ND Law School Hosts Symposium on International Law

Notre Dame Law School recently hosted the Journal of International & Comparative Laws Tenth Anniversary Symposium: “International Law and the Rule of Law.” The symposium took place throughout Friday, February 21st, and was comprised of two panels and a keynote lunchtime debate between John Mearshimer and Mary Ellen O’Connell, on “The Promise of International Law: Realism v. Legalism.” 

Moderated by Notre Dame political science professor Michael C. Desch—though he insisted that moderators “should not moderate, [but] sharpen the debate”—the debate format allowed each speaker ten minutes for an opening argument and five minutes of rebuttal time, followed by a question-and-answer session. 

Mearsheimer, professor at the University of Chicago, took the floor first and identified what he saw as the debate’s central issue, noting that “it is a question of how international law affects state behavior.” Speaking confidently in front of the podium and without need of notes, the author of The Tragedy of Great Power Politics presented his general view, known as “realism”: international law matters, but it cannot coerce states into obedience when doing so counters their vital interests. 

Mearshimer argued that this view, which he acknowledged is “tragic,” is the logical conclusion of two undeniable facts about state behavior: the international system is fundamentally anarchic, and motivations for state behavior are self-interested. “As long as we live in international anarchy, there is no way that great powers are ever going to obey international law…when they think the laws or rules will clash with their vital interests.”  

Mearsheimer then explained the significance of military and economic power, given the anarchic international system and self-interested motivations: “What’s the basic argument? States operate in an anarchic system, there is no higher authority that sits above states…in that kind of world, what you have to do [is] make sure you have as much power as possible. For all the Americans in the room: how many of you go to bed at night worried about Canada or Mexico attacking the United States? The answer is none! The reason is: we are Godzilla, and we are surrounded by Bambis.” 

Maersheimer, throughout his argument, stressed a significant point: the distinction between domestic law and international law. The playing field, he argued, is fundamentally different: “There is a fundamental difference from the situation that exists in domestic politics, because in domestic politics you have a higher authority, what Thomas Hobbes called a ‘Leviathan,’ what we call the state.” The presence of a higher authority marks a substantial difference between the role of law in the domestic and international spheres. As long as there is no world government—which Mearshimer argued nationalism makes impossible—then international law has little coercive power in areas where vital interests are involved.

O’Connell, professor at Notre Dame Law, began her response by defining the terms of the debate and seemed to disregard Mearsheimer’s distinction between individuals acting within states, and states acting in the international sphere: “Realists believe that the world works on the basis of the human survival instinct, that individuals seek self-interest to accumulate wealth and other material goods, and that nations, just like individuals, seek [their self-interest]. Realists believe that individuals and states are locked in a competition with each other for wealth, and will use force in that competition.”

On the other hand, she argued that Legalists understand human beings as motivated by other factors in addition to self interest—such as altruistic motives—and that the “law relies on people having both instincts [self-centered and altruistic]. It thereby creates mutual principles and processes to resolve disputes and guide conduct. Law is based fundamentally on accepting and complying [with] these mutual rules and processes—regardless of coercion.” 

(Photo by Peter Ringenberg/University of Notre Dame)

O’Connell explained  that “law precedes government, and is essential to create government. Law is essential to create states…states are legal constructs that need the law to exist.” Asked to clarify this during the question-and-answer segment, O’Connell specified that “we have the natural law. This creates an idea that law is binding and that the principles we make for positive law should be respected…and natural law does one other thing for us: it sets the outer limits of the positive law we can make.” 

She closed her core argument by appealing to the ancient tradition of law, and pitting anthropological views against one another: “Both legalism and realism are ideas, they are just human constructs, but law is the far older one. It is the one that has withstood the test of time. Law is the idea we come back to after catastrophic failures to obey law. Law has developed over time with the involvement of great theologians and philosophers – they teach us the human capacity for altruism and the virtue of obedience to all, even when it’s wholly in the interest of another.” 

“These are the ideas of St. Thomas Aquinas,” she asserted, “and they should be contrasted with the ideas of another Thomas…Thomas Hobbes, [who] thought that we are at war all against all, and that we human beings would never conduct ourselves with generosity and respect unless we’re coerced into doing it – coerced by the government, and that beyond government, is anarchy.” 

The symposium was very well attended, with the audience overflowing from the lecture hall into an “overflow room,” where the debate was shown on a projector screen. 

Nicolas Abouchedid is a junior majoring in the Program of Liberal Studies, with a double major in Mandarin Chinese. He is originally from, and hopes to one day return to, Caracas, Venezuela. Contact him at nabouche@nd.edu