International Law as a Tool of Power Politics

Abstract

The Limits of International Law. By Jack L. Goldsmith, Eric A. Posner. New York: Oxford University Press, 2005. 272 pp., $29.95 (ISBN: 0-1951-6839-9). Most critical analyses of US policy argue that certain actions—such as the invasion of Iraq, the designation of enemy combatants, the Patriot Act, the refusal to sign the Kyoto Treaty, and the withdrawal from the Anti-Ballistic Missile Treaty—are either direct violations of international law or proof that the United States actively disrespects the legal obligations that bind the international community. The normative assumption behind these claims—informed by international law and international relations scholars (including liberal institutionalists and constructivists) along with activists in transnational advocacy networks—is that international law is inherently benign and progressive and, as such, should alter the presumably dangerous and divisive self-interested pursuit of state goals. In The Limits of International Law , however, Jack Goldsmith and Eric Posner cogently argue that international law only reflects the interests of states. As a result, interstate power relations and states' formulations of their interests actually set the parameters for international law. Thus, compliance with and participation in the international law regime is actually endogenous to international politics and relations rather than being some sort of external, normative “brake” or pressure on state actions. The introductory chapter of The Limits of International Law —indicative of the well organized, cohesive, and accessible style of the entire book—conceptually unpacks the link between international law and international relations. It employs rational choice theory to model how states pursue their interests through international law. Rational choice theory assumes that all complex social phenomena can be explained in terms of an elementary, individualistic cost-benefit analysis aimed at making utility-maximizing choices in pursuit of state interests. These interests are defined as state preferences (actually the preferences of political leaders) regarding possible outcomes in various issue areas. In order to examine how states behave vis-a-vis each other when pursuing their interests, The Limits of International Law uses four …