Saturday, September 7, 2013
The Illusion That Is International Law (10/1/2004)
NOTE 1: The following post has no bourbon content.
NOTE 2: I wrote this in 2004, a year or so after the invasion of Iraq. It is factual and explanatory, not an opinion. My intention, then and now, is to help people better understand the reality and limitations of what is known as "international law." It is, of course, relevant now with regard to Syria.
NOTE 3: I've been on vacation. Normal blogging activity will resume shortly.
On September 17th (2004), United Nations Secretary General Kofi Annan said in an interview with the British Broadcasting Corporation World Service that he believed there should have been a second U.N. resolution to determine the consequences of Iraq's failure to comply over weapons inspections.
Asked if he viewed the invasion of Iraq as illegal, he said: "Yes, if you wish. I have indicated it was not in conformity with the U.N. charter--from our point of view, from the (U.N.) charter point of view, it was illegal."
If you read the full quote, you can see that Annan was careful to qualify his answer, but those qualifications disappeared in most reports, which simply said, "U.N. Secretary General says Iraq invasion was illegal."
The qualifications matter, a lot, because they go to the heart of what so-called "international law" is and is not, and how it differs from what most people understand the word "law" to mean.
When politicians and commentators talk about "international law," they usually fail to explain that what is called "international law" is very different from the ordinary, everyday law to which you and I are subject. If we break a law and are found guilty by a court, we can go to jail, or be required to pay a fine, or required to pay some sum of money to another person. Ultimately, the government body in question (whether it be a city, state or nation) has the authority and power to enforce its rulings, by force if necessary, and they usually do so without hesitation. If, like most people, that is what you think of when you see the word "law," then by comparison "international law" is practically a euphemism.
Advocates of international law would like everyone to equate it with the common understanding of the word "law." That is why they use the term. But if there were truth-in-advertising in international rhetoric, the term "international law" would have to be banned.
"International law" consists of a web of multi-lateral and bi-lateral agreements among and between sovereign states. The first "international laws" were trading agreements that became standardized and to which most nations subscribed. Today, the various courts of "international law" operate under the auspices of the United Nations. If you understand the United Nations to be to international law what the State of Illinois is to Illinois law, you can begin to see the problem. Persons, whether natural (you and me) or unnatural (corporations), are subject to Illinois law. The state of Illinois can send armed officers to take me into custody to enforce its laws. It can order my bank to give it my money. It can even kill me.
For the most part, units of government are subject to the laws of superior units of government, but not to inferior units. In other words, the state of Illinois can pass laws binding the city of Chicago and has direct and effective ways to enforce those laws. Likewise the federal government can make and enforce laws that bind Illinois. (The reverse--whether Illinois can enforce its state laws against the federal government--is a complicated question beyond the scope of this article, but in principle it cannot.) So, a city's government is subject to the laws of a state or federal government in the same sense that I am, and a state is subject to the laws of the federal government in the same sense that I am, but that all ends where national sovereignty begins.
With international law, sovereign nations are the subjects. What can the United Nations do to a member nation found guilty of violating an "international law"? If the United Nations imposes sanctions on a nation, it relies on its member states to abide by the sanctions regime. International law only works when it is in everyone's interest to go along. When it is not, they don't, and there isn't much anyone can do about it. Unless, that is, they have a military and the willingness to use it. Then so-called "international law" can provide a handy rationale for military action.
In an Illinois courtroom, at least ideally (and, in fact, in most cases), the law applies equally to everyone. This may be true of international law in theory, but in reality it is always political.
Nations voluntarily submit themselves to the various bodies charged with hearing cases and making rulings about alleged breaches of international law. They can cooperate during a trial and then say, "no thank you" to the verdict, or they can say "no thank you" to the entire process. As a rule, nations abide by international law except when they don't. When they don't, the political part kicks in, first prodding and persuasion, then maybe sanctions, which might or might not be effective at punishing the offender, depending on the offender's susceptibility to international pressure and on the willingness of other nations to bring it. Imagine if the IRS collected taxes that way.
It is often said that the United States Constitution "is not a suicide pact," meaning that any right can be reasonably limited when permitting its full exercise would threaten the nation. Likewise international law is not a "suicide pact." Sovereign nations never will submit voluntarily to rulings that threaten their sovereignty and the United Nations has no independent ability to compel them to submit. Until the United Nations or some other world government has it own military, a military superior to every other, "international law" will remain an illusion.
So the United States invokes international law to defend its invasion of Iraq (Syria) and the war's opponents invoke it to condemn the invasion as illegal. Who is right? Neither? Both? Both sides have an argument, but so what?
That is what "law" means when you put an "international" in front of it. Ultimately, not much.