Between Power and principle unexamined by other interest-based scholars, and looks to the political institutions, interest groups, and state actors that shape state preferences to explain state behavior in the international arena. In this view, states pursue the aims preferred by "powerful domestic interest groups enfranchised by representative institutions and practices. Hence, state behavior is the result of complex interactions between political players at the domestic level, and cannot be explained as simply resulting from power-maximizing behavior or strategic Iculation Dy a unitary actor This strand of interest-focused thought, like most norm-based explanations of state decisions to join treaties, calls for us to peer inside the state, looking for the individuals and groups that influence governments through political institutions and social practices. The Supranational Adjudication, 107 Yale L 273, 277-78( 1997)(noting the critical role that domestic government institutions play in securing compliance with supranational adjudications); Anne-Marie Slaughter, International Law in a World of Liberal States, 6 Eur J ntl L 503, 504(1995)(integrating a theory of international law with liberal international relations theory and its accepted assumption that states domestic political structures and ideologies alter the way states behave); Anne-Marie Slaughter, The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations, 4 Transnatl L Contemp Probs 377, 397-98(1995)(articulating a conception of the un based on liberal international relations theory and its focus on state-society, rather than state-state, relations) Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AmJ Intl L 205, 207(1993)("Liberals focus not on state-to-state interactie least not in the first instance, but on an analytically prior set of relationships among states and domestic and transnational civil society. )(emphasis in original); Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine. 92 Colum L Rev 1907, 1920-21( 1992)(examining the transnational legal relations between liberal and nonliberal states and exploring the ways differing domestic political institutions can shape how states conduct their interstate relations). Moravcsik outlines three separate variants of lberalism--ideational liberalism, commercial liberalism, and republican liberalism. Moravcsik, 51 Intl Org at 515 As Andrew Moravcsik puts it: Societal ideas, interests, and institutions influence state behavior by shaping state preferences, that is, the fundamental social purpose underlying the strategic calculations of governments. Moravcsik, 51 Intl Org at 513(cited in note 39 41 See id at 519-20 42 In a recent article on the origins of the postwar European human rights regime, for example, Andrew Moravcsik uses the liberal approach--specifically a variant he terms republican liberalism'to explain the creation of the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222(Nov 4, 1950, entered into force Sept 3, 1953. In Moravcsik's republican liberal perspective, governments in power prefer to maintain maximum discretion, yet they also wish to reduce political uncertainty. Where political uncertainty is great, states may be willing to surrender discretion to human rights regimes, for example, in order to constrain the actions of future governments. International cates like the ECHR, in other words, offer governments a means of "locking in particular preferred domestic policies. " Moravcsik, 54 Intl Org at 225-26(cited in note 7)
Between Power and Principle 16 unexamined by other interest-based scholars, and looks to the political institutions, interest groups, and state actors that shape state preferences to explain state behavior in the international arena.40 In this view, states pursue the aims preferred by “powerful domestic interest groups enfranchised by representative institutions and practices.”41 Hence, state behavior is the result of complex interactions between political players at the domestic level, and cannot be explained as simply resulting from power-maximizing behavior or strategic calculation by a unitary actor.42 This strand of interest-focused thought, like most norm-based explanations of state decisions to join treaties, calls for us to peer inside the state, looking for the individuals and groups that influence governments through political institutions and social practices. The Supranational Adjudication, 107 Yale L J 273, 277–78 (1997) (noting the critical role that domestic government institutions play in securing compliance with supranational adjudications); Anne-Marie Slaughter, International Law in a World of Liberal States, 6 Eur J Intl L 503, 504 (1995) (integrating a theory of international law with liberal international relations theory and its accepted assumption that states’ domestic political structures and ideologies alter the way states behave); Anne-Marie Slaughter, The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations, 4 Transnatl L & Contemp Probs 377, 397–98 (1995) (articulating a conception of the UN based on liberal international relations theory and its focus on state-society, rather than state-state, relations); Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 Am J Intl L 205, 207 (1993) (“Liberals focus not on state-to-state interactions, at least not in the first instance, but on an analytically prior set of relationships among states and domestic and transnational civil society.”) (emphasis in original); Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 Colum L Rev 1907, 1920–21 (1992) (examining the transnational legal relations between liberal and nonliberal states and exploring the ways differing domestic political institutions can shape how states conduct their interstate relations). Moravcsik outlines three separate variants of liberalism—ideational liberalism, commercial liberalism, and republican liberalism. Moravcsik, 51 Intl Org at 515. 40 As Andrew Moravcsik puts it: “Societal ideas, interests, and institutions influence state behavior by shaping state preferences, that is, the fundamental social purposes underlying the strategic calculations of governments.” Moravcsik, 51 Intl Org at 513 (cited in note 39). 41 See id at 519–20. 42 In a recent article on the origins of the postwar European human rights regime, for example, Andrew Moravcsik uses the liberal approach—specifically a variant he terms “republican liberalism”—to explain the creation of the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222 (Nov 4, 1950, entered into force Sept 3, 1953. In Moravcsik’s republican liberal perspective, governments in power prefer to maintain maximum discretion, yet they also wish to reduce political uncertainty. Where political uncertainty is great, states may be willing to surrender discretion to human rights regimes, for example, in order to constrain the actions of future governments. International treaties like the ECHR, in other words, offer governments a means of “‘locking in’ particular preferred domestic policies.” Moravcsik, 54 Intl Org at 225–26 (cited in note 7)
Between Power and principle two approaches differ primarily in the assumptions made about the motivations of these actors and the source of their interests. Whereas liberal theory assumes that the relevant actors are motivated by objective self-interest, normative theory focuses attention on actors presumably motivated primarily by ideas--ideas that are constructed through interactions between and among states and nonstate actors. Norm-based theory also places greater emphasis than does liberal theory on horizontal connections across states and less emphasis on domestic regime type The two approaches also share similar weaknesses. Liberal theory, which focuses attention on substate dynamics, is better positioned than other interest-based theories to account for the existence of treaties that might detract from, rather than benefit, unified state interests in security, sovereignty, or wealth. Yet liberal theory, like norm-based theories, tends to be descriptive rather than predictive. Both the liberal and normative approaches can be used to construct a persuasive explanation of state action after the fact, but they have tended to be less useful for predicting state behavior in advance. And to the extent that they have yielded predictions, those predictions have generally been limited in scope See Andrew Moravcsik, Liberal International Relations Theory, in Colin Elman and Miriam Fendius Elman, eds, Progress in International Relations Theory 159, 161 ( MIT 2002)(The first assumption Jof liberal international relations theory is that the fundamental actors in international politics are rational individuals and private groups, who organize and exchange to promote their interest. ) Moravcsik, 51 Intl Org 513(cited in note 39)(arguing that in liberal international relations theory, social ideas and institutions act to shape state preferences). There has been an effort to reincorporate idea-driven and interest-driver accounts in political science. Notable among them is the edited volume, Judith Goldstein and Robert O. Keohane, Ideas Foreign Policv: Beliefs, Institutions, and Political Change (Cornell 1993 ). Yet even though they give much greater weight to the role of ideas in politics, they retain a central assumption that the relevant actors are motivated by self interest. They explain In general, we see ideas in politics as playing a role akin to that enunciated by may Weber early in this century: " Not ideas, but material and ideal interests, directly govern men's conduct. Yet very frequently the world images'that have been created by ideas have, like switchmen, determined the tracks along which action has been pushed by the dynamic of interest. " Judith Goldstein and Robert O. Keohane, Ideas and Foreign Policy: An Analytical Framework, in Goldstein and Keohane, Ideas Foreign Policy, 1, 11-12 (internal citations omitted As Martha Finnemore puts it, "Material facts do not speak for themselves, and attempts to make them do so have limited utility. Finnemore, National Interests in International Society at 6(cited in note 7). An example in the legal literature can be found in Peter H. Schuck, Citizens, Strangers, and In-Betweens 91-138 (Westview 1998)(exploring the role of ideas in producing the Immigration Act of 1990, Pub L No 101-649, 104 Stat 4978(1990), codified in relevant part throughout 8 USC) Liberal theory gives insight into why democracies might act differently from nondemocracies, and republican liberal theory gives insight into why less established democracies might act differently from more established democracies. But liberal theories as
Between Power and Principle 17 two approaches differ primarily in the assumptions made about the motivations of these actors and the source of their interests. Whereas liberal theory assumes that the relevant actors are motivated by objective self-interest,43 normative theory focuses attention on actors presumably motivated primarily by ideas—ideas that are constructed through interactions between and among states and nonstate actors.44 Norm-based theory also places greater emphasis than does liberal theory on horizontal connections across states and less emphasis on domestic regime type. The two approaches also share similar weaknesses. Liberal theory, which focuses attention on substate dynamics, is better positioned than other interest-based theories to account for the existence of treaties that might detract from, rather than benefit, unified state interests in security, sovereignty, or wealth. Yet liberal theory, like norm-based theories, tends to be descriptive rather than predictive. Both the liberal and normative approaches can be used to construct a persuasive explanation of state action after the fact, but they have tended to be less useful for predicting state behavior in advance. And to the extent that they have yielded predictions, those predictions have generally been limited in scope.45 43 See Andrew Moravcsik, Liberal International Relations Theory, in Colin Elman and Miriam Fendius Elman, eds, Progress in International Relations Theory 159, 161 (MIT 2002) (“The first assumption [of liberal international relations theory] is that the fundamental actors in international politics are rational individuals and private groups, who organize and exchange to promote their interest.”); Moravcsik, 51 Intl Org 513 (cited in note 39) (arguing that in liberal international relations theory, social ideas and institutions act to shape state preferences). There has been an effort to reincorporate idea-driven and interest-driven accounts in political science. Notable among them is the edited volume, Judith Goldstein and Robert O. Keohane, Ideas & Foreign Policy: Beliefs, Institutions, and Political Change (Cornell 1993). Yet even though they give much greater weight to the role of ideas in politics, they retain a central assumption that the relevant actors are motivated by selfinterest. They explain: In general, we see ideas in politics as playing a role akin to that enunciated by Max Weber early in this century: “Not ideas, but material and ideal interests, directly govern men’s conduct. Yet very frequently the ‘world images’ that have been created by ideas have, like switchmen, determined the tracks along which action has been pushed by the dynamic of interest.” Judith Goldstein and Robert O. Keohane, Ideas and Foreign Policy: An Analytical Framework, in Goldstein and Keohane, Ideas & Foreign Policy, 1, 11–12 (internal citations omitted). 44 As Martha Finnemore puts it, “Material facts do not speak for themselves, and attempts to make them do so have limited utility.” Finnemore, National Interests in International Society at 6 (cited in note 7). An example in the legal literature can be found in Peter H. Schuck, Citizens, Strangers, and In-Betweens 91–138 (Westview 1998) (exploring the role of ideas in producing the Immigration Act of 1990, Pub L No 101–649, 104 Stat 4978 (1990), codified in relevant part throughout 8 USC). 45 Liberal theory gives insight into why democracies might act differently from nondemocracies, and republican liberal theory gives insight into why less established democracies might act differently from more established democracies. But liberal theories as
Between Power and principle Despite these drawbacks, the overlap between these two perspectives offers a potential starting point for building a coherent integrated theory of state behavior under international law that draws on the insights and strengths of both approaches. This Article begins to do just this. I begin this project in the next Part by first seeking to understand the unique ways in which international treaty law functions. How is international treaty law different from domestic law and how do those differences affect its ability to shape state behavior? As will become clear, answering these questions gets at the crucial features of international treaty law-and is therefore the first step toward better understanding when and how treaties guide stat I l. The Nature of International law Is international law really"law?"political scientists and legal scholars outside the international law field regularly raise this question. In doing so, they often point to the fact that international law lacks one or more qualities that are usually believed to be essential components of what we call"law. ' Their challenge is therefore not simply semantic. It is instead meant to suggest that international law is really of little or no consequence because it has no power independent of the sanctions attached to it. In turn, international laws defenders generally respond that the suggestion that international law is meaningless flies in the face of daily experience, and that international law carries independent weight much in the same way that domestic law does Although the debate over whether international law is really "law"and the debate over how best to explain the relationship between international law and state behavi usually appear to be separate, the two are at bottom about much the same thing. In fact, the divide between normative and rationalist scholarship outlined in Part I can be seen, at root, as a disagreement over the nature of international law. Is international law more like a tax aw or a gunman's order to hand over one's wallet? In other words, does international law create a legitimate legal obligation such that states are compelled to abide by it even if they will not face a penalty for failing to do so or is it simply a command that will be followed only if backed by sanctions? *o The vast majority of norm-centered scholars would say the former. " The vast majority of interest-centered scholars would say the latter. #8 a whole do not help us explain variation within these categories. Why do some nondemocracies commit and comply with treaties and others do not? Why do some weaker democracies commit to and comply with treaties while others do not? Liberal theories do not, as of yet, provide any good answers to these questions. Moreover, the theories remain ill-equipped to explain state action regarding treaties that are poorly enforced; indeed, there is no point to committing to a treaty to bind one's successors if the treaty does not in fact bind them. To some degree, this debate conflates two separate issues. The first is whether hat we call international law is in fact law such that it generates a legitimate legal obligation on the part of those who are its subjects. The second is what leads states to abide or not by such obligations. The norm-based scholarship often appears to assume that if a legal bligation is legitimate(and is perceived as such), states will not only be obligated to comply but indeed will be likely to comply. Of course, this is not necessarily true. For discussions of
Between Power and Principle 18 Despite these drawbacks, the overlap between these two perspectives offers a potential starting point for building a coherent integrated theory of state behavior under international law that draws on the insights and strengths of both approaches. This Article begins to do just this. I begin this project in the next Part by first seeking to understand the unique ways in which international treaty law functions. How is international treaty law different from domestic law and how do those differences affect its ability to shape state behavior? As will become clear, answering these questions gets at the crucial features of international treaty law—and is therefore the first step toward better understanding when and how treaties guide states. II. The Nature of International Law Is international law really “law?” Political scientists and legal scholars outside the international law field regularly raise this question. In doing so, they often point to the fact that international law lacks one or more qualities that are usually believed to be essential components of what we call “law.” Their challenge is therefore not simply semantic. It is instead meant to suggest that international law is really of little or no consequence because it has no power independent of the sanctions attached to it. In turn, international law’s defenders generally respond that the suggestion that international law is meaningless flies in the face of daily experience, and that international law carries independent weight much in the same way that domestic law does. Although the debate over whether international law is really “law” and the debate over how best to explain the relationship between international law and state behavior usually appear to be separate, the two are at bottom about much the same thing. In fact, the divide between normative and rationalist scholarship outlined in Part I can be seen, at root, as a disagreement over the nature of international law. Is international law more like a tax law or a gunman’s order to hand over one’s wallet? In other words, does international law create a legitimate legal obligation such that states are compelled to abide by it even if they will not face a penalty for failing to do so or is it simply a command that will be followed only if backed by sanctions?46 The vast majority of norm-centered scholars would say the former.47 The vast majority of interest-centered scholars would say the latter.48 a whole do not help us explain variation within these categories. Why do some nondemocracies commit and comply with treaties and others do not? Why do some weaker democracies commit to and comply with treaties while others do not? Liberal theories do not, as of yet, provide any good answers to these questions. Moreover, the theories remain ill-equipped to explain state action regarding treaties that are poorly enforced; indeed, there is no point to committing to a treaty to bind one’s successors if the treaty does not in fact bind them. 46 To some degree, this debate conflates two separate issues. The first is whether what we call international law is in fact law such that it generates a legitimate legal obligation on the part of those who are its subjects. The second is what leads states to abide or not by such obligations. The norm-based scholarship often appears to assume that if a legal obligation is legitimate (and is perceived as such), states will not only be obligated to comply but indeed will be likely to comply. Of course, this is not necessarily true. For discussions of
Between Power and principle Both sides of this debate err, I believe, in taking an all-or-nothing approach International law is neither just like domestic law, nor is it inconsequential. Instead, it differs from domestic law in ways that affect--but do not eliminate--its ability to influence state behavior. Two central differences stand out: First, international treaty law is voluntar states are not bound by it unless they accede to it; and second, international law lacks a single then move to their implications for my theory of state behavior, *, characteristics in turn,and related issues, see, for example, Ronald Dworkin, Laws Empire 176-224(Harvard 1986) (arguing that a legislative principle of political integrity-which asks lawmakers "to try to make the total set of laws morally correct'is the primary principle in American political practice, from which adjudicative legitimacy flows); Jurgen Habermas, Communication and the Evolution of Society 178-79(Beacon 1979)(Thomas McCarthy, transl)([Legitimation conflicts flare up only over questions of princip ple... Such conflicts can lead to a temporary withdrawal of legitimation; and this can in certain circumstances have consequences that threaten the continued existence of a regime. ) Max Weber, Economy and Society:An Qutline of Interpretive Sociology 31(Bedminster 1968)(Guenther Roth and Claus Wittich, ds)(arguing that social order perceived to be legitimate is more stable than order based on expediency or habit See, for example, Thomas M. Franck, Legitimacy in the International System, 82 Am J Int L 705, 706(1988)(arguing that compliance with international obligations is secured at least in part by perception of a rule as legitimate by those to whom it is ddressed); Franck, Fairness in International Law at 8(cited in note 33)(arguing that a belief in the international laws legitimacy encourages compliance); Koh, 106 Yale L J at 2645-58(cited in note 32)(discussing voluntary obedience as a preferred enforcement mechanism in international law); Koh, 25 Houston L Rev at 644-55(cited in note 36) (arguing that internal acceptance of international rules is a four phase process whereby provoker"binds"a coerced party to obey as part of an internal value set); Koh, 74 Ind L J at 1414(cited in note 36)(same); Koh, 26 Yale J Intl L at 305(cited in note 13): Chayes and Chayes, The New Sovereignty(cited in note 33)(describing a cooperative, problem-solving, as opposed to a coercive, approach to nternational law); Schachter, 8 Va J Intl L at 307 (cited in note 12)(arguing that obligatory norms, established through the same, consistent five processes, are the basis of obligation in international law); Higgins, Problems and Process at 16(cited in note 12)(arguing that few international lawyers believe effective sanctions are necessary for international law to exist "or [believe] that sanctions predicate the existence of particular norms of international law ) Jenks, Law, Freedom and Welfare at 83-100(cited in note 12)(arguing that the basis of states'obligations in international law is the will of"the world community") blasi The Limits o International Law(2005); Downs, Rocke, and Barsoom, 50 Intl Org at 380(cited in note 24) (arguing that the depth of cooperation in international agreements is linked to the level of enforcement) The discussion that follows is influenced by, but distinct from, the classic discussion of the legal character of international law in H.L.A. Hart's chapter international law in The Concept of Law. Hart, The Concept of Law at 208-31 (cited in note
Between Power and Principle 19 Both sides of this debate err, I believe, in taking an all-or-nothing approach. International law is neither just like domestic law, nor is it inconsequential. Instead, it differs from domestic law in ways that affect—but do not eliminate—its ability to influence state behavior. Two central differences stand out: First, international treaty law is voluntary— states are not bound by it unless they accede to it; and second, international law lacks a single sovereign with the power to enforce the law. I consider these two characteristics in turn, and then move to their implications for my theory of state behavior.49 related issues, see, for example, Ronald Dworkin, Law’s Empire 176–224 (Harvard 1986) (arguing that a legislative principle of political integrity—which asks lawmakers “to try to make the total set of laws morally correct”—is the primary principle in American political practice, from which adjudicative legitimacy flows); Jurgen Habermas, Communication and the Evolution of Society 178–79 (Beacon 1979) (Thomas McCarthy, transl) (“[L]egitimation conflicts flare up only over questions of principle . . . Such conflicts can lead to a temporary withdrawal of legitimation; and this can in certain circumstances have consequences that threaten the continued existence of a regime.”); Max Weber, Economy and Society: An Outline of Interpretive Sociology 31 (Bedminster 1968) (Guenther Roth and Claus Wittich, eds) (arguing that social order perceived to be legitimate is more stable than order based on expediency or habit). 47See, for example, Thomas M. Franck, Legitimacy in the International System, 82 Am J Intl L 705, 706 (1988) (arguing that compliance with international obligations is “secured at least in part by perception of a rule as legitimate by those to whom it is addressed”); Franck, Fairness in International Law at 8 (cited in note 33) (arguing that a belief in the international law’s legitimacy encourages compliance); Koh, 106 Yale L J at 2645–58 (cited in note 32) (discussing voluntary obedience as a preferred enforcement mechanism in international law); Koh, 25 Houston L Rev at 644–55 (cited in note 36) (arguing that internal acceptance of international rules is a four phase process whereby a provoker “binds” a coerced party to obey as part of an internal value set); Koh, 74 Ind L J at 1414 (cited in note 36) (same); Koh, 26 Yale J Intl L at 305 (cited in note 13); Chayes and Chayes, The New Sovereignty (cited in note 33) (describing a cooperative, problem-solving, as opposed to a coercive, approach to international law); Schachter, 8 Va J Intl L at 307 (cited in note 12) (arguing that obligatory norms, established through the same, consistent five processes, are the basis of obligation in international law); Higgins, Problems and Process at 16 (cited in note 12) (arguing that few international lawyers believe effective sanctions are necessary for international law to exist “or [believe] that sanctions predicate the existence of particular norms of international law.”); Jenks, Law, Freedom and Welfare at 83–100 (cited in note 12) (arguing that the basis of states’ obligations in international law is the will of “the world community”). 48 See, for example, Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (2005); Downs, Rocke, and Barsoom, 50 Intl Org at 380 (cited in note 24) (arguing that the depth of cooperation in international agreements is linked to the level of enforcement). 49 The discussion that follows is influenced by, but distinct from, the classic discussion of the legal character of international law in H.L.A. Hart’s chapter on international law in The Concept of Law. Hart, The Concept of Law at 208–31 (cited in note
Between Pover and principle A. International Treaty Law Is voluntary A first defining characteristic of international treaty law is the voluntary nature of the legal obligation it imposes. Treaties operate directly on states, but if a state does not consent to an international treaty, it is clearly not bound by its provisions This aspect of international treaty law stands in stark contrast to domestic law. An individual person cannot decide whether, for example, the property, torts, and criminal laws of the state in which she resides apply to her. They apply to her whether she likes it or not. In fact, they apply to her even if she does not know that they exist. Of course, she can seek to change a law she views as wrong or illegitimate through the legislative process or she can move to a different jurisdiction and in this way "choose"the laws that apply to her, but as long as she remains in the jurisdiction she must continue to act in accordance with the 12)(exploring the "two principal sources of doubt concerning the legal character of international law?: first, the "adverse comparison of international law with municipal lay and, second, the"obscure belief that states are fundamentally incapable of being subjects o legal obligations. )Id at 210-11 See restatement(third) of Foreign Relations Law of the United States pt I, introductory note at 18(1987)("Modern international law is rooted in acceptance by states which constitute the system. ) Vienna Convention on the Law of Treaties, Art 19, 1155 UNTS 331, 341(1969)(May 23, 1969, entered into force Jan 27, 1980)(A treaty does not create either obligations or rights for a third State without its consent. ) Curtis A. Bradley and Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U Pa L Rev 399, 436-37(2000)(One of the most established principles in international law is that in reaty relations a state cannot be bound without its consent"), quoting Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. 78 UNTS 277 Dec 9, 1948, entered into force Jan 12, 1951); Louis Henkin, International Law: Politics and Values 28(Kluwer 1995)(For treaties, consent is essential. No treaty, old or new, whatever Its character or subject, is binding on a state unless it has consented to it. );E. Jane Ellis, International Law and Oily Waters: A Critical Analvsis, 6 Colo J Intl Envir L Pol 31, 3 (1995)(According to the prevailing view of international law, states cannot be bound to an international convention unless they agree to be so bound and have voluntarily ratified that convention. Of course, those who take the view that obligation under domestic law rests on a theory of constructive consent might see this contrast less sharply. Nonetheless, even in that view, international law differs in requiring express case-by-case consent for much of its provisions. At common law, "every one is conclusively presumed to know the law and hence gnorance of the law is generally not a viable defense State v Woods, 107 Vt 354, 179 A 1, 2 (1935)(holding that a w prosecuted for adultery could not assert the defense that she mistakenly believed she was legally divorced). See John Selden, Table Talk 30(Huntington Library ed 1689)( Ignorance of the Law excuses no man; not that all Men know the Law, but because‘tis se every man will plead, and no man can tell how to confute him. (emphasis removed)
Between Power and Principle 20 A. International Treaty Law Is Voluntary A first defining characteristic of international treaty law is the voluntary nature of the legal obligation it imposes. Treaties operate directly on states, but if a state does not consent to an international treaty, it is clearly not bound by its provisions.50 This aspect of international treaty law stands in stark contrast to domestic law.51 An individual person cannot decide whether, for example, the property, torts, and criminal laws of the state in which she resides apply to her. They apply to her whether she likes it or not. In fact, they apply to her even if she does not know that they exist.52 Of course, she can seek to change a law she views as wrong or illegitimate through the legislative process or she can move to a different jurisdiction and in this way “choose” the laws that apply to her, but as long as she remains in the jurisdiction she must continue to act in accordance with the 12) (exploring the “two principal sources of doubt concerning the legal character of international law”: first, the “adverse comparison of international law with municipal law” and, second, the “obscure belief that states are fundamentally incapable of being subjects of legal obligations.”) Id at 210–11. 50 See Restatement (Third) of Foreign Relations Law of the United States pt I, introductory note at 18 (1987) (“Modern international law is rooted in acceptance by states which constitute the system.”); Vienna Convention on the Law of Treaties, Art 19, 1155 UNTS 331, 341 (1969) (May 23, 1969, entered into force Jan 27, 1980) (“A treaty does not create either obligations or rights for a third State without its consent.”); Curtis A. Bradley and Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U Pa L Rev 399, 436–37 (2000) (“One of the most established principles in international law is that ‘in treaty relations a state cannot be bound without its consent’”), quoting Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (Dec 9, 1948, entered into force Jan 12, 1951); Louis Henkin, International Law: Politics and Values 28 (Kluwer 1995) (“For treaties, consent is essential. No treaty, old or new, whatever its character or subject, is binding on a state unless it has consented to it.”); E. Jane Ellis, International Law and Oily Waters: A Critical Analysis, 6 Colo J Intl Envir L & Pol 31, 38 (1995) (“According to the prevailing view of international law, states cannot be bound to an international convention unless they agree to be so bound and have voluntarily ratified that convention.”). 51 Of course, those who take the view that obligation under domestic law rests on a theory of constructive consent might see this contrast less sharply. Nonetheless, even in that view, international law differs in requiring express case-by-case consent for much of its provisions. 52 At common law, “every one is conclusively presumed to know the law” and hence ignorance of the law is generally not a viable defense. State v Woods, 107 Vt 354, 179 A 1, 2 (1935) (holding that a woman prosecuted for adultery could not assert the defense that she mistakenly believed she was legally divorced). See John Selden, Table Talk 30 (Huntington Library ed 1689) (“Ignorance of the Law excuses no man; not that all Men know the Law, but because ‘tis an excuse every man will plead, and no man can tell how to confute him.”) (emphasis removed)