THE EFFECTIVENESS OF CUSTOMARY INTERNATIONAL LAW: STEPHEN LUSHINGTON AND THE TRENT AFFAIR.

• Author: Casto, William R.

Contents Introduction 3 I. Compliance and Effectiveness 7 II. The Trent Affair 10 A. The James Adger 13 B. Negotiating International Law 25 III. Conclusion 27 INTRODUCTION

This essay is an empirical study of the actual influence or effectiveness of customary international law in foreign-affairs crises. In 1968, Professor Louis Henkin asserted "it is probably the case that almost all nations observe almost all principles of international law and almost all their obligations almost all the time." (1) Since that time, a number of capable theorists have explored his assertion. (2) Some have advanced a theory of constructivism in which foreign-policy actors internalize a conviction that international law principles are legitimate and should be followed. (3) Others endorse a rational-choice approach, which emphasizes a state's perceived self-interest. (4) The present essay examines the role that these two theories played in a specific foreign-affairs crisis.

International law theorists have distinguished between compliance and effectiveness. (5) Compliance refers to theories that explain why state action generally conforms to international law. These theories are like the hypotheses in our junior-high explorations of the beloved scientific method. In contrast, effectiveness is concerned with empirical causation. Does international law actually influence state action? Compliance theories are closely related to effectiveness, but they are theories and do not directly address the issue of effectiveness. They are hypotheses that need to be tested.

Whether international law actually affects decision-making begs for an empirical answer. The present essay provides a partial answer. Because questions of causation are inherently amoral, this essay addresses what happened--not what should have happened. The essay is a praxis and is written from the viewpoint of an American realist, with strong rational-choice tendencies, but it illustrates how constructivism also plays a significant role.

In addition, the present essay presents a model for understanding the actual influence or effectiveness of international law in the resolution of foreign affairs crises. The model is based upon negotiation--but not negotiation between states. Rather the model looks to negotiation within a particular state's foreign-policy apparatus.

A few decades ago, there was a concerted effort to explore how international law affected the resolution of three specific and serious foreign-affairs crises. (6) The authors of these studies recognized that a precise measurement of the impact of international law is impossible. Thus, Professor Thomas Ehrlich, frankly noted, "My concern is less with how much law affects national decisions than with the ways in which they are affected." (7) A significant problem with these studies was that they were more or less based upon the public posturing of the states involved. (8)

If the data are available, the actual influence of international law may be studied fruitfully in terms of intra[not intergovernmental relations. The foreign policy apparatus of a particular state comprises a complex variety of human actors with different interests, values, and positions of power. (9) As a result, the actors must negotiate an approach to an external crisis, and international law may play an important role in these negotiations. This idea of intragovernmental negotiations is not intended to cast light upon the eventual negotiations between concerned states. Once formal negotiation between states commences, each state's legal position may become fixed, leaving little room for international law to play a significant role. States usually are reluctant to concede that they have acted unlawfully. In sharp contrast, viewing international law in the context of a state's confidential, internal deliberations makes the issues more focused and honest.

Professor Henkin observed: "To judge the effectiveness of law one would have to examine...the operation of law on the working levels of foreign ministries." (10) Within a particular state, there may be significant differences of opinions regarding the proper resolution of a crisis. In the state's internal decision-making process, international law may play a significant role. Formulating the state's policy becomes a kind of internal negotiation in which international law may be used to advance or oppose particular policy positions.11 At this level, international law becomes plastic and subject to meaningful discussion.

There is surprisingly scant general scholarship on the actual influence of law upon any form of negotiations in legal disputes. Everyone instinctively believes that law has some influence, but no one knows how or how much. Indeed, we probably cannot know how much. Negotiation is an art--not a science. The most insightful analysis of the problem appeared almost a century ago. In 1931 Professor Karl Llewellyn theorized "that the real major effect of law will be found not so much in [litigated] cases nor yet in those in which such intervention is consciously contemplated as a possibility, but rather in contributing to, strengthening, stiffening attitudes toward performance as what is to be expected and what is 'done.'" (12) Many years later, Professors Robert Mnookin and Lewis Kornhauser speculated that "parties bargain in the shadow of the law." (13) Under their theory, "the outcome that the law will impose if no agreement is reached gives each [party] certain bargaining chips--an endowment of sorts." (14)

There obviously is a major evidentiary problem in exploring a state's internal approach to a particular crisis. We simply do not know what actually happened: "The evidence is usually not available." (15) This almost inevitable ignorance significantly handicapped the 1974 explorations of specific crises. (16) All the internal details of how the states' foreign-policy establishment actually formed their positions were not available. The present essay uses a specific foreign-affairs crisis to analyze how international law actually affected one state's internal deliberations. Presumably this analysis is applicable in countless other situations in which, as a practical matter, empirical evidence is lacking. (17)

In 1861, during the Trent Affair, (18) the British government seriously considered going to war with the United States. It was "the closest approach to war between Britain and the United States [since] 1812." (19) The legal issues in the Trent Affair have no relevance today, (20) but the process by which the British cabinet addressed the problem provides enduring insights. Because the legal issues and the underlying political situation have no significant relevance to our society some century and a half later, we can concentrate entirely upon the process.

The story of the British cabinet's grappling with the crisis is particularly valuable because today's instant communication channels did not exist in 1861. There was no telephone, and even facc-to-face discussions were impeded by the requirement of travel by horse and carriage. As a result, written communications within the British foreign-policy establishment necessarily were, to the best of the writer's ability, quite frank and accurate. Thus, there is a valuable cache of primary evidence.

1. COMPLIANCE AND EFFECTIVENESS

   Some have advanced a theory of constructivism in which actors in foreign policy internalize their belief in the legitimacy of international law principles. (21) Constructivism parallels Karl Llewellyn's understanding." The constructivism theory of internalization is essentially H.L.A. Hart's concept of the "internal aspect of rules." (23) By this concept, Hart meant that actors including public officials, may embrace a rule's legitimacy as a matter of personal belief: "For them the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow but a reason for hostility." (24)

   In thinking about constructivism, we must guard against anthropomorphizing states. A state obviously is a legal fiction that is incapable of internalizing the legitimacy of international law. A state is merely a method of organizing human activity. Many of the human actors, especially the lawyers, in a state's foreign-policy apparatus may internalize respect for international law, but by and large the foreign-policy apparatus is not empowered to set important policy. The policy makers who are so empowered typically do not have the comprehensive experience necessary to internalize the legitimacy of international law. With few exceptions, the ultimate policy makers are at best gifted generalists with little or no international law experience. For example, no president of the United States in the last century has entered the presidency with significant international law experience. The same is true of many American secretaries of state and of defense. (25) In the Trent Affair, President Abraham Lincoln and United States Secretary of State William Seward were lawyers, but they had no international experience.

   The problem with a pervasive lack of international law experience among the ultimate deciders of major policy does not, however, mean that internalization has no effect on major policy. Again, to use the United States as an example, the president typically relies upon foreign-policy advisers who may have internalized international law. Although these advisers cannot dictate policy, their advice can create a dynamic similar to what Professor Thomas Franck called "a pull to compliance." (26)

   Rational choice is the most controversial approach to compliance. (27) This realist theory presents a kind of post-hoc-propter-hoc critique of Henkin's assertion. The theory posits that in many situations there is no causal link between international law and a state's compliance with international law. The realists assert that foreign-affairs actions arc determined primarily by extralegal policy...