International Law? There Is No Such Thing

WARNING: No bourbon content.

In their criticism of the Trump administration's recent policy change, regarding separating the children of asylum-seekers from their parents upon arrival, many have cited the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 protocol that says the U.S. must recognize refugees that fear persecution and are not able to get help from their home country. They say that by arresting asylum-seekers and putting their minor children into protective custody, the U.S. is in violation of that international law.

I don't approve of that policy, nor did I approve of the U.S. invasion of Iraq in 2003, but both events raise the question. What is international law? Here is something I wrote in 2004.
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On September 17th, 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."

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, be required to pay a fine, or required to pay some sum of money to another person. Ultimately, the jurisdiction 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 multilateral and bilateral 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.

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 violator, depending on the violator’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.

So, the United States invokes international law to defend its invasion of Iraq and the war’s opponents invoke it to condemn the invasion as illegal. Who is right? Neither? Both? Both sides have a case but, ultimately, so what?

That is what 'law' means when you put an 'international' in front of it. Ultimately, not much.