International Law and International Relations: The Gap Between Hopes and Realities

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    • 00:12

      KAREN ALTER: Hello, I'm Karen Alter.I'm a professor of political science and lawat Northwestern University, and I teach courseson international relations, international law,international organizations, and ethicsin international affairs at the graduateand at the undergraduate level.And I research the influence of international courtson international politics and on domestic policy.

    • 00:32

      KAREN ALTER [continued]: Today, I want to speak to you about the gap between hopesand realities for international lawand international relations.Most stories about international laware focused on putative violationsof international law, and this focus creates a perceptionthat international law is violated more often than it'sactually followed.Yet most lawyers and diplomats know

    • 00:53

      KAREN ALTER [continued]: that this impression is false.Most lawyers and diplomats and international relationsscholars know that Louis Henkin is right when he famouslywrote "Almost all nations observealmost all principles of international law,and almost all of the time."And in fact, no scholar would disagree with this statement.There are thousands of treaties that

    • 01:13

      KAREN ALTER [continued]: define thousands of aspects of international law,and these treaties have been embedded into domestic lawso that we might think we're followingdomestic practices, when we're also or actually followinginternational law.We may not even be aware that we'refollowing international law.Yet you may think that Henkin is too optimistic, because wesee on the front pages violations of human rights,

    • 01:35

      KAREN ALTER [continued]: refugees who are not given refuge,and war crimes that persist.And so it's understandable that we get pessimisticabout the influence of international law.There is a gap, and I want to arguethat this gap between our hopes and realitiesis, for many reasons, some of it which is real,and a lot of it which is misperception.International law is actually more influential

    • 01:57

      KAREN ALTER [continued]: than it's usually given credit for,so we have a misperception, and we have a gap.So I'm going to discuss today why Henkin is correct,yet there is an important gap between our hopesfor international law and the reality.And I want to try to understand the misperceptions thatlead to us becoming disappointed in international law,because my goal is to aspire towards a nonutopian

    • 02:18

      KAREN ALTER [continued]: understanding and a set of objectivesfor international law.So the first question is, how can Louis Henkinbe right if we hear so often about international violations.And there is both a perception problemand a very real problem.

    • 02:40

      KAREN ALTER [continued]: I'm going to argue the perception problem persistsbecause our expectations for law tend to be false,because we tend to focus more on failure than we focuson success.And because we listen to the naysayers,people who have a big stake in making youthink that international law is violated,and therefore they should not be held accountable to the law.So first, I want to explain why Henkin

    • 03:01

      KAREN ALTER [continued]: and the many international law experts who repeat his mantraare right.International lawyers are correctthat following international law hasbecome normal practice, so much so that we take it for granted.At this point, most international laweither codifies existing practiceor has become taken for granted, whichis why almost nations follow almostall principles of international law and almost all of the time.

    • 03:24

      KAREN ALTER [continued]: New diplomats and new state leadersare going to ask how are things done, and the first answerthey're going to be given by their diplomatic corps,or if they go to consult what they shoulddo in a new situation, would be to lookto international law and international legal practice.And wherever the law makes sense,and wherever it's what most leaders and diplomats doand see as normal, then why wouldn't you

    • 03:45

      KAREN ALTER [continued]: follow international law?And this is how international law works.Even leaders who want to buck trendsare going to pick their battles.They're not going to fight all international law.They are still going to follow almost all principlesof international law and pick where they want to disagree.So even iconoclasts are going to act as Louis Henkin told us.

    • 04:06

      KAREN ALTER [continued]: Yet the perception that many important violationsof international law, that's also true,and here there's kind of an irony.Because international law is followed as a matter of course,because it's such an effective tool,then we want to create more international law.Then for every goal that we aspire to,we want to create international law to achieve this goal.

    • 04:30

      KAREN ALTER [continued]: So the more international law we create, the more we expand,the more we use international lawto define a range of collective goals, the more hope and faiththat activists and people put in international law,the more often it's going to fall, which is an irony.And our goals for international law have expanded.Human rights law is about how governments

    • 04:50

      KAREN ALTER [continued]: should treat their citizens.That is quite an expectation for international lawthat we didn't have in the past.International law tells us what types of weaponscan be used, how weapons can be used,how we have to treat prisoners of war, whatconstitutes a crime in war.And the more we expand international lawin these realms, the more likely it

    • 05:10

      KAREN ALTER [continued]: is to fall short in reality, especiallyin terrible situations like war.Now, some might say that we shouldn'ttry to aspire for international law higher.We shouldn't reach high, because otherwise we'regoing to then expose this gap, but I disagree.I think that we should reach high, because otherwise thereare no rules for the road, there areno expectations for legitimate governments,

    • 05:33

      KAREN ALTER [continued]: and no basis for the United Nations of the Worldto criticize bad behavior unless we havea set of international legal principlesagreed to by states, ratified in treaties,that define the behavior that we would like to see.So those who would say we shouldn't write downinternational law if it's not going to be followedwould be saying we should not use international law

    • 05:55

      KAREN ALTER [continued]: to promote respect for human rights,to be able to prosecute war criminals and mass atrocities,or to try to clean up the environment.And you should stop and think for a second, whowould like this idea, no human rights law, no war crimes law?Well, those who want to be able to violatehuman rights from time to time, those who want to commit warcrimes from time to time, those who want to keep polluting,

    • 06:16

      KAREN ALTER [continued]: and those who don't want their behavior to everbe criticized by others.Those are not necessarily the peoplethat I want to be defining our aspirations and goalsfor international law.But it's also true that law is always partly aspirational,and here's one of the misperceptions.The United States has laws that make discriminationon the basis of race, gender, religion,

    • 06:38

      KAREN ALTER [continued]: and sexual orientation illegal.We have these laws, but as we all know,there is discrimination on the basis of race, gender,religion, and sexual orientation.So it's naive to think that just because you create a law,that that would end discrimination.Nor do we say that since there is still discrimination,we should not bother to have anti-discrimination laws,

    • 06:59

      KAREN ALTER [continued]: nor do we say because there is discrimination,our entire legal system in our court system does not work.Instead, we see barring discriminationas part of the solution.So I want to give you three answers to why there isthis hope versus reality gap.

    • 07:20

      KAREN ALTER [continued]: First is that our expectations of law in generaltend to be false, Second is that humans tend to focus on failuremore than they focus on success.And third is that we listen to the naysayerswithout reflecting on who or why people are working stronglyagainst international law.So first, the gap between expectations and realityis based on false expectations.

    • 07:42

      KAREN ALTER [continued]: There are two cartoon versions of the law that we carry aroundin our heads.The first cartoon is this idea that the government legislatesand everyone then follows, and seldom, perhaps never,is this how the world really works.The second cartoon is what I call a law and orderunderstanding of the law.And if you think about the TV show "Law & Order,"a crime occurs, the perpetrator is caught,

    • 08:03

      KAREN ALTER [continued]: the violator is convicted, and that allhappens within an hour.From violation to reconciliation in an hour.So these misperceptions then led us to be disappointedabout international law.Neither cartoon version is how the law ever works,so let me take a non-aspirational example--the law against murder.Murder is a premeditated, intentional killing

    • 08:25

      KAREN ALTER [continued]: of another person.Now, first the lawyer will tell youthat not all intentional killing is actually illegal.In the context of war, you can kill another personintentionally, and that can be legal.And also, in this country, we have the death penalty,where we intentionally kill another person.So these exceptions mean that there can be murderand the law may not be failing.Now, international law fits the situation of the law on murder

    • 08:48

      KAREN ALTER [continued]: and then not all decisions to use force to start a warwill be considered illegal.And bad things can happen in international relations,and these bad things might not actuallyconstitute a violation of international law.So it's not true whenever a bad thinghappens that international law was violated.But of course there are clear cases of murder,

    • 09:08

      KAREN ALTER [continued]: and we criminalize murder, and yet murder continues.So there are murders, but we don't concludethat the law against murder is pointless,we don't conclude that our legal system is a complete failure,and we don't conclude that the law has no power.So cartoon one clearly does not work.Just because we create a law, thatdoes not mean that bad behavior prohibited by the law ceases.

    • 09:31

      KAREN ALTER [continued]: Now, you may think that then real differencebetween international and domestic enforcementis that in our imagined world of domestic law,all illegal murders are prosecuted,and all illegal murderers are put in jail.So this is the cartoon number two, the law and order idea.But in our actual world, this is not how it works.We have stories of a Japanese exchange student getting shot

    • 09:54

      KAREN ALTER [continued]: by going to the wrong house for a Halloween party.We have police officers who use excessive force and kill peoplewithout facing murder charges.We have black Americans that are killedat a much higher rate than white people,and many of these deaths are never prosecuted.So in our very well-functioning rule of law system, aboutas best as you can hope for, we have

    • 10:15

      KAREN ALTER [continued]: people who get away with murder, because the reality isyou can't legislate yourself out of all problems in the world,and nor can you enforce yourself outof all problems in the world.We can't eliminate all bad in the world just by writing laws.So to understand how the law actually works,you have to think about the counterfactual.

    • 10:36

      KAREN ALTER [continued]: What would have happened if you didn't have this law?Would there have been even more murderif murder was not a crime?And would the responses to the crime of murderhave been different if we didn't have a law on the booksthat we call the law against murder?You can only really see law's effectsby imagining the world without a law,

    • 10:57

      KAREN ALTER [continued]: by doing this exercise of imagining the counterfactual.And I want to use a real-world example of international lawat work so you can start to see this gap between realityand our hopes for international law and why it exists.The treaty I want to talk about is the Conventionon International Trade in Endangered Species in Wild

    • 11:18

      KAREN ALTER [continued]: Fauna and Flora.This is a treaty that regulates international tradebetween countries for endangered species,and when the member states come together and list an animal asendangered, then it becomes illegal to tradeproducts related to this animal between onecountry and another.So an example of an animal that has been recognized

    • 11:38

      KAREN ALTER [continued]: as endangered by the CITES conventionwould be the elephants, which meansthat you can't trade ivory legallyexcept for under certain specific circumstances.So this CITES convention is a treatythat governments created and regulated because they thoughtthat trade was contributing to damage and to extinction

    • 11:59

      KAREN ALTER [continued]: of certain animals, but the treaty only regulates trade.It does nothing to address other problems that might leadto animals becoming endangered.Now, it's not crazy to look at the CITES conventionand look at the problems that we have with elephantsin the world, the fact that they're still endangered,and think that the CITES convention might actuallybe failing.

    • 12:20

      KAREN ALTER [continued]: But if it's failing, or if elephantsare endangered because of habitat depletion,because of no food and water due to drought,the CITES convention does nothingto address these problems.And we have to then think about whatwould the world look like if we didn't have the CITESconvention.Well, we know that world, because we had itbefore we had the CITES convention, which

    • 12:41

      KAREN ALTER [continued]: was that any country was allowed to trade and importand export as much ivory as they wanted to.So if we didn't have this international convention thatbanned the ivory trade, then we would stillbe using ivory or trading in ivory,or at least some countries would be using ivoryfor the many ways in which they used to use it-- the pianokeys, to make dice, to make stamps,

    • 13:01

      KAREN ALTER [continued]: to make chessboard parts.And while some countries banned these products, banned ivory,the international convention of CITESspread this ban to every signatory state, whichis almost every state in the world,and has actually changed the practices of ivory.But yet we still have this problemof elephants being killed today, and that's

    • 13:23

      KAREN ALTER [continued]: because the problem today is not that governmentsare killing their elephants.Elephants today are threatened by poaching in conflict zones,and this is militarized poaching by highly weaponized and highlysupplied militias who have helicopters and canfly around and kill elephants, and then use the ivory to buyweapons and to fund their wars.These are not the governments, these are militias.

    • 13:45

      KAREN ALTER [continued]: And it's also spread because as China has spread its influencein the world, there are Chinese traders whowill trade in ivory, even though it's illegal,and the government tries to stop this.So you can understand that peoplecan look at the fate of elephantsand the terrible poaching that's going onand think about CITES having failed.But if you consider the counterfactual, that otherwise

    • 14:06

      KAREN ALTER [continued]: it would not be illegal to trade in ivory, that's where youcan see the effect of CITES.Now, we might wish that CITES could do more.We might wish that we could take out a pen and write a law,and then there'd never be a problem for elephants.Unfortunately, that's not how the world works,domestically or internationally.So we have this misperception, we expect too much of the law.

    • 14:29

      KAREN ALTER [continued]: But then we add to it the second point,that we tend to focus on failure more than we focus on success.And psychologists have actually studied this,and they've studied a number of information biasesthat people have.People that tend to be overly optimistic, especiallywith respect to pleasing outcomes.So we're overly optimistic about what any law can accomplish.And then we're overly pessimistic when

    • 14:51

      KAREN ALTER [continued]: our optimistic hopes are not achieved.And we are overconfident with respect to ourselves,and underconfident with respect to others.We also have-- and this is the key one-- this negativity bias.Our brain actually appears to be more sensitive to negative newsthan we are to positive news.I, myself, suffer from the opposite of negativity bias.

    • 15:12

      KAREN ALTER [continued]: This is what I tell my students.If I'm optimistic about international law,it's only because my expectations for internationalare so incredibly low, and that'sbecause I'm an international relations scholar.We have all of these theories of international law,of international relations, that leadus to expect that international law should never work.And so then I get optimistic about international law,

    • 15:34

      KAREN ALTER [continued]: because I look at something like the Law of the Seas, whichI think is absolutely amazing.The Law of the Seas is this multilaterally negotiatedtreaty.It was the biggest international negotiations up until the time,and we created these rules of the road thatregulate the entire oceans, which is 71% of the Earth.And we created rules for the deep sea,

    • 15:55

      KAREN ALTER [continued]: which is territory that doesn't belong to any one state.And we have extensive rules about the ocean,about the high seas, that are not into the control of states,and these rules have averted a lot of conflict in the world.Actually, if you stop to think about it,it's amazing how rare it is to fight a war over something thathappens in the high seas, and that'sbecause we have clear rules to regulate it.

    • 16:17

      KAREN ALTER [continued]: We have a mechanism to deal with overfishing.It doesn't work as well as I wish it did,but at least we have a mechanism to deal with it.We have a Law of the Sea Tribunalthat can deal with disputes about illegal fishing.And we have a process that we canuse to help mitigate environmental accidents thatoccur in the high seas.So I'm not Pollyannish about this.Of course the Law of the Sea has its limits.

    • 16:38

      KAREN ALTER [continued]: And we can see the limits with the Somali pirates,with territorial disputes in the South China Seas,with Russia that's violating many international law,including seizing a boat by Greenpeace,and seizing all of the people on the boatand refusing to turn them over.So as with any law, it doesn't work 100% of the time.But given that I expect so little

    • 16:59

      KAREN ALTER [continued]: of international relations, I get very impressedwhen we see something like the Law of the Seasand how few conflicts we have at the seas.So the negativity bias leads us to focuson failures, when I think we should also focus on success.So the third reason why we have this gap between expectationsand reality is that we listen to the naysayers,

    • 17:21

      KAREN ALTER [continued]: and I think this is a really important point.Who are the naysayers?Those are the people who are accusedof violating international law, and when they're accused,the first thing they do is point the finger of others.So look for this deflection.Someone says you're not allowed to do thisunder an international law, and they'll say,but someone else did this over there.Look at what Russia did.Look at all these other bad actors who

    • 17:41

      KAREN ALTER [continued]: were doing other things, as if to say pay no attention to me,and two wrongs make a right.Just because Russia behaved badly,that doesn't mean that the United States can behave badly.The other people who will malign international laware those who lose in court.They will say that the entire process is biased,and that happens domestically, and thathappens internationally.

    • 18:01

      KAREN ALTER [continued]: And then those who would prefer notto have to follow the law, those who just don't want anyoneto criticize what they do.And governments who are used to beingbeyond the law, especially authoritarian leaders,might have very thin skin about being criticized by outsiders.So those would be the naysayers, and theywill shout often and loud about howinternational law is violated and shouldn't

    • 18:23

      KAREN ALTER [continued]: have to bind them.So here's the second irony.The first irony was that, because international lawis successful, we create more, we move the goal post,we reach very high, and in doing so, we create more failure.And the second irony is that the more effectiveinternational law is, the more likely it is to be criticized.So this growing effectiveness of international law,

    • 18:43

      KAREN ALTER [continued]: the fact that governments are feeling criticized,is why they in turn criticize international law more.If international law didn't matter, it would be ignored,and they wouldn't even bother to complain about it.And if the international law didn'thave a groundswell of support behind it, it would be changed.So indicted war criminals will complain, losers in court

    • 19:06

      KAREN ALTER [continued]: will complain, but that doesn't mean, we should listen to them.So why the gap?Because our expectations are false,because we tend to focus more on failure than on success,because we listen to the naysayers, and because,frankly, we wish that international lawcould do more.We see war crimes and we want them stopped.And the sad truth is that law always struggles against power.

    • 19:28

      KAREN ALTER [continued]: The most powerful people always seemto be able to get away with murder,and governments are very, very powerful.And especially in a context like war,you can't redress every wrong that is done.International law is not a miracle worker.It is flawed.It may even be more flawed than domestic law,but domestic law is pretty darn flawed, too.

    • 19:55

      KAREN ALTER [continued]: So there is this gap between our aspirationsfor international law and reality.The question is what should we do about it,and here is my prescription.Well, first, of course we should workto make the reality approximate our goals,so we should be aspiring and actually workingto improve the situation.Where the law bans discrimination,we should try to end discrimination.

    • 20:15

      KAREN ALTER [continued]: Where the law bans murder, we should try to decrease murder.Where the law bans human rights violations,we should try to stop human rights violations.But we also need to build a nonutopianunderstanding of the law.So international law critics are holding international lawto a standard that no international legal systemmeans.And I find this somewhat ironic, because international relations

    • 20:37

      KAREN ALTER [continued]: scholars actually have such low expectations for the law,and yet these very same scholars hold international lawto a standard that they don't hold domestic law to.So how do we get to a nonutopian view of international law?We recognize the truth, that almost all nations observealmost all principles of international law,and almost all of the time.

    • 20:59

      KAREN ALTER [continued]: We give credit where credit is due.We recognize the many ways in which international lawis defining the rules of the road and making a difference.And we recognize how far we have come,and how much of a resource international lawhas been in coming this far.In having conventions that regulate the oceansthat are mostly followed, in having conventions that

    • 21:20

      KAREN ALTER [continued]: try to address endangered species,in having conventions that regulate global trade.We have come unbelievably far comparedto where we were at the end of World War II,and to where we ever imagined that we might be.Third, we need to think realisticallyabout how legal systems work.It's probably not realistic to expect international law

    • 21:40

      KAREN ALTER [continued]: to work even as well as the United States legal systemworks, but it's certainly not realistic to expectinternational law to work better than a rule of law systemas we find in the United States or in Europe to work.And there are some direct comparisons.So in the domestic realm, we findthat police seem to be able to harm citizens with impunity,

    • 22:01

      KAREN ALTER [continued]: we find that the most powerful individuals and groups areheld to different standards, and wefind that people question the quality and the impartialityof legal rulings, and we find the same thingsin the international realm.We find that militaries often operate with impunity,we find that the most powerful governments arethe least likely to be held accountable,and we find that those who do face accusations about law

    • 22:24

      KAREN ALTER [continued]: violations, they're most likely to questionthe impartiality of the law.So there are direct analogies from the domesticto the international.But I want to end by saying we doneed to be realistic about what law, international or domestic,can accomplish.We also need to realize that not all international law is good.So I teach courses on ethics in international affairs,and a point that I emphasize very often

    • 22:46

      KAREN ALTER [continued]: is that just because there is this law, whichis what governments could agree to,that doesn't mean that the law is necessarily ethical.We always have to have a separate set of requirementsfor ethics, and the requirement can't just be "follow the law."That's too low of a bar, because law is are createdthrough a political process.So as I make this tutorial, I'm very

    • 23:07

      KAREN ALTER [continued]: aware of international law's failings.I'm, myself, very upset that Syriahas committed mass atrocities against its people,the governments use chemical weapons.The Islamic State has committed unbelievable atrocities--slavery, beheadings, genocidal acts.Turkey, Saudi Arabia, the United States, Russia, Iran,they're all in Syria.So Syria is very much a lawless zone,

    • 23:30

      KAREN ALTER [continued]: and I think it's unrealistic-- I'm an international relationsscholar first, and an international law expert-- Ithink it's unrealistic to expect international law to beable to solve a major problem, just like I thinkit's unrealistic for law on its ownto be able to solve any major political problem.Law is not a miracle worker.International law is also not a miracle worker.

    • 23:58

      KAREN ALTER [continued]: What is international law, then?It's the tool that states use to live togetherand to achieve their common goals, whichis why Henkin is right.Almost all nations observe almost all principlesof international law almost all of the time.And it is where we put our aspirations.It's a work in progress-- we're all works in progress,I'm a work in progress.

    • 24:18

      KAREN ALTER [continued]: Much of the gap between our hopesand reality for international laware based on false understandings about what lawcan accomplish, in which case the remedy isto create nonutopian expectationsfor international law.International law is an important toolin international politics, and I want to end with another quoteby Louis Henkin.Henkin also wrote, "The effective legal system,

    • 24:40

      KAREN ALTER [continued]: it should be clear, is not the one which punishes the mostviolators, but rather that which has few violationsto punish because the law deters potential violators.He who does violate is punished, principally,to reaffirm the standard of behavior and to deter others.""In international society, too, lawis not effective against the Hitlers

    • 25:00

      KAREN ALTER [continued]: and it's not needed for the nation, whichis content with its law and has few temptations.International law aims at nationswhich are in principle law-abiding,but which might be tempted to commit a violation if therewere not a threat of an undesirable consequence."This may sound like we're ceding too much if we say thatinternational law cannot work against Hitlers of the world.

    • 25:21

      KAREN ALTER [continued]: I actually don't think it can workagainst Hitlers of the world.I don't think that law can work against but serial killersof the world.They will still commit their serial killings,and even though there is this law, and even though theymay be caught, we don't write law primarilywith the sociopaths in mind.We write law to define our collective standards

    • 25:42

      KAREN ALTER [continued]: of behavior.So thank goodness the Hitlers of the worldare few and far between.International law is a guide for the rest of us,and who are the rest of us?Well, there's 190 nations in this world,and if you think about who are the bad states,let me be generous and say there are 20 bad states thatare committing all kinds of violations, whichmeans the other 170 nations that are not fighting

    • 26:03

      KAREN ALTER [continued]: civil wars, that are trying to contributein a constructive way to the world, that'swho international law is written for.It's also written for the people thatare fighting to improve human rights,and for the people who do want to protect elephantsand in whatever way we can.International law is the constructive toolwe use to make the international world a better place.

    • 26:24

      KAREN ALTER [continued]: So if you want to learn more about a nonutopianunderstanding for international law,you should read the works of authorswho understand in very clearheaded wayswhat international law is trying to do and what it can do.I would recommend these three books.First, I'd recommend my own book,The New Terrain of International Law:Courts, Politics, and Rights.I'd recommend Louis Henkin's book, How Nations Behave,

    • 26:46

      KAREN ALTER [continued]: a classic.And I'd recommend Mary Ellen O'Connell's book,The Power and Purpose of International Law.She engages debates between the skeptics of international lawand the advocates of international law,trying to find this nonutopian understanding of whenand how international law can work to shapeinternational relations.

International Law and International Relations: The Gap Between Hopes and Realities

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Abstract

Professor Karen J. Alter tackles the subject of international law and its effectiveness. She analyzes public expectations about international law, and outlines why we should be realistic and optimistic about what is written in the law books.

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International Law and International Relations: The Gap Between Hopes and Realities

Professor Karen J. Alter tackles the subject of international law and its effectiveness. She analyzes public expectations about international law, and outlines why we should be realistic and optimistic about what is written in the law books.

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