When debating a matter of international law with people (say, the Israeli/Palestinian conflict) they will often say “Well, international law is illegitamate / doesn’t matter / no one follows it / US law supersedes it / etc. so your appeals to international law are moot.” What do I say to these people to convince them of the legitimacy of international law?
I once read in my international law textbook that the question “Is international law `law’?” is “a standard sherry party question”.
Let me give a few different approaches, of increasing complexity. The appropriate answer no doubt depends on the audience! And their level of knowledge, analysis, friendliness, disposition, and so on…
1. What’s the alternative?
Sometimes a good rhetorical approach, although not with much in the way of analysis, is: “Well, you are against international law then? Would you rather see international chaos? Don’t you think there should be rules regulating the way States act in relation to each other?”
In my experience, very few people are against international law per se. But if they are, then they essentially accept that might makes right in international relations. They must, to be consistent, reject reciprocity as a moral principle. They must say that, if my State considers its “national interest” to be in invading and destroying yours, then it can and should do so; just as your State can legitimately eat mine. It is the law of the jungle, embracing without restraint the primordial political terror that the more powerful can consume the weak. Perhaps some extreme jingoists think this in the US, because they really think America really is the best. (I should add that such extreme jingoists contain most of the conservative and liberal establishment; but this is a small fraction of the population, which is much more humane.) Well then, such extreme jingoists are shown to have rejected the first moral principle of reciprocity, that you should do unto others what you would have them do unto you, and is not a very good thing for a wholesome God-fearing patriotic Christian to say, is it? And, if we really need to prove that America is not the best in international relations, well I think we are capable of doing so from a few historical facts of foreign policy.
But in my experience that doesn’t happen much. People think international law is a good idea, but it’s just ineffective, a joke, etc. Well, fantastic — in that case they agree with you that it wold be great to follow international law! And presumably also, that it’s a catastrophe when it is not followed as regards war and peace, which are the worst possible international crimes. If one calls it a joke, there is not much humour in it: seems one is shrugging one’s shoulders, with a snicker, at vast suffering and terror.
So, they should work with us to see that it is followed.
But in fact international law is not ineffective. Which brings me to the next approach…
2. International law is followed every day, all the time, everywhere.
Every time you step on a plane, every time you buy something that has been imported, every time a ship crosses the ocean, international law is being applied, indeed followed in minute detail. There are conventions, regulations, customs, regulating all of these things, which form the body of international law. And, when such laws are breached, its sanctions will usually be applied, whether voluntarily, through the implementation of international law by national governments, or by bodies like the WTO. The laws of the EU — which are more regional than international law, but nonetheless supra-national — are now so intricate and cover so much of everyday life that it has become in some ways the de facto or default lawgiver in Europe. It has a mission to harmonise many, ever-increasingly many aspects of member states’ laws; and as we see especially in the news recently, similar considerations apply to fiscal policy.
Sure, these mundane laws are very different from the laws about war and peace. But that is only a matter of degree. From these regulations of trade and commerce and the like, we have conventions on labour rights, endangered species, trade in drugs, dangerous chemicals, etc; and all manner of human rights, economic, social, cultural, civil, political; from these we have conventions regulating the treatment of human beings in prisons, trafficking, indigenous peoples; against maltreatment and torture; regulating the treatment of human beings in conflict situations; through to the laws of war, public international law, the principle of self-determination and the prohibition on the use of force in international relations.
How many of these laws are effective? All of them, though in different ways and to different degrees. There is barely a national supreme court in the world that will not stop and consider national laws in the light of international conventions and law. There is not a government that will not view criticism from the UN or human rights organisations as a political cost, and usually a significant one. The EU has courts which will override national laws when they abrogate human rights or other laws. International treaties are sometimes automatically implemented in national law; in the US constitution once ratified they automatically become “the supreme law of the land” (although that may not have much effect without national legislation). The ICC is now actively using international police mechanisms to apprehend international criminals. The UN has a court which will rule on any matter of international law between States (although its jurisdiction must be voluntarily accepted by the parties). Indeed it can and does rule on matters of war and peace — and in 1986 did so rule against the US for its use of force against Nicaragua, despite the US trying to escape its prior voluntary submission to the court’s jurisdiction. The Security Council can approve all manner of measures, from declarations through economic sanctions through to the use of force, to achieve legal objectives.
The direction in which things are heading, then, is clear. International law covers increasingly many aspects of our lives; and the proportion that is followed, rather than is flouted, is rapidly tending to unity.
It is true that those laws which are most difficult to enforce are those dealing with the use of force. There is no standing international army or police force (and it is not clear to me whether that would be a good thing). The international organisation of the world is still as “an infinity of little, jealous, clashing, tumultuous commonwealths”, to borrow Alexander Hamilton’s nice phrase. But peacekeeping missions can well be thought of as upholding the international law of war, and there are cases where the UN has more or less fought under its own banner, rather than peacekeeping, at least ostensibly (perhaps not in reality) for international law: in Korea, maybe in Somalia, various places in Africa (“peace enforcement” is now the preferred euphemism). And as regards non-superpower States, however, the law holds almost without exception, though the exceptions are certainly significant. Note how quickly much of the world lined up with Kuwait when Iraq invaded — despite geopolitics, despite oil interests, despite the curious meeting of the US ambassador to Iraq shortly beforehand, etc. It was a clear breach of international law, and it was rapidly rectified. Moreover, the force of international law, also as reflected in the composition of the international coalition, was at least part of the reason the US-led force did not proceed futher into Iraq once Kuwait was liberated, and did not assist subsequent anti-Saddam rebellions (probably a small part; the other, probably preponderant, reason being that the US had an interest in keeping Saddam Hussein in power, usually expressed as a desire for “stability in the region”).
It is probably true that effective implementation of prohibition on the use of force is more likely to come through political pressure than by court decisions, though court decisions add ideological weight and pressure. The ICJ deicision in Nicaragua vs. US can arguably be seen as a Marbury vs Madison type moment in legal history, as the assertion of a court’s power in a constitutional balance. But its effect so far is quite different, in fact, leading to its marginalisation and blacklisting from history by the superpower perpetrator.
As I have found personally, international law is a powerful argument for activists. It appeals to law-and-order conservatives — “We should enforce the law!” And it also appeals legalistic-minded liberals — “If you want to change the world, change the law! Oh wait, the law is already good! Well then apply it!” As such, it is a powerful ideological weapon which can be used politically to achieve rational, peaceful, ends — which are also the self-proclaimed ends of international law itself.
It is mainly radicals, I find, with whom arguments based on international law do not work so well; because they tend to have a (largely correct, I think) critique of law in general, and eschew legalistic analysis. The stereotypical liberal view that great change can be achieved merely by elections and legislation is extraordinarily narrow view, an anaemic analysis; the stereotypical radical view is to see a whole of legal change, social change, activism, economic activity, culture, and often repression, as all part of the activity of the social organism — a view much closer to the sociologists and, I think, much better grounded in history and social science; the view we ought to take, I should say, if we want to understand the dynamics of human societies so as to move them towards some degree of civilization.
Indeed the law is often written by the powerful, and serves the interests of the powerful. Its proclamations of justice are often hypocritical; its proclamations of equality are often superficial and purely formal. The law may equally protect the strong and the weak, but the strong will afford better lawyers, who will cover the vastest crimes in words of crowning glory. As Anatole France famously said long ago, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” The law also, in its majestic equality, puts massive procedural obstacles in the face of the oppressed, and it relies upon the policeman’s baton and the jailer’s key — always preponderantly weapons of the strong against the weak — for its application in the final instance. Such critiques of law and legalistic thinking are long and powerful, I think. The law is indeed an ass.
But as against this analysis, there is also a broad view of international law, putting it in a world-historical context. (Either as an aspect of the world-system, of historical materialism, of the progress of Reason and civilization, etc., depending on one’s philosophical predilections.) Essentially, all radicals, in my view — all those wishing to analyse and change the system at its roots — should view global political unification as at least as important a goal as any economic one. If you are prepared to countenance or advocate for radical change or revolution in the economic sphere, you should consider something similar at the global political level also. It seems to me there is much more focus among radicals on economic revolution than on world federation; perhaps because the latter is so obvious and also so distant. But I think more should be said about it; it is inspiring, and it appeals both to the dignity and unity of humanity as a whole, as well as to a proper outlook on the universe. As to which…
3. International law develops quasi-inexorably by world-historical forces
Of course, it’s true that international law is in many ways still embryonic. I have heard it said (possibly in the same international law textbook that informs me about sherry party conversation) that the level of development of law at the international level historically lags about 500 years behind the national level.
So, one can think of international law as being vaguely analogous to law in, say, England or France 500 years ago. At which time, at least as I understand it, law was basically enforced by local courts and magistrates, tied to the feudal power structure, with more or less injustice depending on the autonomy of the town, the cruelty of its rulers, its economic condition, and so on — and with separate ecclesiastical and civil courts, with laws and regulations differing from town to town, a fantastically intricate mess. Laws slowly congealed out of customary practice, not to mention political expediency, but, especially in England, the doctrine of precedent led to an increasingly universal, increasingly generalised and abstract systems of laws, though developing in piecemeal, often haphazard, often contradictory fashion. (In medieval France and Italy attempts were made at compiling vast compendia of local customary law as early as the 12th century — but not until Napoleon did national codification occur. Germany is perhaps the extreme example of codification, but not until 1900; a vast code have been written starting from axioms and proceeding, in deductive Euclidean fashion, to deduce every law from them. Sadly human society is more complicated than Euclidean geometry.) This was not a fast process, evolving in historical time periods, for instance with the essential notions of modern English tort law not crystallizing until 1932. And while we could see jurisprudence as some rationalist development of the eternal light of Reason through History, the inexorable path from Darkness to Light, that is not the case either: important advances in the justice and individual liberties enshrined in legal systems were not (and could not have been) won by convincing the King’s Bench, but by armed rebellion; of which the Magna Carta is the most obvious example.
In any case, we see that, over periods of historical time, there are pressures to harmonise and to unify disparate laws across territories: political unification (by rape and pillage, royal marriage, etc); deepening of economic integration by trade and commerce; loss of authority by parochial institutions like landed gentry; loss of dogmatic power in the church; rise of a bourgeois merchant class; and so on. In different countries the process varied of course: England and France may be the most historically significant because of their imperialism, not only in terms of plunder and genocide, but also in terms of export of legal systems. So the evolution is interesting, and I am no expert in it, but one can well make the claim that inexorable political and economic forces — the facts of economic growth and integration, the scale of agricultural and manufacturing industries, the growth in size of sovereign political units (often by means of vast brutality), the revolts by populations discarded and trampled in these developments — led to abstract systems of laws which covered vast expanses of the globe and which, in earlier time periods, would have appeared impossible.
This argument from the long view clearly applies in the present day; there are important differences in the twentieth century, as outright imperialism is renounced and notions arise like self-determination, decolonization, and so on. But imperialism by other means — and sometimes the original means — is alive and well, and the economic trajectory seems to be continuing. The world will increasingly need stronger and stronger international laws. Indeed, just like the rising bourgeoisie of the 17th and 18th centuries, modern transnational capital demands it. Not just the growth, but the mere stability of the global economic system are imperiled by an international regulatory vacuum. Speculative capital flows devastate national economies on a regular basis; not just the poor people in such economies, but capital also is devastated in the process. So it comes to pass now that the IMF — essentially transnational capital incarnate, although importantly it consists of nation state members — is now advocating to Wall Street and G-20 nations for a tax on financial firms and activities. Such a policy, if it is to be applied consistently, or meaningfully, must be transnational in nature, and include something like a Tobin Tax — which would be a remarkable revocation of sovereignty. If there is one right that the sovereign State guards most jealously for itself, it is the right to collect taxes. Nothing will provoke a crushing military response from the State like the city in rebellion that refuses to pay taxes and grants itself the right to collect them itself.
Something similar is true with climate change. The response must be global. Any global trading scheme — indeed, any global scheme whatsoever to act against it — must be administered at a supra-national level. At the very least, some wealth will be collected and distributed according to international rules. This is the kernel of truth in the climate denialists’ hilarious claim that a global emissions trading scheme is a conspiracy to create a world government.
Less legalistically, but at least as powerful politically, is the power of organised populations as a force for international law; and as a force to achieve its most difficult aims. The mobilizations of well over 10 million people around the world against the Iraq war, before it even started, were historically unprecedented; the organised population is now called by elites “the second superpower”. There is no doubt that the law against the use of force in international relations is gaining momentum, though the superpower government is an exception, and its wars set the cause back significantly. Hence the crucial need for the US antiwar movement — to remove the superpower’s roadblock in the path of historical progress.
World government, or world federation, are very distant possibilities, but one can see the pressures towards them. Historically, such great unifications have come only in the wake of vast tragedies (the EU, the UN), as against an external oppressor (ancient Greece, the US), or by brute force and war (most European states, all European colonies). Somehow royal marriage is no longer an option! The existence of sovereign States as the supreme arbiters of power over arbitrary geographical regions is objectively irrational and absurd, something which is so obvious that a child can see it, yet so inured is the national mentality that almost no adult can.
Today we have vast tragedies still unfolding — in Iraq, Afghanistan, the middle East. We are only seeing the beginnings of the tragedy of climate change. We have recent past tragedies: New Orleans, the Indian Ocean tsunami, and so on. We may well view climate change as an external threat. It often seems to me that only fantastic cataclysmic events — an asteroid strike, contact with an alien species — could really move us significantly towards world federation. But that is only in the short term; in the long term, we can say very little, and things change so fast today that all we can say is that the world in 10 years (let alone 100, or 1000), will be completely different from today’s.
Reason alone demands a federation of human beings, I would say, and economics, politics, civilization — including short-term and long-term factors — are inexorably taking us in that direction. That is, if we do not destroy ourselves in the process, which we very well might. It is still the stuff of distant utopias, but it is still, I think, an inspiring goal. If there is any political lesson to be learned from the axiomatic scientific fact that we live on a small planet in an unfathomably vast universe, it is that our national boundaries and differences are petty, arbitrary, and in the final analysis, meaningless — we are but one small world, and ought to act and govern ourselves that way.