This past weekend, Duke Law School hosted a fabulous conference on Curtis Bradley's and Mitu Gulati's new article on Opt Out in Customary International Law (it's called "Withdrawing from International Custom"). Alas, the one big snow storm of the year hit the triangle on Friday night. Though at least one person came from the UK, I was stuck eight miles away at my house in Chapel Hill. I spent the day listening via telephone and watching the blooms on my cherry tree, which thought spring had arrived, freeze. I suppose this post might just as well be titled, "Snowbound."
Most of the conference -- and
the paper as well -- relates to contemporary issues of whether nations should be able to opt out of "customary international law." I guess I'm enough of a traditionalist that I'd think, it ain't custom unless countries have opted in at some point. And I'm enough of a progressive in my thinking (I'll explain this below) that once something is identified as "custom," you shouldn't be able to opt out. But there's obviously a lot of sophisticated thinking on this and particularly on -- if we do allow opt-out -- how that opt-out would work and in what situations we should allow opt out. Most of this is above my pay grade, as President Obama says. But there are two things in the paper that I want to return to. (
I wrote about their paper a while back and what I'm calling the "sine curve" in the interpretation of customary international law.)
First, is the trajectory of the idea of customary international law from 1800 (or thereabouts) to 1920. The starting position is a loose sense of custom -- it's only customary if all "civilized" nations agree; if they don't agree, it's not custom. And it's not binding unless everyone agrees. Or so I'm led to believe from the Bradley/Gulati paper. This fits with what we see in a lot of US cases, like Johnson v. M'Intosh. And it makes sense in an era when we have a robust sense of the dignity of nations; and probably also don't have a strong enough enforcement means to compel other countries to follow any law that they don't agree with. It's also a way to avoid a lot of conflict -- we don't apply rules unless everyone agrees on them. Finally, it fits with the general judicial conservatism of the era.
After the US Civil War, however, commentators and then courts shifted to a different view: that customary international law was not something you could opt out of. Once it was established, it was binding, even if a country no longer agreed to it. And that's more or less the position we are in now, though Bradley and Gulati suggest maybe we should go back to the opt-out regime.
In my earlier post I began to suggest some of the reasons for this shift in thinking, at least in the United States: part of this relates, I'm hypothesizing, to the idea popular throughout the nineteenth century that morals are progressing and that we're in a better position to judge (and enforce) morality than were previous generations. Here are two other data points that I'd like to add to the mix. First, in the years leading into Civil War, the opt-out of customary international law correlated with the southern idea that the Constitution was a compact and that southern states could opt of it. One bit of data supporting this, is that southerners invoked Vattel's international law handbook for their argument about withdrawing from the union. Vattel also was used to support the opt-out from customary international law argument. The nullification controversy in South Carolina in the early 1830s had something to do with the dignity of South Carolina as a state. So it makes sense that they turned to one analogous literature (on international law) as a font for their own domestic law arguments.
Second data point: after the Civil War, our national identity was that the south's moral relativism (slavery is good in some contexts and at some times) -- which was related to the romantic-era ideas about specific context rather than universal, Enlightenment truths -- was wrong. During Reconstruction and following it, what one might term the Second Enlightenment, there were certain moral truths. We had fought a war over those truths and we were expecting that others abide those truths. One explanation for post-war formalism (
I know, I know, it's not clear formalism is still a useful explanatory category) is that it emerged from the sense of moral truths that abolitionists advanced. I'm not sure that's right, but I think that we emerged from the Civil War with at least some missionary zeal for moral truth -- and we also emerged from it with the military clout that we could enforce those principles. We had weight to throw around and we were comfortable doing it. Then there's also a related principle of national self-assurance, born perhaps partly from the "scientific" literature on race that taught that people of European descent were smarter than other races. All of this pointed in the direction of establishing principles and then enforcing them, without allowing some countries to back out. The moral sense was that there was a one-way ratchet up.
Because I love antebellum landscape art, I even have a couple of pictures to illustrate these principles. To illustrate the earlier, opt-out principle, think about Thomas Cole's series of five paintings, Course of Empire. Cole depicts the same physical spot on the landscape over several millenia -- from a state of nature, to the pastoral state, consummation of civilization, then decline, and desolation. Yeah--click on them all. Quite a story of human events on canvas, eh? Well, that's the image you use when you think civilizations advance and decline, in cycles. (Want to know more about this? Here issome more on the idea of progress in landscape art and in property law in antebellum America.)
But, when you're thinking it's one upward climb -- onward and upward forever, well, then you have a very different landscape art. So by the early 1860s (remember, the Civil War began in 1861) we had paintings like Emanuel Leutze, "Westward the Course of Empire Takes Its Way (Westward Ho!)" (1861). (See illustration at right). Or, even better yet, Andrew Melrose's "Westward the Star of Empire Takes Its Way" (1867) (see below right). How's that train headlight to let you know that Progress is on its way?
So by the post-Civil War era, as we enacted the thirteenth and fourteenth amendments, we had a self-image of a nation dedicated to spreading civilization around the world. I suppose the League of Nations is one of the bookends on that optimistic world view. And of course World War II squared our nation's self-image as protector of moral truths. In the tough post-war years we have looked into our souls and wondered how often we have failed in that purpose -- but that's at least our national identity. (And, because this is a post in part about sovereign obligations, I can't resist linking to
an image of a confederate bond. It's hard to see, but the illustration in the upper right is of Richmond -- and it's loaded with scenes of economic progress, like a canal and a railroad!)
Now, some of the participants in the conference were skeptical of the lessons of history. Why should anyone care about this? There are two reasons. The first is sort of inside baseball for legal historians: if we study the question of opt out of customary international law over two hundred years, we can gauge how legal thought changes, particularly how it changes in relation to parallel (or perpendicular?) changes in moral thought and national identity. I get that this is a justification of importance to the legal history crowd, much less so to the international law crowd.
But there is a reason that the international law crowd might actually be interested in this sine curve in the jurisprudence of opt-out. It's because the history seems to matter; I defer to Bradley and Gulati on this, but their paper suggests that the twentieth century history (precedent) is continuing to exert a powerful gravitational pull on the principle that you can't opt out.
To invoke a phrase that Sarah Ludington, Gulati, and I used in
a paper on odious debts, this is a case of applied legal history, where knowing the history may actually help us to clarify the instances, if any, where countries ought to be able to opt-out. Perhaps some will agree that the rule should still be that once a core of nations have advanced to a new, higher understanding of international law, we should bind other nations. I'm enough of a child of the nineteenth century to find that appealing as a doctrine. But I recognize that others may have a very different attitude, perhaps one skeptical of the United States' motivations and wisdom in pushing principles of customary international law.
I read the Opting Out paper a few weeks ago and really, really liked it- it's one of the best pieces of legal scholarship I've read in quite a while. Anyone with any interest in the topic at all should read it.
Posted by: Matt | January 31, 2010 at 10:46 PM