify municipal consequences of their positions consistently with liberal nationalism. Curtis Bradley and Jack Goldsmith have bolstered support for pragmatic US engagement with IL by arguing that the automatic incorporation of customary IL into American municipal law ‘is in tension with basic notions of American representative democracy’. The danger is that law derived from the ‘views and practices of the international community’ is ‘neither representative of the American political community nor responsive to it’.Footnote 180 Similarly, Ku and Yoo warn that the pressure to conform to international legal obligations ‘could undermine the existing balance of powers’ among the three branches of US federal government.Footnote 181 In these cases, the outwardly focused illiberal internationalism is treated as complementary to rather than in competition with the inwardly focused liberal nationalism.
Protective Development of International Law
The key interest of liberal nationalism is limiting the reach of IL so that it does not encroach on the integrity of American constitutional government. IL is supported primarily as a protective framework shielding liberal states as autonomous political units. The international rule of law is therefore advanced by developing non-arbitrary legal rules necessary to uphold the stability of global relations, but without shifting the legal rights and obligations of American citizens. This creates scepticism toward institutions of global governance, which necessarily take up functions otherwise left to states themselves. The UN itself may pose a threat, for drawing the president to engage internationally, while providing authority to bypass Congress to force domestic compliance with UN standards. On this basis, Ron Paul repeatedly presented a bill to the House of Representatives to end US membership of the UN for threatening American values ‘from the beginning’, while his son has made similar gestures in the Senate.Footnote 182 Rubenfeld rejects suggestions that such wariness toward IL represents a ‘categorical’ rejection of law. Rather, the United States can legitimately submit to treaties provided ‘the agreement is narrow in scope, and when it creates no third-party, supranational entities empowered to supervise U.S. policy or to make, interpret or apply U.S. law’.Footnote 183 In its strongest form, a liberal nationalist policy would isolate the United States from negotiations to establish international institutions and treaty regimes and engage only to craft laws that oppose encroachment on US autonomy.
IL may equally be developed protectively as a constraint against US government actions seen to erode liberty.Footnote 184 During the 2012 presidential campaign, Ron Paul made perhaps the only supportive statement about IL among Republican candidates when he called the practice of waterboarding ‘torture’. This he condemned as ‘illegal under international law and under our law’, with it being ‘really un-American to accept on principle that we will torture people that we capture’.Footnote 185 This perhaps seems contradictory given Paul’s strong stance against the UN, but it is logical when read as an implication of Paul’s own legal conception grounded in liberty. From the opposite side of domestic politics, Sanders has also appealed to a rule of law that constrains executive discretion. On issues of ‘War and Peace’, Sanders committed in 2016 to ‘[c]lose Guantanamo Bay, rein in the National Security Agency, abolish the use of torture, and remember what truly makes America exceptional: our values’.Footnote 186 So, arguing sharply distinguishes liberal nationalist policymakers from counterparts who invoke similar arguments to defend American sovereignty but have been among the strongest advocates of illiberal legal rights, including to engage in forms of torture.Footnote 187
Inviolable Sovereignty
It is precisely the absence of political and normative equality between sovereign states that necessitates a framework of international legal rules maintaining inviolable sovereign equality. Here, the United States, ‘suspicious of the dangerous outside world, uses international law as a shield, reifying the state system to protect its borders and its citizens’.Footnote 188 IL thus upholds reciprocal rights and duties by America and its global counterparts not to interfere in one another’s affairs. Because the US system is sui generis, this equality does not extend to a positive obligation to participate equally in multilateral institutions. Equality is expressed only as a negative obligation to respect inviolable sovereignty – including as a constraint on the United States itself. Perennial third-party presidential candidate Ralph NaderFootnote 189 levelled strident criticism at president Obama for taking actions that ‘violate international law because they infringe upon national sovereignties with deadly drones, flyovers and secret forays by soldiers’.Footnote 190 In an analysis by Ron Paul’s own think tank, Flynt and Hillary Leverett criticised the Obama administration’s argument that, under the Nuclear Non-proliferation Treaty, Iran has no legal right to enrich uranium, even for civilian purposes. For the Leveretts, ‘the right to indigenous technological development – including nuclear fuel-cycle capabilities, should a state choose to pursue them – is a sovereign right’.Footnote 191 No breach of IL had therefore occurred allowing the United States to intervene internationally. These arguments contradict the assumption of hegemonic IL and realist political scholarship that the United States will always seek to shape law to enhance its autonomy. For Nader, interpreting sovereignty as a constraint on US action draws back to a demand that ‘the United States comply with international law and our constitution on the way to ending the American Empire’s interventions worldwide’.Footnote 192 Paul’s institute seeks to constrain US foreign policy by denying the Obama administration’s ‘main motive’ of seeking ‘to maximize America’s freedom of unilateral military initiative and, in the Middle East, that of Israel’.Footnote 193 In both cases, states are treated as sovereign equals in law precisely to protect the integrity of the American polity against foreign entanglement.
Vertical Separation of Powers
For liberal nationalism, IL governs the relations between states while municipal law governs the relations between American citizens, which therefore should not conflict as a matter of course. The international rule of law is determined by a vertical separation between international and domestic judicial powers, rather than by a horizontal separation between international executive, legislative and judicial powers. Legalist conceptions emphasise the separation and institutionalisation of international judicial power while vertically integrating international judicial power as a check on domestic judiciaries. Liberal nationalism, in contrast, strongly resists any design purporting to fuse the judicial power of international courts to American law. The constraints of IL are ultimately set by real policymakers who represent particularistic state interests and values foreign to the traditions defining US constitutional government. To the suggestion that the United States could democratically elect to submit to such constraints, Jed Rubenfeld provocatively warned that the ‘crucial transition to beware is the moment when international cooperation shifts to international governance … A person can sell himself into slavery voluntarily, but he will still be a slave thereafter.’Footnote 194 In this way, IL continues to operate as a framework for the basic structure of global relations without unsettling constitutionally guaranteed liberal values at the national level.
Illiberal Nationalism
Illiberal nationalism rejects the strategic value of a freestanding body of IL altogether, engaging only to defend national security and protect non-universal cultural values and identity. More than any of the other ideal types, illiberal nationalists are defined by a transactional conception of IL, being ‘fundamentally dubious of the ability of law to order relations in an international community that is strikingly reminiscent of a lawless Western frontier town’.Footnote 195 In this tradition, John Bolton, former US ambassador to the UN and later a national security adviser to President Trump, sees any submission to IL as ‘the first step to abandoning the United States of America. International law is not law; it is a series of political and moral arrangements that stand or fall on their own merits, and anything else is simply theology and superstition masquerading as law.’Footnote 196 The conception has a lineage in pre-enlightenment worldviews of an order founded in folk wisdom and tradition, with adherents of Mead’s equivalent belief type valuing ‘rule of custom’ over the rule of law.Footnote 197
Former acting US Attorney General and federal judge Robert Bork criticised IL as an expression of global anti-Americanism that targets both American moral standing and US national security.Footnote 198 For Bork, IL advocates are characterised as liberal elites who, consistent with legalism and liberal internationalism, are in search of ‘transcendent principles and universalistic ideals’.Footnote 199 Elites wield these values in a ‘transnational culture war’ that circumvents popular democratic will.Footnote 200 Bork identified both himself and the ‘great mass of citizens’ with a contrary conception, centred on ‘particularity – respect for difference, circumstance, tradition, history, and the irreducible complexity of human beings and human societies’.Footnote 201 These values form the populist heart of illiberal nationalism, which is incompatible with the deliberately elitist intent of internationalist legal conceptions that seek to remove popular passions from foreign policy. Daniel Bodansky clearly distinguishes Bork from Goldsmith and Posner in this respect, for viewing IL as solely a constraint rather than a tool for American foreign policy.Footnote 202
The conception is distinct from illiberal internationalism to the extent that it interprets IL through substantive cultural values at all. Michael Ignatieff observes that Senator Jesse Helms and Southern senators generally have made the United States unique among its peers for having ‘a strong domestic political constituency opposed to international human rights law on issues of family and sexual morality’.Footnote 203 Bork specifically criticised the transformation of modern IL into ‘a body of rules about the rights of individuals against their own nations’Footnote 204 and the trend for courts to strike down traditional moral prohibitions by reading ‘universal’ values into the constitution.Footnote 205 Doing so may ensure that ‘we are all more free’, but it would be an improper freedom ‘to act in ways that most of us had decided were unacceptable’.Footnote 206 Ultimately, there ‘can be no authentic rule of law among nations until they have a common political morality or are under a common sovereignty’, neither of which is at hand.Footnote 207 Illiberal nationalists thus diverge from illiberal internationalists in willingly acting against ‘short-term interest’ to defeat the existential threat that IL will ‘constrict the United States’ over time.Footnote 208
Permissive Development of International Law
Where illiberal nationalists do engage with IL, they seek to interpret law permissively to eliminate any possible constraining effect on American foreign and domestic policy. Global governance is denounced as a strategy of global adversaries to constrain American sovereignty and its exceptional political culture. Any IL development that constrains US global autonomy is aggressively opposed, particularly in areas such as military policy where the United States maintains a material advantage. Here, Bork argued that it was one of the ‘great deceptions practiced by proponents of international law that there is something deserving the name of “law” by which the use of armed force between nations can be controlled’.Footnote 209 Paul Wolfowitz, Deputy Secretary of Defense under President Bush 43,Footnote 210 likewise dismissed use of force rules for requiring the United States to go ‘to the United Nations, or previously the League of Nations, to get a unanimous vote to do nothing, or whatever it is that those organisations do’.Footnote 211
The critique that IL is ‘infinitely flexible and indeterminate’Footnote 212 sustains a strategy of employing the rhetorical form and language of IL while rejecting accepted conventions of international legal reasoning drawn from non-American sources. The presumptively arbitrary constraints of IL are thereby neutralised through permissive interpretations that privilege national interests. This does not mean flagrant breach of treaty obligations, however, but rather that illiberal nationalists ‘hesitate to ratify a treaty if they felt that at a later date the treaty would either limit American freedom of action or put the US in the position of having to break its freely given word to achieve some necessary goal’. Equally, however, adherents will ‘insist on being the sole and final judge of whether they had kept or broken their word’.Footnote 213 President Bush 43 sought to redefine the UN’s powers in entirely permissive terms in 2002 by labelling it ‘irrelevant’ unless it sanctioned an otherwise illegal use of force in Iraq.Footnote 214 Likewise, the notorious ‘torture memos’ sought to alter a well-settled definition of torture by adopting legalistic phrasing from an unrelated healthcare law.Footnote 215 That latter approach was rejected by illiberal internationalist lawyers such as Jack Goldsmith, among other senior legal policymakers, for failing to follow any accepted international conventions for interpretation.Footnote 216 Nevertheless, each of these cases remained consistent with the principle of permissively developing IL to remove any possible encumbrance on American foreign policy.
Relative Sovereignty
For illiberal nationalists, the principle of sovereign equality is foremost an attempt to constrain legitimate discrimination between states on moral and political grounds. The mischief is to create what Bork refers to as a false ‘moral equivalence’ that prevents the United States from distinguishing between democratic and tyrannous regimes.Footnote 217 Phyllis Schlafly colourfully denounced President Clinton’s enthusiasm for international treaties by invoking Saint Paul’s Second Letter to the Corinthians: ‘Be ye not unequally yoked together with unbelievers, for what fellowship hath righteousness with unrighteousness?’Footnote 218 This belief is the foundation of relative sovereignty, where IL should be developed to recognise degrees of sovereignty based on the threat states pose to US national security and cultural values. Ronald Reagan’s ambassador to the UN Jeane Kirkpatrick declared, in relation to the international rule of law, that ‘we are as committed to that proposition today as ever in our history’.Footnote 219 Her defence of US intervention in Nicaragua was expressed in illiberal nationalist terms, however, according to which the principle of ‘equal application of the law’ was flawed for assuming that ‘all parties want the same thing, that what they really want is peace’. In circumstances where Nicaragua was seen to defy that assumption, the United States could not ‘feel bound to unilateral compliance with obligations which do in fact exist under the [UN] Charter, but are renounced by others. This is not what the rule of law is all about.’Footnote 220
The idea of states enjoying sovereignty commensurate with their moral standing has been expressed in the concept of ‘rogue states’.Footnote 221 The National Security Strategy 2002 defined the attributes of ‘rogue states’ to include that they ‘display no regard for international law … and callously violate international treaties to which they are party’ and that they ‘reject basic human values and hate the United States and everything for which it stands’.Footnote 222 Despite being couched in terms of IL, the rogue state concept strengthened the so-called ‘Bush Doctrine’, of a right to ‘pre-emptive’ self-defence, contrary to any generally accepted legal interpretation.Footnote 223 The heart of the doctrine can be interpreted as a claim that states exhibiting proscribed attributes were ‘unlike’ the United States and therefore enjoyed a relative diminution in sovereignty. Eyal Benvenisti suggests that the doctrine upholds the principle of ‘reciprocity’ in relation to states who fail to mutually honour the foundational obligations of the international legal system.Footnote 224
The notion of relative sovereignty has clear parallels with the theorisation of Carl Schmitt, who envisioned a bifurcation of legal personality between the full rights enjoyed by ‘civilised’ European states and the lesser rights of states deemed otherwise.Footnote 225 William Scheuerman’s review of the Bush 43 response to the ‘War on Terror’ goes so far as to suggest that ‘anyone familiar with Schmitt’s work on international law occasionally finds herself wondering whether the White House playbook for foreign policy might not have been written by Schmitt or at least by one of his followers’.Footnote 226 This is consistent with Simpson’s observation that states have long been ‘differentiated in law according to their moral nature, material and intellectual power, ideological disposition or cultural attributes’.Footnote 227 Powerful states have adopted a stance of ‘anti-pluralism’ to reduce the sovereign rights of ‘outlaw states’ deemed ‘mad, bad or dangerous’.Footnote 228 All such determinations by illiberal nationalists become a claim to respect sovereignty under IL in proportions equal to the threat that each state poses to US national security and values.
Municipal Supremacy
The straightforward principle for determining the integrity of judicial power is municipal supremacy, to the point of denying the character of so-called judicial power at the global level. In a 2000 address to the UNSC, Senator Helms declared: ‘We abide by our treaty obligations because they are the domestic law of our land, and because our domestic leaders have judged that the agreement serves our national interest. But no treaty or law can ever supersede the one document that all Americans hold sacred: the U.S. Constitution.’Footnote 229 For illiberal nationalists, the ‘insidious appeal of internationalism’Footnote 230 is that IL advocates have sought to have ‘liberal views adopted abroad and then imposed in the United States’.Footnote 231 The role of international courts in this process is aimed at ‘the wholesale reconstruction of American society’ according to views antithetical to the traditions that define the American people.Footnote 232 The proper policy approach toward institutionalised global judicial power is therefore to oppose forcefully its influence over American government and, ultimately, its relevance to questions of international politics.
The international rule of law is not advanced through attempts to differentiate and separate forms of global power and designate some as independent ‘judicial’ powers. There is a long history of the United States refusing to recognise or withdrawing consent to international judicial forums. In 2018, John Bolton responded to an ICJ ruling ordering the United States to ease sanctions against Iran by saying that ‘the ICJ failed to recognize that it has no jurisdiction to issue any order with respect to sanctions the United States imposes to protect its own essential security under the treaty’.Footnote 233 Bolton then announced a decision to withdraw from dispute resolution provisions under the 1961 Vienna Convention on Diplomatic Relations (VCDR) and to ‘commence a review of all international agreements that may still expose the United States to purported binding jurisdiction dispute resolution in the International Court of Justice. The United States will not sit idly by as baseless, politicized claims are brought against us.’Footnote 234 In neither case was the jurisdiction of the ICJ in doubt from any orthodox legal interpretation, yet it remained inherently illegitimate for illiberal nationalists. The underlying legal conception was more nuanced than a simple denial of IL, with Bolton reminding that the United States remained a party to the VCDR and therefore ‘we expect all other parties to abide by their international obligations under the Convention’.Footnote 235 From competing American ideologies the withdrawal appeared to be ‘an overreaction, motivated more by ideological dislike of the ICJ … than by any real legal necessity’.Footnote 236 Yet, for Bolton, the policy was precisely an ideological necessity: rejecting the legitimacy of judicial power at the international level.
Chapter Conclusion
What unifies the four American conceptions of the international rule of law is the belief that the United States is not a like case in international legal matters. Each of the ideal types in some way draws upon exceptionalist or hegemonic beliefs that justify greater autonomy and unequal treatment as a principled position for the United States within the international legal system. The legalist principle of sovereign equality – that all states enjoy equal legal personality without reference to their international power – is itself founded on a conscious legal fiction that all states are ‘like cases’. Yet, for that reason, the presumption is inconsistent with conceptions of law that incorporate policy considerations about America’s role in the operation of the legal system itself. Nico Krisch concluded that ‘the hierarchical superiority of the United States is either inconsistent with sovereign equality, or – if one wants to defend hierarchy – sovereign equality has to be abandoned as a principle of international law’.Footnote 237 Any recognition of the unequal normative status of the United States entails the fiction of sovereign equality falling away in order to advance the international rule of law. For US policymakers, the principle that ‘like cases are treated alike’ is filtered through foreign policy ideology to reconcile privileges and the principle of ‘equality’ within the foundations of IL.
Each of the competing conceptions entails a distinctive definition of American national interests and a strategic formulation for advancing them through law. Mary O’Connell defends her liberal internationalism by challenging the illiberal internationalism of Goldsmith and Posner, not because they err doctrinally, but because ‘if the authors of this and other attacks on international law believe they are acting in the interest of the United States, or any state, they are mistaken’.Footnote 238 National interests underpinning the concept of law are informed and structured by foreign policy ideology, with each formulation set out in this chapter founded on an alternative understanding of the purpose of IL in American global engagement. The meaning of ‘coherence’ in American policy toward the ICC, the subject of the remainder of this book, becomes that a legal policymaker’s stance on any one of the three international rule of law elements is a reliable indicator of legal positions taken on the remaining two elements.
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