On the limits of international law

Analogies allow us to illuminate issues from a different point of view and break out of our self-regarding Einstellung – the belief that, having “done the right thing,” we can move on secure in the success and contented.

Analogies, then, are reflective or analytical, not prescriptive tools.

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In 1977, William J. LeMessurier,[1] a structural engineer, designed the steel skeleton of a New York skyscraper for Citicorp:

Daringly, LeMessurier placed the four columns holding up the building in the center of each side – a highly unusual feature. To compensate for it, our engineer had inserted wind braces sufficiently strong to withstand winds perpendicular to the building. He had not considered quartering winds: wind blowing obliquely to a specified direction – because the New York building code did not require it.

Subsequent calculations revealed that such quartering winds would increase the strain on the braces by 40%. Braces work best when fitted with welding points. Unbeknownst to LeMessurier, the design team, had used structurally weaker bolts – this saved money. Also, the team had redefined the braces as trusses, not columns (the building code is far less rigorous for trusses) and further reduced the number of bolts. In short, wind-tunnel tests showed that, under the effect of strong quartering winds, the building would vibrate dangerously like a pitch fork. LeMessurier convinced Citicorp. to retrofit the building – at night time, lest it result in poor publicity.

I would highlight a few points for reflection:

• Rather than being a guide to a better understanding of reality, the building code had become an institutional barrier. It became unquestioned “best practice.” The blinkers affected not only the structural engineer but more importantly, his principal, who wanted to contain costs. The overarching goal: “a safe building” was reformulated as a “rule-conform building;”
• Communication between the principal – the structural engineer – and the agents – the design team – turned out to be poor. The principal’s goal of having a structurally sound building was modified, at the agent level, by inserting goals of other principals – cost containment. There was no discussion or even feedback between agent and principal;
• The overarching trade-off: security vs. cost was never spelled out properly (nor could it have been – it remained schematic). Many agents acted independently in the situation without coordination. Inconsistencies abounded;
• The architects designed, but insufficiently tested the building;
• The flaw, once detected, was far from self-correcting. The structural engineer had left the job. He revisited the issue by chance, freely, and at his risk. Meanwhile, the owner’s goal in the situation had changed as well: no longer was the calculable cost containment paramount, but the incalculable loss of prestige.

International law is akin to creating a “building code.” It is a rough approximation of reality. It necessarily contains unknown flaws and murky compromises reflecting the interests of the principals in drafting it. In fact, “constructive ambiguities” are often at the core of an agreement. A code is useful in guiding action – a checklist and orientation. When this code, however, replaces reality, and principals narrowly (and hypocritically) follow (or outwit) it, disaster looms.

By necessity, the critical trade-offs are only spelled out schematically. Safety vs. costs; lives vs. effectiveness in war – many people will have to make decisions in the context without sufficient guidance or experience. We spend more time learning the rules rather than testing how properly to make trade-offs.

In international law, mending and amending the rules is a difficult undertaking. Precedent and the pursuit of stability make revisions difficult. They are soon out of date – yet immutable. Whistle-blowing is unwelcome, for it implies the loss of international image.

Personally, I find the current legalistic approach worrying for, in their frenzy to codify action; the lawyers are constructing an ersatz version of reality. When Ersatz meets reality, it is found to have flaws. This discrepancy results all around in the perception of hypocrisy. The outcome is a loss of trust, with participants taking refuge behind paragraphs in close combat over interpretation. The solution has become part of the problem.

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[1] Gary KLEIN (2003): The power of intuition. How to use your gut feelings to make better decisions at work. Doubleday, pg 114-115

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