International and foreign relations law professor Michael J. Glennon has posted a new paper to SSRN, "The Road Ahead: Gaps, Leaks, and Drips," which will be of considerable interest to both scholars and practicing lawyers trying to get their arms around questions of fundamental method in international law governing the use of force. The article appears in 89 International Law Studies 362 (2013). (This is the famous "Blue Book" long published by the Naval War College; under the leadership of editor-in-chief Michael Schmitt, it is now moving to online publication, and I'm privileged to serve on the advisory board.) Volume 89 is a treasure trove of writing on two thorny issues in the law of war today: the geography of conflict and questions of cyber conflict - readers of Lawfare will recognize many of the authors from this blog, and the whole volume is highly recommended. Glennon's abstract is as follows:
Neither international law generally nor the law of armed conflict in particular is complete. Each contains apparent gaps, which are filled by the “freedom principle” (which permits states to act absent an established prohibition). Whether a specific gap exists must be determined case-by-case. It is unlikely that, if gaps do exist in the rules governing cyber-conflict, those gaps will soon be filled; the conditions necessary for the creation of effective international rules regulating cyber-conflict do not currently obtain. Among the most important of those conditions is attributability, which makes possible the threat of retaliation and deterrence. While the “attribution problem” remains a serious impediment to the formulation of effective international cyber-conflict rules, this barrier is mitigated by the possibility of leaks of the sort that occurred with respect to Stuxnet. The most likely future scenario is still, however, the continuation of “drip-drip” cyber-attacks that cause considerable damage.
The precise controversy driving this essay is cyber conflict and the widely discussed Tallin Manual that Michael Schmitt has been widely disseminating. Glennon is skeptical about the Tallin Manual's fundamental approach to cyber conflict issues - skeptical the law is complete enough to be able to answer the necessary questions. Much of the skepticism arises from the problem of attribution - if one can't identify the source of the cyber attack, or do so in a way that can convince the rest of the world, retaliation and deterrence won't work.
The long-run importance of this article (particularly in relation to Glennon's run of writings on method in international law over the past few years, including an important 2010 book on the subject, The Fog of Law: Pragmatism, Security, and International Law, as well as articles in Policy Review and elsewhere) is likely to be not specific disputes about the Tallin Manual or cyber, but instead the "meta" issues of international law method. On this "meta" matter (at least on my reading of this article), it is not so clear that Glennon and Schmitt would disagree over method in international law as a general proposition, even while differing as to how much "law" is available to answer specific questions today regarding cyber.
Glennon articulates a method in international law that he describes in his earlier writings as "pragmatic," and one that takes as fundamental that international law is not a complete system of law (unless, as noted below, it incorporates a "saving" notion of the "freedom principle" which, so to speak, saves it as a complete, formal system by ... formalizing its pragmatism). It is much closer to a system of "law" that incorporates diplomacy, international politics, the interests and ideals of states, realities of the differences of power among states - none of which deprives the system of the status of "law," but which does mean that it is necessarily incomplete, open to differing answers to many important questions based around criteria of reasonableness, and not essentially deductive. In this, Glennon articulates a particular version of a general view of international law, its meaning and elaboration, that traditionally is associated with the US State Department - which, to emphasize, accepts that international law does fuse into it important pragmatic and real world elements, and yet without giving up its place as "law." It seems unlikely to me that Schmitt would disagree with that as a general methodological proposition; their dispute over cyber seems to me to run much more particularly to the facts of cyber and to how easily existing models of international law of armed conflict can be applied to it.
Nonetheless, in the wider world, this view of international law and its method and sources is sharply contested. International law scholars are arguably more inclined these days to more formalist views of international law; the pragmatic view is seen (correctly) as favoring the interests and ideals of the most powerful states. To which, I have argued (most recently discussing Glennon's views in my book on US-UN relations), the answer given by the State Department has long been that this somewhat messy, decidedly pragmatic mix in defining sources and methods in international law, particularly in the questions of use of force, serves to protect international law from itself. Left to its own devices, so to speak, "international law" in the hands of its experts and enthusiasts tends to march itself off a cliff, attuned only to its own song; it becomes ever more internally "pure" but ever more disconnected from the world of international politics where, ultimately, it must live.
The State Department's seemingly sometimes unprincipled, pragmatic, messy approach to international law thus serves - paradoxically - to ensure that it remains "law" in the real world. Far from undermining international law by bending it to political realities and interests, the US State Department's long run approach works to pull it back from the brink created by its own internal dynamic driving toward internal purity, on the one hand, but thereby removing incentives among the great powers to take it seriously as law, on the other. Glennon's "pragmatism" in international law is a leading contender for how to work out that theory as more than just State Department (and not just the State Department, but foreign ministries of other leading states) practice over decades stretching to centuries, but instead an actual meta-theory of method. This article, The Road Ahead, aims to apply that general method to new problems, and whether and to what extent one believes that cyber presents genuinely new issues not addressed by the existing rule-book (I myself have mixed views), the discussion of method will remain very important. The core observation in this particular essay is that the pragmatic way forward is embraced by the general principles underlying international law - viz., the default rule of the "freedom principle":
International law does not present a neat sequence of straightforward binary choices between “A” and “Not A.” Junctures that the formalists regard as forks along the way in fact present a third choice: neither “A” nor “Not A.” The third choice is “No law.” At these junctures, the category in question doesn’t seem quite right, but rejecting that category doesn’t seem entirely right either. These are questions on which the law is either non-existent or unclear, but the result is the same: reasonable people can differ.
Contrary to the formalists’ fears, however, acknowledging ambiguity doesn’t open the door to a law-free zone, because international law applies a default rule in such circumstances. Its default rule is the famous freedom principle, from the Lotus case. The principle has it that in the absence of a rule a State is deemed free to act, and that a burden of persuasion falls upon the State that alleges some limitation or restriction on another State’s freedom of action. The formalists are, perversely, in this sense right that there are no gaps in the international legal order; what would otherwise be a gap is filled with the rule that a State is free to act unless some other State has shown that the acting State has consented to a restriction or limitation on its freedom of action. This possibility of a third option in resolving a dispute concerning the applicability of a category is more than a kind of juridical afterthought, invented for dealing with legal uncertainty. The third option, the freedom principle, is an affirmation of State sovereignty that encapsulates the foundational architecture of the international legal order.
So the formalists and the pragmatists can ultimately break bread together, provided one embraces the "freedom principle" as the default rule in international law; in real life, of course, the freedom principle attaches to the pragmatist and not the formalist. The pragmatic approach to international law method that Glennon espouses seems to me to be right; I don't see it as so much in conflict with the Tallin Manual, as noted above, and don't think that one's views of the Tallin Manual and its basic conclusions determine how one ought to think about method of international law. Whether one calls it a pragmatic approach, or a "reasonableness" approach or, as I tend to prefer, a "plausibility" approach - some version of this has characterized US foreign relations law and its relation to international law for a very long time, promises to continue to do so, and so it is important to study closely sophisticated theoretical efforts to explain and undergird them as more than just a form of practice.