by Andrew
Inspired by Liberal Japonicus, I thought I’d take a look at the relative merits of international law intended to create broad guidelines vs. ad hoc coalitions brought together to address specific problems. To be precise, the question is how to best handle issues considered in our national security when working in the international arena. Say, for example, the ongoing genocide in Darfur, or the question of how to deal with Iran’s nuclear program.
International law attempts to deal with multinational/global problems by creating a framework of rules akin to those that normally bind societies. If nation A and nation B disagree over their rights to deep sea fishing, for example, we draw up a treaty that addresses the question of how far into the ocean national boundaries extend and what rights nations have beyond those boundaries. Rather than focusing on the specific, international law attempts to apply general principles to a broader audience to prevent the requirement of renegotiating details every time the issue comes up again. That is a non-trivial thing; imagine how painful it would be to have to have an agreement with every seagoing nation on where their national boundary ends or what they can do while in international waters.
Ad hoc diplomacy, on the other hand, looks at each problem in itself and tries to figure out the best way to address it. Iran may be developing nuclear weapons? Well, what’s the best outcome of that quest? Which other nations can we get to agree with us on that? What can that group of nations do to make that preferred end state a reality? That’s a lot more work than turning to international law and international institutions like the UN. Yet for most situations, I would consider it preferable to reliance on international law or the UN.
I am not of the belief that we should simply raze Turtle Bay to the ground and stop wasting our money on the UN. While the UN is a profoundly flawed body, it does have its uses. Iran’s apparent about-face on negotiations appears to have been prompted in part by a desire not to have its case put before the Security Council, and when most nations (including the big five) are united around a common goal, the UN is a useful tool for implementation of that goal.
Unfortunately, times when the world agrees on what to do about a problem are less common than we might prefer. Even when the west can come to an agreement, China and Russia often consider in their best interests to torpedo action through use of their veto. And it’s hardly unknown for the U.S., Britain and France to disagree among themselves, as was the case in the runup to the Iraq war. And if any of the big five powers disagree on the preferred solution, the UN cannot help resolve that problem. If we wish to act, we have to accept the fact some other nations will disagree with us. If we insist on using the UN, we grant four other nations an explicit veto power over our actions, and therefore we will find ourselves hard-pressed to accomplish things we consider important.
International law is even more problematic. The Sudanese government and the Janjaweed militia appear to be in violation of international law in Darfur. Yet no effective action has been taken as yet to address that situation, nor does it appear likely any will. What, then, is international law worth, if it is not enforced? I tend towards the opinion that a law that lacks an enforcement measure is of little utility. And most international law falls into that category, although there are notable exceptions. And ultimately, international law is used more in the manner a drunk uses a lamppost: for support, rather than illumination. When international law supports a position, people are quick to cite it. When international law goes against a favored position, the argument quickly turns to national interest or the right thing to do. Without a reasonably impartial enforcement mechanism, nations are unlikely to obey it when it goes against what they perceive as their interests. And since I don’t think the nations of the world are ready to empower an international police force capable of chastising nations, I don’t see this changing in the foreseeable future.
The reason international law and the UN often don’t work very well is that their very broad mandate undermines their ability in the specific case. Any solution to an international problem, almost by definition, will make somebody unhappy. The unhappy party(ies) will do what they can, then, to prevent such solutions from being implemented. The UN, in particular, is well-suited to preventing actions rather than encouraging them. Only UN Security Council resolutions are considered to have any binding force, and any one of five powers can veto a Security Council resolution. Those resolutions the UNSC produces, therefore, are generally ambiguous and of limited value in resolving problems. (Recall the ‘serious consequences’ referred to in UNSC 1441. Did those include war? Your answer to that question will correlate very well to your position on the Iraq war.) A nation looking to avoid action by the UN need only find a patron among one of the five veto-possessing powers and they can block substantive action through that route. Since at least one of the big five is generally disinterested in the ‘solution’ being offered, this tends to render the UN incapable of addressing many issues.
International action is also hampered by the natural reticence of many nations to deal with problems. We can get general agreement that what’s happening in Darfur is bad. Getting people to agree that it is worth the blood and treasure it would take to stop the genocide is far, far more difficult. The same is true of most of the really big international problems we face. I don’t think many people really would like to see a nuclear-armed Iran, but what are they willing to do to prevent it? Forming a consensus in the first place can be very difficult, as these problems often do not lend themselves to simple solutions. Forming a consensus large enough to involve the UN is often impossible with the most difficult problems. And international law, with its reliance on independent enforcement, doesn’t even work to stop problems that are already in violation of international law unless someone steps up to do something about them on their own.
International law faces another problem: a nation that may be willing to act in a particular manner for a specific problem may be far more cautious about applying a general principle. Nations tend to be protective of their sovereignty, and as such are often reluctant to sign onto broad compacts that may affect their freedom of action in the future. This was a significant factor in the United States’ reluctance to sign on to the International Criminal Court (and let’s leave discussion of the relative merits of that decision for another time): the U.S. government believed the ICC carried too much potential to harm American interests, so they kept the U.S. out. But the U.S. has been willing to utilize ad hoc international criminal tribunals in the past, and will probably be willing to do so again. In a similiar vein, trying to convince other nations to sign onto a broad new international compact is much more difficult than convincing a smaller number of nations to agree to a specific solution in a specific case.
If the UN is blocked from action, and international law is insufficient to stir nations to action, we are left either to accept that we will do nothing, or we can seek another means of influencing the problem. Ad hoc coalitions strike me as an excellent way to address certain international problems that would otherwise be left alone. Because each nation weights its national interest differently, many problems can be addressed if we work together with a smaller group that deems the problem worthy of attention, even when the UN is unable to help. That help may not be as effective as could be brought to bear by an organization like the UN, but in many cases it seems plausible to me that some help is better than sitting by on the sidelines and claiming that we’d love to help, but we can’t act outside the UN or international law.
“And since I don’t think the nations of the world are ready to empower an international police force capable of chastising nations….”
It seems worth pointing out that that was the original theory of the Security Council.
I’d also suggest some further examination of the history and development of international law over the centuries, though I have no specific pointers in mind, I’m afraid; I don’t present myself as deeply knowledgeable in the field.
“Since at least one of the big five is generally disinterested in the ‘solution’ being offered….”
I think you mean “uninterested.” “Disinterested” would be fine; desirable, even, arguably.
Otherwise, clearly the solution is for what Ronald Reagan used to muse upon aloud on countless occasions to happen: we get invaded by aliens, so we can all unite.
Failing that, someone should, as per several ancient skiffy stories, fake such a threat.
Is it just me, or is the “Our Clueless Leader, 2” thread broken now? I can’t get it to open.
I blame Anarch.
Andrew,
Unless I am misreading, you are thinking of the UN and international law as if these are two resources on which America can choose to draw, or alternatively to ignore, in a particular situation. That’s a pretty strange perspective to take. There is no obligation to call the UN before taking an action which is permitted by international law. There is an obligation to abide by international law, whether it suits US interests or not.
Of course there is usually nothing much the rest of the world can do if the US chooses to flout the law, but then there isn’t much we can do if someone breaks US law and the cops decide to let him away with it. It’s still the law.
Indeed, I meant uninterested. Hopefully it does not confuse readers, given the context.
Our Clueless Leader 2 opens for me. So I think Anarch’s off the hook.
Gary, it works for me using Firefox.
Kevin,
My apologies for being unclear. I am looking at the wisdom of attempting to create new international laws to solve problems vice working each problem as it comes. In the course of that analysis, I referred to instances in which international law does not work. I am not suggesting that the U.S. should violate international law, particularly as any treaty we have signed is no longer strictly international per the Constitution, but is considered the law of the land.
This Robert Wright essay (too bad the link generator seems offline) might be on-topic.
Andrew,
The problem I have with disregarding international law at will is that it encourages others to do so as well. While one can claim as a self-interested party that it is best that I should have total freedom of action unconstrained by treaties, it is likely not best for everyone to feel empowered to do so, both because of the anarchy which would result and because following international law was adopted because it was considered to lead to the best result for everyone.
In other words, it feels to me like the anti-international law position is trying to be a free rider, wanting to get the benefit of it in constraining others’ freedom of action while not paying for it with reciprocal restraints on yourself. How do you address this concern?
Andrew,
Thanks for that. I think I see where you are coming from (and that Dantheman misread you much as I did). But I think you are blaming the law for a problem which is really due to lack of will. Darfur is a good example. IANAL but I don’t think the Pentagon would have any trouble locating one who was prepared to approve a plan to stop the genocide by attacking the Janjaweed. UN backing would be nice, but not essential.
You know the Pentagon better than I do, so I’ll phrase this as a question: how do you think the Joint Chiefs would respond to a Presidential request for such a plan? My guess is they would play up the risks for all they were worth: the Sudanese government would back the Janajweed, so Khartoum would have to be taken, Chad would be destabilised, America would end up ruling half the Sahel. Only a very brave or foolish president would say never mind, just do it.
That’s the problem, not the legal obstacles.
Kevin,
I don’t blame the law. The law is an inanimate object. The problem, as you say, is that people don’t want to live up to it. And when it comes to international law, they can get away with doing so, because there is no enforcement agency. Therefore I see little point in trying to negotiate expansions to international law for certain issues, (for many issues, I think it’s probably invaluable), and instead stick to trying to gather groups of like-minded nations.
If the UN or existing international law helps, then by all means use it. I’m just offering an idea for situations that those tools cannot help.
As for the Pentagon, I’m sure that they would, and that contributed to the mess in Iraq. The Pentagon has such a reputation for inflating requirements in order to avoid missions they don’t like, Rumsfeld didn’t take the troop requirements they gave him for Iraq seriously. So we went in with one-third of the number we should have had.
Kevin,
I don’t think that my point is contradicted by Andrew’s response at all. I think I am pointing out another cost to ad hoc resolutions which Andrew has not acknowledged.
“…the Sudanese government would back the Janajweed, so Khartoum would have to be taken, Chad would be destabilised, America would end up ruling half the Sahel.”
Not to mention that Mr. bin Laden has been loudly proclaiming for quite some time that the Zionist Crusaders intend to conquer the Sudan for its oil, and that all good members of the Ummah should hasten to Sudan and prepare to wipe out the forthcoming Z-Crusaders, etc.
On the other hand: People in Darfur and neighboring regions still dying at a hasty pace. Imagine they were your relatives.
Dan,
I’m not advocating ignoring international law at will. I’m advocating spending our negotiating capital on building specific solutions to specific problems rather than trying to create ‘one-size-fits-all’ international law.
If the problem with international law is lack of enforcement, then there seem to be two obvious paths.
One, we can continue as we have currently, by ignoring it when it’s inconvient (like when we want to torture or disappear people) and keep undermining the whole concept. Who’s going to listen to us talking about laws when we ignore them ourselves? Laws have to be binding on those who make them, or else they’re meaningless.
The other obvious option isn’t going to fly. Not with the current occupants of the US administration, or with several other world leaders. And that’s enforce the law. Give the UN teeth, and “police”.
Andrew,
I don’t see much difference between the two. If the preferred solution to a specific problem is contrary to international law, then you are advocating ignoring international law to utilize your preferred solution.
“I’m advocating spending our negotiating capital on building specific solutions to specific problems rather than trying to create ‘one-size-fits-all’ international law.”
Comments on the Wright piece? Anyone else?
I really don’t know what I think of international law. It has been pointed out many times: the UN system protects states and their sovereignty often to the mortal detriment of people in those sovereign states. And we tend to think of states as if they were moral agents, which then licenses all kinds of collective punishment. On the one hand, I have the intuition that Israel is justified in responding to Hezbollah’s violation of their border. On the other hand, I have the intuition that it is quite wrong for innocent Lebanese to suffer death as a consequence of this response, and if I were to think otherwise, it would seem as if there needs to be some magical moral property that authorizes murder to be justified where a foreign state is involved, a property to which I can find no analogy in my other thoughts about what is right and what is wrong. It doesn’t seem to me that even aggregate strategic reasons (let us say we are gaining an increased in the safety of a thousand people in exchange for the death of one innocent person) cut the mustard. Which makes me a kind of pacifist. But that doesn’t seem right either. So I am in a quandary.
I think that (as Andrew’s post suggests) a lot depends on the specific problem. Sometimes an international treaty is the best way to go: for instance, when you want everyone to publicly commit to doing or not doing something. (Example: the Ozone treaty.) Sometimes, all you need is for enough countries to band together to solve a specific problem: in that case, ad hoc coalitions are best, especially if trying to codify the principle involved would be difficult or impossible. (E.g.: you want to get together a group of nations who can solve some specific problem, but the kind of action you’re contemplating, while perfectly legal, isn’t always appropriate; and it’s hard to see what general principle you could enact other than: Do X when it’s the right thing to do.)
I do think that international law has a potential use beyond what Andrew has described, though. I think we would be much better off if there were more general principles governing international relations than there are now, and if nations accepted the need to abide by them absent really extraordinary circumstances. (The way most of us probably feel about the laws of our country: we don’t just obey them because there are police who might throw us in jail if we didn’t; we think we should obey the law regardless, unless it’s not just wrongheaded but profoundly wrong (e.g., not just a law I disagree with, but something like the Nazi laws on race.)
We aren’t there yet, by any stretch of the imagination, but I think that in all we do we should try at least not to undermine, and preferably to enhance, the rule of law internationally. — We have never actually done this, but we were a lot closer before this lot took office.
Dan,
Er…no, that’s not what I’m advocating at all. If you want to say that I didn’t address what to do if the preferred solution violates international law, guilty as charged, but I’m not advocating violating any international laws. As I noted earlier, international law is the law when it comes to treaties signed by the President and ratified by the Senate, so it is the law and I take a dim view of violating it.
If a preferred solution were to violate international law, then my first recommendation would be to find a plan B that did not. If that was impossible, then we could either attempt to negotiate a change to the law or accept that we cannot affect the problem. But I’m not calling for us, or anyone else, to ignore international law.
I think we would be much better off if there were more general principles governing international relations than there are now, and if nations accepted the need to abide by them absent really extraordinary circumstances.
So do I. But this strikes me as falling close to the ‘pony’ line. About the best we can do is push our own political leaders to stick to the law. Even that won’t help us with the many nations who consider international law something to be obeyed when it helps them and ignored otherwise, but at least we won’t be contributing to the problem.
Andrew: pony line it may be, but that was, actually, the most important part of the reason why I supported Gulf War I. (I thought: there are precious few international norms that really are taken seriously, but one is: you do not get to just up and conquer another country. That Iraq had decided to defy this one should not, I thought, be allowed to stand.)
At least in that case, it required more than just obeying the law.
I’d like to add “…and a pony.” to my second suggestion above.
“I think we would be much better off if there were more general principles governing international relations than there are now, and if nations accepted the need to abide by them absent really extraordinary circumstances.”
The problem with international law now, is that it is for moral-self stroking, rather than a commitment to action in a certain situation. Even if there was nothing to force nations to take up arms to stop genocide, an international law which accurately reflected a commitment to do so would be useful. But the reality of international law in such areas is that the condemnation expressed does not translate in to much action. The same is true about non-proliferation, which is why I am very skeptical when someone proposes new NPT rules–which aren’t going to be enforced anyway. International effort spent talking about passing new unenforced rules would be much better spent actually negotiating and coordinating the action of different countries.
One thing I learned from being a mediator for a short time (and yes I have to cloak my personality a bit to pull it off) is that the goal is not to get an agreement. The goal is to get an agreement that both parties will stick to. A piece of paper entitled “agreement” or “mediated settlement” isn’t any good if the parties won’t actually implement it. Much talk of ‘international law’ is about getting complicated pieces of paper signed. That isn’t a worthwhile goal in itself.
Dan,
I shouldn’t have added the parenthetical remark about your comment. Apologies.
Andrew,
A suggestion: change the post’s title? “Setting International Law Aside” doesn’t go too well with: “I’m not calling for us, or anyone else, to ignore international law.”
Other than that, I say ditto to hilzoy:
“I think that in all we do we should try at least not to undermine, and preferably to enhance, the rule of law internationally. — We have never actually done this, but we were a lot closer before this lot took office.”
hilzoy,
As I said, I agree with you. But even if the U.S. made such a proposal (and I’d oppose giving the UN a police force, btw), the rest of the world wouldn’t go along. So we’re back to trying to set a good example, I think.
Andrew,
Maybe I am reading too much into lines like “Yet for most situations, I would consider it preferable to reliance on international law or the UN.”
and
“I tend towards the opinion that a law that lacks an enforcement measure is of little utility. And most international law falls into that category, although there are notable exceptions. And ultimately, international law is used more in the manner a drunk uses a lamppost: for support, rather than illumination. When international law supports a position, people are quick to cite it. When international law goes against a favored position, the argument quickly turns to national interest or the right thing to do.” (emphasis added)
Since most of your post is arguing we should be doing what is the right thing to do, it seems as if you are (likely unintentionally) advocating ignoring international law when it does not meet your needs. I am glad to see you say you are not.
Kevin,
Yep…should have gone with a B5 reference.
“The way most of us probably feel about the laws of our country: we don’t just obey them because there are police who might throw us in jail if we didn’t; we think we should obey the law regardless, unless it’s not just wrongheaded but profoundly wrong….”
And this is why speeding, jaywalking, underage drinking, and smoking marijuana, are so unheard of.
Sorry, couldn’t resist pointing out that you left a bit of a hole in that summary, but it’s actually extendible to international law, too. Stuff gets violated simply because the law has gone too far, or isn’t, in fact, enforced, or for other, lesser, reasons. International law needs to be made only according to that which is practical and likely to be enforced, just as domestic law does, if it isn’t to be disrespected.
I’m hoping I won’t have to start quoting large chunks of the Wright piece to see it brought into play.
Well, I couldn’t come up with a good B5 reference on short notice, but hopefully the new title will at least remove some of the questions about why Andrew wants to go bandit, Reynolds-style.
Andrew, not to be snarky, but to try and figure out where you’re coming from. One of the major problems you mentioned about international law was it’s not enforced. But you also said you’d oppose giving the UN a police force. Is it specifically the UN you’d oppose giving a police force, or would you oppose it for some a hypothetical reformed UN or other institution designed to enforce international law?
I didn’t find Wright’s essay particularly convincing, though he at least partially recognizes a key problem in the current international structure:
The free rider problem has been especially difficult but the international law/international institution approach thus far has been to give other countries more say and keep the costs accruing to the United States. I’m happy to share decision-making and cost in similar proportions. I’m not so happy to have lots of cost and less decision-making.
Nate,
It is specifically the UN. An extranational agency with police powers would be a very dangerous entity, since if it were truly capable of enforcing international law, it would have to be able to take on any other nation’s military. I don’t think the UN is a good place to give that kind of power. I’m not sure if we could create an agency that could use that kind of power wisely, actually. That’s what makes international law frustrating.
Andrew,
It could be dangerous, but no more dangerous than national governments. After all, any national government has to be able to take on the “militaries” of their states/cities/provinces/whatever. And the government of the states/cities/etc has to have better access to force than gangs and so on. Yet we generally seem to manage with those. But not always, admittedly. It seems like the same problems as any other government, just on a larger scale.
What if, instead, it went on a smaller scale? Have the UN/whatever have a dedicated peacekeeping/rebuilding/nation building force, which would be trained and armed to fight, but not do heavy fighting? For that, the UN would have to make up coalitions from member nations, like it does now, but it could intervene in things like the genoicde in Darfur, or the horribly botched Iraq, and work on improving conditions in other countries the same way.
Nate,
Given the problems we currently have with national governments, creating a larger version of those problems seems unwise.
Further, from a more realist perspective, I just don’t see it happening. Where will the money come from? Who’s going to provide the troops? Who will train them?
My theory is, when you don’t want other people to police you, the best way to avoid it is to police yourself. (And usually, policing oneself works better than being policed by others, so long as one actually does it.)
two legal posts and i haven’t commented on either of them. i must have violated some law about attorney blogging. [ahem]
there’s a few ideas worth teasing out a little more.
first, why have treaties?
one answer: because it signals the end of a dispute. even treaties without enforcement mechanisms can have utility as an indicator of the parties’ intentions to avoid further conflict.
another answer: to establish an enforceable obligation among nations. Prior to the creation of the WTO, trade wars were threatened on a regular basis. I’m sure that many commenters here were vaguely aware of their surroundings in the early to mid 70s. that ad hoc, power-based system is one way of resolving trade disputes.
but one reason that the powerful can benefit from the rule of law is that submission to the rule of law ultimately benefits everyone. so, several decades later, we now have a WTO. and while the world is still working out the kinks, it appears that even the US is finally coming around to recognizing the authority of the WTO.
while i don’t know a lot about international trade law, it appears to me that the WTO is, at the end of the day, very similar to the US Sup. Ct., in that it has only its own moral authority to get the governments to obey its orders.
what does this have to do with world peace, enforcement of security council resolutions and kicking Saddam out of Kuwait? zip. nil. nada.
As us land use lawyers say way too often, every parcel of land is unique. So every dispute that involves sovereignity over a parcel of land is going to be unique. and thus be perculiarly unsuitable to resolution through standing trans-national bodies.
where things get really tricky are with organizations like the IEUA, which both implements a treaty and tries to stop case-by-case proliferation.
but before we throw the NPT under the bus, it apparently worked for a very long time. [of course, we can’t exactly roll back the clock and re-run the cold war without the NPT to see how nuclear proliferation issues might have been different.] also, the planet has changed a little. the NPT was prepared at a time when the issue was conflict between the nuclear powers. now, the major conflicts exist with all the nuclear powers on the same side and the aspiring state actors on the other.
here’s a radical idea: the US could join the other nuclear powers in a major push to have all parties sign an amendment (we could call it a protocol or something) providing for a much more powerful compliance enforcement tool in return for the nuclear powers doing more to live up to their own obligations under the NPT.
[oh wait.]
Andrew,
From a realist perspective, it’s not going to happen any time soon, almost certainly.
But if you’re against the idea of making a group to enforce international law, and one of the problems you cite with international law is the inability to enforce it, that leaves us…where, exactly?
“It seems like the same problems as any other government, just on a larger scale.”
Andrew is pointing to the obvious fact that the U.S. government is a representative, constitutional, democratic Republic. The UN is not. That’s a qualitative difference, not a quantative or scale difference, and that’s the key point.
If all the world were run under democratic rules with general agreement upon, and enforcement of, human rights, we could have a World Government just fine.
Meanwhile, not so much.
Which tends to be at the point of debates about the UN. Wishing the UN were other than what it is doesn’t make it so. China, Russia: not bastions of human rights, nor is a good chunk of the world, as yet. Not to mention that we don’t look too great, ourselves, of late. The rest of the world has some reason to distrust the U.S., just as the U.S. has good reason to distrust the governments of many countries large and small.
Which isn’t to say that I don’t there isn’t a lot of good to be done by proceeding with international treaties and mechanisms and organizations. And, in fact, proposals to give the UN a standing peacekeeping force are hardly new.
“Andrew is pointing to the obvious fact that the U.S. government is a representative, constitutional, democratic Republic. The UN is not. That’s a qualitative difference, not a quantative or scale difference, and that’s the key point.
If all the world were run under democratic rules with general agreement upon, and enforcement of, human rights, we could have a World Government just fine.
Meanwhile, not so much. ”
The UN has a constitution, of sorts. And it’s democratic, between nation-states. It doesn’t account for democracy within the nation states, or democratic selection of the representatives, and like the Senate, it doesn’t account for population at all. Nation-states are not really a good base to use. And trying to add a “lower house” to the UN probably wouldn’t help. The UN is hardly perfect. But I was trying to cover not just the UN, but also other hypothetical kinds of extranational orginizations with enforcement powers.
I know quite a few conservatives have issues with any kind of “World Government” or any extra-national orginization with enforcement powers, I guess that’s what I’m mainly trying to find out Andrew’s opinion on. Because if you try to devise something that can make international law, but not enforce it at all, chances are you’ll end up with something that looks a good bit like the current UN. Dismissing international law as flawed because it’s not enforced and being against giving enforcement powers to anything ends up effectively as “ignoring international law except when it’s on our side.”
I should note that I’m not saying the last part of my paragraph is Andrew’s position, which was what I was trying to clarify.
“because it signals the end of a dispute. even treaties without enforcement mechanisms can have utility as an indicator of the parties’ intentions to avoid further conflict.”
This is true if it actually signals the end of the dispute instead of only purporting to end the dispute. That is what I mean when I say that getting to an agreement (in the diplomatic sense of a signed piece of paper) isn’t the goal. Getting to an agreement (in the sense of an actual settling of the dispute) is. The piece of paper isn’t a reliable signal for a real agreement but modern diplomatic practice is largely about pretending they are the same thing.
The kernel of the problem is: the UN was set up on a wave of idealism, but the most powerful nations have always openly treated its requirements as enforced on other people, not on themselves. (As for example, the US’s belief that when US citizens commit war crimes, they must not be subject to trial by an international court.)
Andrew doesn’t mention it, but one of the most consistent and perverse uses of a permanent Security Council member veto has been the US’s consistent defense of Israel when the Security Council votes to censure Israel for yet another breach of international law. Indeed, it seems Andrew’s entire post is directed to what other countries might want to do: not towards what Andrew might want his own country to do to improve the status of the UN – by, for example, obediently complying with international law even though the UN has no power to enforce it.
Hilzoy: Andrew: pony line it may be, but that was, actually, the most important part of the reason why I supported Gulf War I. (I thought: there are precious few international norms that really are taken seriously, but one is: you do not get to just up and conquer another country. That Iraq had decided to defy this one should not, I thought, be allowed to stand.)
Agreed. But there was the ability (and the political will) to chase Iraq out of Kuwait. Where is the ability and the political will to chase the US out of Iraq? I agree that the US should not be allowed to just up and conquer another country, but when the US decides to defy the Security Council, there is nothing – as circumstances have proved – any country can do but – allow it to stand.
“but when the US decides to defy the Security Council”
Has there been Security Council censure of the US in Iraq?
Has there been Security Council censure of the US in Iraq?
Wouldn’t that be tough cause the US has a veto?
Well, first off, thanks for listening and the hat tip.
Turning to the topic, I think it is useful to think of ‘international law’ as something that starts in the post WWII period. I make this argument because up until WWII, international law was primarily designed to protect states rather than the people in them and it is only with the realization that a state might choose to mistreat its citizens in horrific ways that it because necessary to attempt to codify some laws to actually reach within a countries boundaries to stop these sorts of acts. One of the defenses at Nuremberg was that what was done was legal. The Nazis were careful to declare Jews residing in their borders as citizens of the Greater Reich before sending them off to be exterminated (after working the able bodied ones to death), so a new theory of international law that did not presume that the state was the ultimate arbiter had to be developed. This is why one of my objections to the complaints about international law is that we haven’t really worked out how international law can be exercised, enforced and justified.
Thus, international law has to start at a place much more basic than what we are accustomed to with national law. This sadly means that it has to assemble a framework that may seem completely phatic to us, and overlook many violations that most people may think are self-evident. Sudan is one, but look at the problems with the pre 9-11 Taliban. Couple that with the fact that power, in the form of arms and weapons, is much less a monopoly of the state, and you have a situation where it is just too soon to tell.
International law, to me, has to start on the level of basic human rights, and I don’t think anyone in this forum could deny that there are people who are bereft of rights, but the problem is trying to define that basic set of rights. I’m not sure what precisely those rights might be, but it seems to be the rhetorical strategy of those opposed to international law to challenge this notion by claiming that what is being advocated is welfare for non-citizens.
I mentioned the Boxer Rebellion as perhaps the first instantiation of internationalism (note that the -ism is a bit of handwaving), but there have been plenty of international forces operating in history. The first best seller, the Iliad, is basically an international force. Brad DeLong pointed out that King Harald, before catching a Norman arrow, was a Byzantine mercenary with an army. However, the notion of an international force operating to establish law is a relatively new notion and the problem, as Napoleon found out, was that if you have lots of people follow your banner, you generally have to do more than pay lip service to the ideals you profess. But the problems of developing an international force with an appropriate chain of command are substantial, if only because such a force would have to deal with national forces that have a clear chain of command. However, I don’t see these problems as insurmountable, but they are only going to come about after a period of relative prosperity and after the most powerful nations see the value in renouncing specific abilities (like reserving the right to make a pre-emptive strike, or moving into a country without an international authorization) And given the way things have gone in world affairs, we have certainly taken several steps back and perhaps another global catastrophe may be required before the appropriate steps are taken. More’s the pity.
That this is a natural progression seems evident to me, just as the notion of a controlling religion is something that is going to go away, if people learn a relatively truthful version of history (again, I realize that the distance between intention and execution may be a bit far) Unfortunately, like the Chinese historian who was asked if he thought that the French revolution was a good thing, he answered ‘too soon to tell’.
I pass this on following Nate’s comment about conservatives with issues about World Government, a cybernetic G Gordon Liddy, Sean Hannity and Oliver North in Liberality For All which I am sure that Gary blogged about at some point, but I cannot find it.
Again, thanks for the acknowledgement.
“…in Liberality For All which I am sure that Gary blogged about at some point, but I cannot find it.”
I don’t recall doing more than pointing out in an Unfogged comment fairly recently that its “success” was purely with sales to the Limbaugh/Hanity/etc. audience, rather than to the comics market, and that liberals shouldn’t imply otherwise when Viewing With Alarm.
Beyond that it didn’t seem particularly interesting to me, I’m afraid.
It’s not, except as an example of the persecution complex that permeates modern conservativism. Of course, following Sebastian’s suggestions about what takes place in the I/P situation, it is impossible to imagine any kind of world government taking place given this kind of opposition, so the obvious logical step is to completely defeat and delegitimize this kind of thinking without granting any of the premises. Anyone else up for it?
How about a stateless police force?
Mercenary armies in history have sometimes been composed of people who were taken from, or voluntarily abandoned, their nations of origin. I’m thinking specifically of the Janissaries and the French Foreign Legion: people who were “without a state,” who joined a multinational force and fought wherever that multinational force was ordered to go.
What if we could find enough people willing to give up their citizenship to join an international police force whose only responsibility was to enforce international law? And whose only loyalty was to that law, and to the philosophies behind that law (e.g., for human rights, against unprovoked war)?
It could be cast, as the UN was, as an idealistic crusade. It would be funded and armed by all nations, like the UN and UN peacekeepers are. It could be headquartered in a historically-neutral country, like Switzerland; or in a trust territory deeded over to it, possibly an island in the Pacific or Antartica. Someplace it’s not likely to be attacked, nor drawn into local wars/politics.
Obivously, there would be a million details to work out, like whether the Instramentality (h/t to Cordwainer Smith) would be a lifelong commitment; whether Instramentality forces would be permitted to have children, and what the status of those children would be; how much authority and what kind of force it could bring against nations or non-nation actors who violate International Law; and those are just the ones I can think of off the top of my head.
It would be a multi-generational effort, to create and build. A commitment of all nations for all generations. I know there are people who would gladly sign up – the idea speaks to the same impulse that has people join the Peace Corps, Doctors WIthout Borders, and even religious orders.
If human society is evolving in its sense of what “humanity” as a whole owes to itself – and I don’t think that’s a dubious premise, since (as lj’s comment notes) our consciousness has been raised enough to even consider human rights important enough to transcend national sovereignty – then the idea of a stateless police force dedicated to enforcing international law can be seen as the next logical step forward.
Instrumentality (of Mankind).
Alternately, an Interplanetary Patrol. Although the Lensmen would do a better job.
I blame Anarch.
Don’t blame me, blame hilzoy’s blouse.
Anarch: it could have been worse. I was going to wear the equally vibrant blue silk blouse until I remembered that TV people sometimes use blue as the backdrop that somehow — who knows how? ends up with stuff projected all over it; and I had this vision of some random DC street scene dancing all over my shirt.
Thus, the red.
“…until I remembered that TV people sometimes use blue as the backdrop that somehow — who knows how?”
I do, I do! Pick me, teacher!
Or just see here.
Sebastian: “but when the US decides to defy the Security Council”
Has there been Security Council censure of the US in Iraq?
As the UN Charter makes clear, a member state of the United Nations is not allowed to attack another member state (unless there is a direct threat, and no one except perhaps the proportion of Americans who’d believed the Bush administration’s lies about Saddam Hussein having links with al-Qaeda believed that). The Security Council is allowed to form a military force which can attack a member state of the UN, if it sees need. The US was unable to convince other member nations of the Security Council that there should be an attack on Iraq (as we Brits know now, even Tony Blair wasn’t so much persuaded that there should be an attack on Iraq, as convinced that there would be and the UK ought to be at the US’s side when there was).
It’s possible that the US could recover its reputation as a law-abiding nation in the future: more than possible, if the US gets its electoral system fixed and the next administration elected is determined to redeem the crimes and errors of the current administration – but as it stands now, given that the US is plainly willing to break treaties as suits the US, there would be no real point in any new treaty or charter imposing laws on the international community which the rest of the international community would know the US would keep or enforce only when it suited the US to do so, and not otherwise.
Your summary is imprecise enough to be wrong. But in any case the Security Council was not in fact defied by the US. If you believe that the US invasion was illegal in some abstract international law sense (and I believe you do), then you obviously have a serious problem with the UN Security Council. Which is my point about the UN Security Council–it is not in reality an enforcer of international law in any real parallel to how domestic law works in a Western country.
You don’t have to look at Iraq, you can look at something clearer, like the Sudan. Security Council had a pretty awful response there too. Or look at the Balkans. Security Council wasn’t very helpful there. Or you can look at Iraq’s arms inspections in 1998, 1999, 2000, and 2001. Not very helpful there. In fact if Bush hadn’t threatened to go to war, the UN would not have acted in 2002.
“but as it stands now, given that the US is plainly willing to break treaties as suits the US, there would be no real point in any new treaty or charter imposing laws on the international community which the rest of the international community would know the US would keep or enforce only when it suited the US to do so, and not otherwise.”
This is true of most countries–it is not unique to the US at all. Every single country that signed the anti-genocide treaty is either in violation of it right now and has been for more than three years or have effectively gutted Articles 1 and 8 by defining down the definitions of “prevent” and “suppress” . The UK and France and Germany are only enforcing it when it suits them, and not otherwise.
Sebastian: If you believe that the US invasion was illegal in some abstract international law sense (and I believe you do), then you obviously have a serious problem with the UN Security Council.
Well, I do have a number of serious problems with the UN Security Council: but I respect them collectively, as the US pushed the invasion of Iraq on them, for refusing to go along with the US.
This is true of most countries–it is not unique to the US at all.
True. But the US is the single most powerful country. Had the US obeyed the will of the UN Security Council and refrained from invading Iraq, it would have shown that, even though US could defy the UN Security Council and get away with it, the US was willing to be obedient to international law: and that would have given the US considerable moral high ground in requiring that other countries also ought to obey international law.
To put it in terms you may understand: a law firm may have rules about not smoking in the partnership’s offices. If the senior partner has a habit of smoking in his office, who is going to tell him off for breaking the rules? But everyone else is going to assume that they can break the rules too, if they can get away with it.
Do you believe that the UK and France and Germany have chosen to violate the Protocol against Genocide because the US invaded Iraq?
Though over three years old I still like this post about the UN and the bits that do and do not work.
The US has severely hampered the UN when it stopped paying the agreed contributions. If you want the UN to have any teeth it needs a steady income. Maybe they should take away voting rights from countries that didn’t pay the agreed contributions?
As Sebastian stated: quite a number of agreements only work if all parties are willing to do what’s agreed. Sometimes that is a slow process, with lots of lipservice paid and no immediate action. But saying that you should do something is allready a step in the right direction; you at least acknowledge that it is the proper thing to do. The NPT had a few goals it wanted to achieve, and relied heavely on the countries feeling that they didn’t NEED nukes. I sometimes feel that Sebastian thinks it is a treaty intended to make sure that the US keeps all the big guns.
Sebastian: Do you believe that the UK and France and Germany have chosen to violate the Protocol against Genocide because the US invaded Iraq?
Why no concern for the US violating the Protocol against Genocide?
except as an example of the persecution complex that permeates modern conservativism
Was that aimed at me? I think I’m being picked on. Mom!
Re: U.S. defiance of the UNSC.
The United States signed a cease-fire with Iraq following the 1991 Gulf War. This cease-fire was contingent on Iraq complying with certain requirements. Iraq failed to do so. Therefore, the U.S. was still on legally solid ground in resuming hostilities based on Iraqi violations of the 1991 cease-fire agreement, which came about after the U.S. went to war with Iraq under UN auspices.
I worked for the American Society of International Law (as a peon) for a few years, and the issues raised here are among many of why I decided not to get into international law as a career.
And remember International Law works for 98% of all cases, planes take off and land every day, phone calls are made internationally, trade occurs, generally freely.
So for the most part, international law is quite effective. It is only when international law comes into conflict with core values such as defense, is it likely to be ignored.
As far as the UN Security Council, it may be spoken of in idealistic terms, but in reality it is an oligarchy of the “Civilized” victorous nations of WWII who would govern over the world because they knew best. It is useful when something does not come into conflict with the interests of one of the five permament members who have the veto.
International Law will continue to be guidelines until nation-states are willing to surrender sovreignty to another actor. Much as citizens of a nation state surrender rights to the state (admittedly a more Hobbesian then Lockesian POV), nation-states would need to surrender their rights to an overarching government unit.
The WTO is an excellent example of this, because while it has occasionally ruled agains the US in cases, the benefits that the WTO provides are well worth the costs. However, the WTO does not touch on the most core value – self-defense/survival, and thus I do not think that it would provide a useful model in the specific instances being discussed.
Why no concern for the US violating the Protocol against Genocide?
You’re missing the point of the question. Or dodging it. Do you honestly think that France, Germany, et al., are violating the Protocol against Genocide because of the bad example set by the US? Or do they all have their own self-interested reasons?
“But saying that you should do something is allready a step in the right direction; you at least acknowledge that it is the proper thing to do.”
Sometimes that may be true, but it doesn’t have to be. It could be that a country realizes that they can get some benefit out of saying something even if they have no intention whatsoever of doing it, and even if they don’t really believe it is proper.
“Why no concern for the US violating the Protocol against Genocide?”
Who said that? I’m deeply concerned about that. But you were suggesting that the US is the cause of a breakdown in international law. I’m merely arguing that the fact that the Protocol against Genocide is being ignored by almost all countries suggests that something else is going on. I’m suggesting that the protocol isn’t ‘law’ as you want to use the term because no country really wants to be involved in enforcing it.