Wednesday, January 26, 2011

What is International Law?

Jonathan1 and I are having a conversation, over at Jewschool, and for the umpteenth time, about whether there is such a thing as international law. I initiated this round by suggesting that the trial of Milosevich was an example of the implementation of international law. Whether imperfect or even at times immoral, my basic position is that we cannot dismiss international law as non-existent. Jonathan1 disagrees. I thought I'd post some of his comments here, followed by my own:
You are giving an example of how international law doesn’t exist. In this case, all sorts of political/diplomatic reasons led to the ICTY, which tried Milosevich (if I remember correctly it was the ICTY.) And he was then convicted under UNR 827 and for violating the Geneva Conventions.) The problem is that this was the .01% of time that this sort of thing happened under a UN Resolution.

Nations violate UNGA and UNSC resolutions every day, with impunity. Even more, unless a special tribunal (like the ICTY) is set up, there is nothing resembling a judicial method to decide if such Resolutions are actually violated. And even if something like that does happen–see the Goldstone Report–there is no avenue of enforcement or redress. [...]

Nobody decides, because there is no judicial mechanism–nothing that resembles domestic courts, to which just about everybody in, say, the US defers to–even if there is a place like the ICJ, only countries in that treaty commit themselves to follow the court’s verdicts–and that doesn’t even happen so much. Who then enforces the verdict? [...] Nobody, because law only exists in the sense that a given society abides by it, and that the society abides by Law’s enforcement mechanism. That’s just not the case on an international scale.
Everything you wrote is true. However, this doesn’t mean that international law doesn’t exist; only that it’s selectively enforced under a specific alignment of will, capability and circumstance. There are some, many in Europe, who wish to make enforcement more typical than not, albeit, more cynically, to enhance their own interests.

Look, I agree with you that national sovereignty reigns supreme - the international system is based on nation states and their interests, not transnational institutions. That doesn’t mean that international law doesn’t exist, however. The UN Charter, to which all nations, as far as I’m aware, have agreed to, delineates certain responsibilities which states have to meet, which they might otherwise not. Likewise, broad-based (but not universal) international agreements impose something approaching common civic standards on governments, including those which are not a party to them.

You don’t like the word “law”, because it has a specific meaning, and I understand that, so allow me to restate the matter. International Law is not about justice, it is about competing national interests.

Although, one could also make the case that national law is not about justice either, but about competing societal interests. What makes law just? Is it majority or super-majority consent? Is that really justice, or mob rule? What is justice? All good questions.

The bottom line is that, under that rare alignment of will, capability and circumstance, international law does exist - a judgment is made and enforcement is carried out. That should end the debate over whether international law exists, because in some instances, it obviously does. The argument we should be having is whether international law is consistent, enforceable, or just, and whether we should be working to make it more so, or not.

On My Bookshelf