Book Reviews Rubin, Alfred P., Ethics and Authority in International Law, Cambridge, New York: Cambridge University Press, 1997. Pp. xxvi, 214. Index. $59.95. Concerned that pointy-headed human rights scholars and activists are once again jeopardizing the practical integrity of the international legal regime, a new work by Alfred Rubin contends that law and morals - especially in the rough-and-tumble world of international law - are, and should continue to be understood as, separate entities. According to Rubin, once this historically recognized separation is understood, then the foolishness of the current belief that law and morals can be conjoined will be realized as well. Against the protests urging a greater propinquity between ethical and legal obligations, Rubin argues that any effort to gain universal jurisdiction over terrorists, war criminals and the like by way of an international criminal court is, as the dust jacket boldly predicts, 'doomed to fail'. Briefly put, this is the thesis that Ethics and Authority in International Law tenaciously defends and it is a diagnosis whose results Rubin embraces. To make this project work, Rubin attempts to tell a story of the historical trend supporting the distinction between law and morals. This story, Rubin informs, has its beginning over 3,000 years ago and continues through today. But this history, if it is to persuade us, must explain why this trend precludes the plausibility of change toward a more 'utopian' connection between law and morals, something apparently represented by the now near-certain establishment of an international criminal court. This task Rubin's book never successfully achieves. Ultimately, Rubin's policy prescriptions - that the international community should neither establish an international criminal court nor permit what Rubin calls 'universal jurisdiction over universal crimes' (uj/uc)- seem the product of an active historical imagination which is not quite in tune with recent developments. Rubin begins his book by tracing the philosophical arguments which claim to separate or join law and morals. Rubin describes this old debate as occurring between, on the one hand, those naturalists who see law's foundations in the moral realmand, on the other hand, the positivists, whose system emphasizes 'human discretion as the source of law' (at 15). According to Rubin, the positivist vision is 'preferred by the legislators of modern society' (at 15), while the naturalists of today are not much different from the devotees of Cicero whose process of right reason consists of generalizing 'subjective conclusions' and then 'assuming them to reflect universal experience' (at 11). Nonetheless, Rubin acknowledges that positivists themselves face problems relating their theory to reality (at 15, 21), so much so that, ultimately, he refrains from actually saying that the positivists have the conceptual edge in the rivalry. However, if the debate is, for now, insoluble in terms of philosophical distinctions between the law and morals, then something else is needed to vindicate Rubin's more general thesis. And here is where Rubin turns to history. The search for authority, Rubin informs, is the 'one thread that dominates this study' and, for Rubin, the authority of today's international law rests predominantly upon its past, a power drawn largely from slowly evolving customs. To understand how international law really works, we are told, we should examine the deeds of statesmen, not the detached musings of 18th-century theorists like Wolff and Vattel. Such inspection demonstrates 'that positivism, obsessed with authority and contemptuous of moral balancing, dominates the thinking of statesmen and has so dominated since the 17th century regardless of the naturalist models adopted by the publicists whose writings seem to have survived with greatest reputation' (at 19). As evidence for this thesis, Rubin cleverly points to the historical issue of problematic jurisdiction. In the absence of some global coordination strategy, what is outlawed is only a function of who decides what is outlawed. This is the perennial challenge to international law's efficacy. An illustration is apt: during the 17th-century Anglo-Dutch War, Scottish privateers who exceeded their English government licences were captured. Following their apprehension, a conflict emerged over whether the Dutch could try the Scottish privateers as pirates, or, whether they fell under English jurisdiction, as it was the English licences that were violated. The English certainly wanted to maintain their right to try Dutch privateers/pirates in the future, and yet they also wanted to adjudicate 'the interpretation of those English legal documents' (at 56). Situations of this sort represented the conceptual challenge to the naturalist position: Were the Scots merely acting beyond their licence, or, were they, as the Dutch thought, pirates? An answer to this query can be espied from how the relevant statesmen interacted with each other: they acknowledged 'the language of naturalism, but [they] actually advised each other and made practical decisions ... on the basis of [positivist] analyses of interest including the likely reactions of foreign statesmen' (at 83). The reason for this double-speak? Relying on a naturalist's theories of metaphysical categories meant that the source of law would be one completely outside the orbit of a statesman's powers (at 61-62). As a result, statesmen embraced positivism because positivism embraced and thus indirectly enlarged the powers of the statesmen. This leads to the rejection of uj/uc: if universal jurisdiction emerged, so that any state could apprehend the pirates and try them, rather than remit them back to the country of origin or proximity, then the statesmen, particularly of the larger empires, would have fewer opportunities to mould the rules of the international game in a way they thought would lend advantages to their team. During this period, it turns out, not only statesmen, but also courts (and some scholars) expressed their affinity for positivism, not to mention an aversion to uj/uc. Thus, Rubin concludes, when the problems of piracy and the international slave trade were on the agenda, the 'international legal order did not give authority to any one state or group of states to make law for any other or to enforce the universal conceptions of morality against' other domestic legal orders (at 19). Rubin's historical tale is familiar: statesmen really care about national advantage and personal advancement. So let us stipulate that the legal order of the 18th and 19th centuries would not brook universal jurisdiction over universal crimes, what then? The turn to history, Rubin likely assumes, is a good tactic because historical support for positivism will be seen, especially for the common law lawyer, with the same deference as precedent; he thinks his trump lies in the story of authority that history can tell. But as Rubin might concede, his persuasive historical analysis is of relevance only up to the point where he can show that past failures of efforts to assume universal jurisdiction over universal crimes will be a strong indicator that current or future efforts are similarly doomed to fail. Given the historical precedent, Rubin thinks the same arguments which won the day 180 years ago will win the game today as well. Consider for example a predictable critique of Rubin's thesis. Proponents of universal jurisdiction over universal crimes point to the fact that times have changed in a way that is sufficiently more conducive to universal jurisdiction over universal crimes. Rather than competing, they argue, nations today spend much more time, particularly in the post-Cold War era, cooperating - perhaps at unprecedented levels. Look at the European Union: where war ravaged the lands of Eurasia only 50 years ago, today stand multilingual agencies fostering the free movement of labour and capital within its borders. Today nations are prepared to delegate extraordinary degrees of power to civil servants whose operating procedures the nations may help formulate but whose conclusions they cannot guarantee. This example, however, has no purchase with Rubin. Instead, he makes the audacious claim that his book's thesis predicts the foot-dragging that accompanied the recent efforts at harmonization of monetary policy by some of the Member States (at 146). Of course, what his book does not predict is that so many other significant policies (including, importantly, treatment of human rights and many matters of foreign policy) have been coordinated in the EU in a way that runs counter to the nation-state ideology that crystallized at Westphalia. If the virtue of Rubin's monograph is that it would predict some delay in implementing the harmonization of monetary policy in Europe, then it seems that the thesis cannot see the forest for a fallen log. The weightier thesis about ethics and authority in international law would be one that could explain why indeed there has been so much integration after centuries of enmity, not why the path of integration has had some obstacles along the way. Equally troubling is the method by which Rubin's argument arrives at the rejection of his opponents' thesis - namely, that because times have changed, the international system may be more receptive to international criminal courts, universal jurisdiction over universal crimes, etc. Here Rubin makes two errors. First, he characterizes cooperation among nations as stemming from 'moral or "soft law" or "imperfect obligation"'. Since this impulse towards cooperation, Rubin continues, has been around since Pufendorf's time, it cannot have any persuasive force as an explanation. But this argument confuses the facts evidencing cooperation with the norms advocating cooperation. If significantly greater cooperation among states now occurs, then it is that fact that matters, not whether it arises from some centuries-old articulated impulse. This difference is important because states may not have been able to cooperate effectively or intensively in the past for a host of ideological or practical reasons. If, gradually, circumstance has permitted or encouraged some kinds of cooperation, then legal cooperation (in the form of universal jurisdiction over universal crimes) becomes far more feasible. The argument made by proponents of universal jurisdiction over universal crimes in this respect is not: 'States should now cooperate because we now realize that there's a moral obligation to do so.' Rather, it is more likely: 'States now do cooperate intensively and that makes the prospect of universal jurisdiction over universal crimes easier to implement than it would be in the absence of ongoing cooperation.' Even if the facts did not matter, Rubin also fails to recognize that even though the impulse to cooperate was part of 17th-century writings, it has considerably more force now. After all, the force of the moral argument advocating cooperation may have strengthened in its ability to persuade others. Nonetheless, Rubin's argument here is, 'it's very hard to see any significant advance in moral enlightenment since' the 17th century (at 154). One need not be Pollyannaish to respond that this simply cannot be the case, at least on the theoretical level. Otherwise, Rubin's position implies that efforts at cultivating environmental awareness, ending religious persecution, eradicating racism, improving the literacy of women - all explicit goals to which the United Nations and many modern states have committed themselves - are all either present in the writings of Vattel and Pufendorf or other early moderns, or are no sign of moral advance. This bears notice, not to denigrate Vattel and Pufendorf, but merely to show that Rubin's conflation of our moral imagination with that of early moderns is mistaken. Rubin fills considerable space illustrating the historical distinction between law and morals and then, from this historical narrative, he concludes his book with an imprecatory statement against the current push for universal jurisdiction over universal crimes and war crimes tribunals covering what happened in Rwanda and Yugoslavia. Given that the International Criminal Tribunal for the former Yugoslavia recently convicted several Bosnian Muslims and Serbs, Rubin's descriptive thesis has the unhappy fate of being refuted, at least in part, by the facts of the front pages. Let us assume, for the moment, that these apparent successes are not durable. Are they even legal? Rubin argues that the Geneva Conventions on genocide pre-empt any of these international tribunals if the parties involved do not accept them. These conventions call for genocidal actors to be tried by one of the parties involved in the conflict (at 167). Not only do these international tribunals have dodgy legal foundations, according to Rubin, but precisely because of their potentially weak status, they will also face many evidentiary problems - compelling witnesses and discovery, for example - when trying alleged war criminals. And Rubin also correctly points to occasional credibility problems, as evidenced by the USSR's presence at the prosecutor's table at Nuremberg. These are all serious contentions. But surely the legal regime he advocates is seriously inadequate when the victims have no effective ability to bring their tormentors to justice and the state from which the tormentors come has no interest in trying them either. And while Rubin performs a valuable service in reminding the reader of the evidentiary problems of these non-voluntary tribunals, the issue is whether those obstacles are insurmountable, especially if the UN Security Council were to utilize its resources and influence to ensure a fair trial that allowed the defendants to face their accusers and inspect the evidence against them. Furthermore, the practical problems Rubin alludes to would also appear in similar form even if one party but not the other accepted the tribunals, as the Conventions dictate. Rubin is right to question whether the tribunals, as currently instituted, can be authorized on the weight of the Geneva Conventions. But there is another viable source of law for the matter and it is a bit of a stretch to say that the Conventions preclude drawing upon that source. To wit: it is Rubin's contention that the Tribunal established for war crimes in the former Yugoslavia by the United Nations Security Council is illegitimate because tribunals are not pursuant to the Security Council responsibility of maintaining peace and security (at 157). Presumably, Rubin views these tribunals as outside the positive mandate of the Security Council and therefore illegal. But why should this be the case? Surely one can interpret the mandate of the maintenance of peace and security to include a tribunal whose responsibility is to punish those who have committed acts of genocide. It is not a mistake to state that genocide runs counter to the maintenance of peace and security. After all, a tribunal will likely achieve the specific deterrence of preventing those convicted war criminals from committing future violations of peace and security. Furthermore, others may be generally deterred from genocidal actions in the future. Finally, as Rubin concedes, genocide typically spurs waves of refugee problems. These refugee problems inevitably spill over into neighbouring countries and, consequently, regional or global resolutions of the underlying cause may be called for. Hence, even on the positivist grounds upon which Rubin stands, these tribunals should not pose much cause for anxiety. For even if one agrees with Rubin's somewhat implausible analysis that the past is directing the future, it seems that one need not even leave the premises of Rubin's positivism to be able to defend the development of these war crimes tribunals. This is why Rubin's diagnostic argument, that the impulse toward establishing an international criminal court stems from a misguided conflation of law and morals, seems so curious. Finally, it seems that Rubin ignores the differences between, on the one hand, an ad hoc and ex post prosecution and, on the other hand, a standing criminal court with a code established by agreement and prior international law. It is the latter which may remedy some of the concerns that Rubin raises. But Rubin is distressed by these developments as a sign of all other potential breaches of the principle of non-intervention (at 184). He does not 'trust anybody from outside the circle of those involved who assert such certainty to make these decisions for me or my family or my country'. As a result, intervening, even to avert genocide, Rubin concludes, is a misguided impulse that invites chaos. Perhaps already hearing the words of Burke admonishing him, Rubin concludes that the humanitarian thing to do is not intervene, but rather to open the gates to the refugees who flee the genocide. A decent sentiment. But given the instruments of terror available today, one should not be surprised if by the time one has found the key to these gates, the need for it will already have passed. In his preface, Alfred Rubin notes that, initially, many publishers rejected his project, as both a long essay and a short book. In the end, and only after a process of revising that Rubin details at great length in the preface, did he find publication with a Cambridge University Press series. A good thing too, for Rubin's provocative book is testimony to why policy-makers should be aware of history, if only so that they can ultimately then forget it when the time is right. Dan Markel Harvard Law School
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