Do International Norms Influence State Behavior?
Sloss, David, The George Washington International Law Review
DO INTERNATIONAL NORMS INFLUENCE STATE BEHAVIOR? The Limits of International Law. Jack L. Goldsmith & Eric A. Posner, New York: Oxford University Press, 2005. Pp. 262, $ 29.95 (hardcover)
For the past few decades, lawyers and social scientists have been trying to explain why states do or do not comply with international law. Broadly speaking, prevailing theories on the issue of compliance can be divided into three groups. One group of theorists focuses on state interests as the key determinant of state behavior in the international system. Within this group, neorealists assume that states are primarily interested in maximizing power1 whereas neoliberals take a broader view of state interests, viewing both wealth and power as important state interests.2 Both groups, however, take state interests as a given, and seek to explain state behavior in the international system in terms of state interests.
The other two groups of theorists, by contrast, believe that state interests themselves require explanation. Instead of taking state interests as a given, these theorists examine the forces that shape states' preferences. One group of theorists focuses on domestic political forces that shape states' foreign policy decisions.3 Another group focuses on the ways in which international norms and institutions influence state interests and state behavior.4 Though a variety of labels attach to different schools of thought, this Review will refer to the three types of theories as "state interest" theories, "domestic politics" theories, and "international norms" theories.5
International legal scholars who have attempted to explain why states comply with international law typically endorse some variant of international norms theory.6 By contrast, Professors Goldsmith and Posner's recent book, The Limits of International Law (Limits), falls squarely within the long tradition of state interest theories.7 Limits contends that states comply with international law when it is in their interest to do so, and that "international law emerges from states acting rationally to maximize their interests."8 Limits combines some new material with revised versions of several previously published articles.9 By integrating these materials in a single volume, Limits constitutes Goldsmith and Posner's first attempt to articulate a comprehensive theory of international law.
Limits contends that most state behavior associated with international law can be explained in terms of four basic models, which are labeled "coercion," "cooperation," "coordination" and "coincidence of interest."10 The simplicity of this theory is one of the book's greatest strengths. Limits uses these four models to explain an extraordinarily wide range of state behavior, including the creadon, modification, and subsequent compliance with both treaty law and customary international law.
The simplicity of the theory presented in Limits, however, is also the book's greatest weakness. Limits assumes that "state interests at any particular time [are] an unexplained given."11 By adopting this simplifying assumption, Limits largely ignores the insights developed by domestic politics theorists. Whereas the authors are merely indifferent to domestic politics theories, they are openly hostile to international norms theories. Indeed, one of the authors' main goals is to persuade readers that international norms do not influence state behavior. They fail to accomplish that goal.
This Review presents a critical assessment of the theory presented in Limits. Part I provides a brief summary of Goldsmith and Posner's theory. Part II tests the theory by analyzing the evolution of international law and state practice, especially U.S. practice, related to the juvenile death penalty. Part III tests the theory by analyzing the evolution of China's policy and practice related to nuclear proliferation. The analysis in Parts II and III demonstrates that the United States and China have both altered their policies and practices to conform to international norms. …