The Right Coast

January 22, 2005
More World Courts?
By Maimon Schwarzschild

Good online debate about international courts like the International Criminal Court -- and about the ambitions of international law generally -- between Eric Posner (law professor at the University of Chicago) and Oona Hathaway of Yale Law School. Posner is a sceptic:
The tribunals established to adjudicate crimes committed in the former Yugoslavia and Rwanda are farcical. They have consumed enormous resources while convicting a tiny number of wrongdoers and (especially in the case of the Yugoslavia tribunal) providing a platform for those wrongdoers to rally their followers and stir up a xenophobic reaction at home. The granddaddy of international courts, the International Court of Justice, is rarely used, frequently ignored, and justly derided.
Hathaway accuses Posner of "putting the interests of the US before all else", but Posner replies
Why is it that international legal scholars always assume that someone who is skeptical about international institutions must put the "interests of the United States above all else"? In none of my writings have I argued that the U.S. should pursue its interests at the expense of other nations. What may distinguish me from others is that I am willing to take American positions as seriously as those of other countries. The common assumption among international law scholars that the U.S.—out of sheer perversity, or because it, uniquely among all major nations, misunderstands its own long-term interests—stands in the way of the proper development of international law (Kyoto, the ICC, etc.) is one of the most discreditable aspects of this field of scholarship.

As an empirical matter, I do think that the U.S. does put its interests above all else, but that in this respect the U.S. is no different from any other nation. The role of the academic is not to berate the U.S. for pursuing its interests, but to understand how self-interested nations can most effectively cooperate with each other.
I think Posner has the better of the argument altogether, but Hathaway makes her points forcefully (and civilly) in favour of the more conventional international law ethos. Read the whole thing.