Law – 2

This entry is part 2 of 4 in the series BDS and International Law

Until very recently, “international law” consisted of agreements (treaties, alliances, trade deals) negotiated between individual nations to cease hostilities, form alliances, or define political and economic spheres of influence.  While “nations” might refer to tiny city states of a few hundred thousand people or empires ruling millions, the treaty – a binding contract between the specific parties to the contract – was the cornerstone of internationalism.

While some broader “internationalist” principles (such as diplomatic immunity) evolved over time, these were primarily means to facilitate (not transcend) inter-state communication and negotiation.  The notion that there might exist a distinct body of law that bound all nations, and institutions separate from and above nation states that could interpret and possibly enforce such law on a global basis, is a very modern (20th century) concept.

With the emergence of the nation state (itself a recent phenomenon), political activities (including war) primarily took place between countries.  And as new weapons and ways of waging war entered national arsenals (thanks to the industrial revolution), these inter-state wars became particularly brutal.

It was after what people felt was the most brutal war that could ever take place (World War I, “The War to End All Wars”) that the notion of an international organization that all nations would defer to – a League of Nations – was born.

This first attempt to lay the foundations for a broader international order was based on the assumption that no nation wanted to go through anything like the First World War again, and thus national interests and international interests would forevermore be in aligned with the goal of preventing such a war.  All that was needed was an institution to facilitate communication, interpret emerging “international law” that transcended the laws of nation states, and work together as a global alliance to ensure the peace was kept.

There are a number of reasons why this experiment failed its first test (the challenge of an emerging Fascism which led to World War II), but at its core the assumption that national interests and international ones would naturally fall into alignment was at best utopian, at worst delusional.  For once a nation capable of projecting power and mobilizing international diplomacy towards its own ends emerged, what was to stop it from making demands on the new international order (rather than accepting dictates from it)?

After World War II, a new international peace-keeping organization – the United Nations – was created.  And since the fall of the Soviet Union, hundreds (if not thousands) of non-governmental organizations (NGOs) have emerged, many of which are dedicated to laying the foundation to a new set of rules – a  new truly international law – that will bind all states to behave in ways that do not disrupt global peace, prosperity and progress.

We’ll get to the glass-half-empty side of this development in a moment, but even if you consider this trend to be all for the best, this newly emerging international law runs into an immediate problem in that it does not rest on the two pillars discussed previously that undergird the successful legal systems you find within nation states: consent and enforcement.

Like treaties negotiated between states, membership in international organizations is not derived from the consent of the governed, but by the decisions of national leaders to negotiate a treaty or join an alliance or group.  And while one can claim that elected leaders are empowered to make such decisions on behalf of the governed, most nations (including most nations in the UN and other international bodies) are not democracies which means that decisions to participate (and how to participate) in international organizations are being made by an unelected individual or a ruling elite.

Regarding enforcement, even the largest and most powerful international agency (the United Nations) has virtually no military power of its own and must call upon nation states (which still remain the only actors able to exercise and project power) to “volunteer” to implement  UN mandates.  In theory, it does this by moral suasion: by convincing “members of the international community” (i.e., nation states) to demonstrate their commitment to global stability by providing the manpower and resources needed to keep the peace and prevent war and genocide.

Glancing through the last few decades, one can make an argument that this system has been effective with UN-initiated action stopping a Communist takeover of Korea or an Iraqi takeover of Kuwait, and UN peace-keepers deployed to separate warring parties in places like Yugoslavia.  But if you look a bit closer at each of these examples, enforcement of UN-interpreted international law only seems to have taken place when it was in the interest of a nation or set of nations to do so.

It was in the interest of the US and its allies to prevent Communist encroachment in Asia, just as it was in the interest of the US, Europe and many Middle East states to prevent Saddam Hussein from adding oil-rich Kuwait to his dominion.  And thus the inviolability of national borders was enforced in the case of the 1991 Gulf War, even though this principle was not enforced (or even invoked) when powerful nations (such as the US, USSR and China) penetrated borders in placed like Panama, Hungary and Tibet.

Similarly, ending genocide on the European continent was in European interests, and thus the UN intervened in Yugoslavia but only stood by impotently as Rwanda descended into murderous chaos.

Some people (including a very thoughtful commenter who visited us a while back) have noted that the emergence of a global legal system is bound to encounter growing pains, but that it must be supported and nurtured if we are to ever evolve away from a system where only nation states get to call (and fire) the shots.

This is a fair argument, but if and only if those who make it are willing to answer (or at least ask themselves) the key question of what is to prevent an international order that is not based on consent or enforcement from becoming dominated by the very state actors they are meant to impartially judge, limit or control?

Continued…

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2 Responses to Law – 2

  1. David Schraub May 27, 2012 at 5:11 am #

    I'm not convinced this history is accurate (and I agree that international law is not really “law” on consent and enforcement grounds, as well as others). Contrary to what you say, non-treaty international law (e.g., “the law of nations”) long predates the 20th century. And it's the law of war that probably has the longest non-treaty bound international law pedigree.

    In the west, “just war” theory dates back at least to St. Augustine and Thomas Aquinas, and Grotius De Jure Belli ac Pacis — possibly the first codification of customary laws of war, was published in the 17th century. Grotius clearly thought of his project as a description of customary (non-treaty) law norms: “Fully convinced…that there is a common law among nations, which is valid alike for war and in war….” The Union's Lieber Code in the Civil War held itself out as a written description of contemporary customary laws of war (which was why the Union claimed the right to demand the Confederacy respect its provisions).

    In fact, at least with respect to the law of war, you might have your chronology exactly backwards: it wasn't until the turn 20th century that we began to see treaty-based codification of international law of war principles (beginning with the Hague Convention of 1899). Until then, international law of war had been nearly exclusively customary.

  2. Jon May 28, 2012 at 9:27 am #

    Interesting take on the subject David (as usual).

    To perform the analysis I’ve been doing, I have had to gloss over a fair amount of history, including a form of “international law” (as in law which bound people who might consider themselves part of separate nations) that both of us have not brought up (even though it was probably the most successful means throughout history to provide a form of law which would be binding on individual nations). I’m speaking of the rule of empires where imperial leaders could be appealed to in order to settle conflicts between warring subject nations.

    This was actually a quite effective means of settling disputes (for example, early first century disputes between Greek and Jewish communities throughout the Roman Empire could be settled by appealing to Rome rather than coming to blows). But this came at a cost, not just in terms of freedom of individual “nations” that were part of an empire, but also with regard to having to live with arbitrary rulings from an imperial elite (the aforementioned Greeks and Jews relying on the mad emperor Caligula to arbitrate, for example).

    The notions of Just War you mention were developed at a time when thoughtful writers (like Aquinas) were hoping that non-imperial, non-arbitrary rules (possibly adjudicated by a “neutral” Christian church) could help provide a legal framework that would create a superstructure for nations (warring and otherwise) to live under. Sadly, he was writing during a period when the church itself (or disputes between schismatizing churches) were the primary cause of the type of conflicts Aquinas hoped to end.

    During this same period, it was Hobbes who proposed a solution that eventually took hold: the creation of a “Leviathan” (the state) that would implement law within the lands it controlled by being made up of citizens ready to give up their freedom for the safety of living under such a rule of laws. And while it turned out we didn’t need to give up as much to live under a “Leviathan” as Hobbes thought, his vision did turn out to be the one that helped create the two requirements (consent and enforcement) which we agree are needed for a society of laws to exist.

    Where I suspect you and I may be talking about different things is that you are looking at extra-national conventions that provided rules of warfare which were being proposed to replace “common law” rules of war such as codes of chivalry. While I agree that those things are worth mentioning, they are not the same as a set of rules or institutions that powerful political entities (such as nations and empires) were willing to give up some of their power or limit their ability to act in order to live under for higher common purpose (similar to what individuals give up in order to live in a “Leviathan-like” nation state).

    It would have to wait until the 20th century before people began to suggest non-imperial entities like the League of Nations or United Nations which they hoped would eventually provide a form of global governance that could enforce a global “will” and possibly even transcend the nation state entirely.

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