With the US rampaging around the world, with air strikes and assassinations, one doesn’t hear too much about international law these days. Our current Administration premises its policies on realpolitik, relegating international law and morality to the proverbial dustbin of history. I look on this with mixed feelings, born of a lengthy engagement with international law and a greater degree of self-reflection.
Some decades ago, I was a big fanboy of international law. In both college and law school, it was a major part of my academic career. I was even a student member of the American Society of International Law and the founding editor of the Michigan Journal of International Law. As a junior lawyer, although I shifted my focus to telecommunications, I continued to work on international telecommunications regulation issues for a while. When I got back to school, I chose to write my dissertation on the history of arbitration: the peaceful settlement of disputes between countries from the late 18C through WWI. I also wrote an article on certain aspects of British treaty practice in Africa in the late 19C.
Of course, during that time—stretching from the 1970s to the 2010s—the nature of international law changed as did the ways in which we study its history. Along the way, I’ve come to take a more critical stance about International Law than I did as a youth. Back then, I subscribed to the idealistic view of international law as a vehicle for incremental global progress towards peace and the rule of law. It was still a work in progress, but progress was being made, both in terms of principles and general adherence as well as of the construction of more extensive sets of rules and regulations governing international trade and other activities. Now I see the later portion as continuing to progress, but the grand vision is looking pretty faded.
One of the essential problems with the general public perception of international law has to do with the word “law.” Most of the time, we think of traffic laws, criminal laws, corporate law, etc. These are all within a domestic context and are enforced by the relevant sovereign government (e.g. Colorado, Canada). This type of law “works” because it is generally accepted by the people subject to it, usually complied with, and enforced by the government through police and courts. It's part of the social contract we have all implicitly signed as members of a particular society. In this context, it’s OK that Coloradans drive on the right side of the road and the British drive on the left or that a will in Delaware requires two witnesses, but in the Netherlands, you have to have two witnesses plus a notary. Differences in national rules and behavior are entirely acceptable.
International law, on the other hand, isn’t really “law.” That is to say, there’s nobody to enforce it. Countries (which are the subjects of international law, just like citizens are the subject of Colorado law) haven’t signed any “social contract” by which they agree to accept and abide by the rules enacted by the UN or WTO or similar groups. Even if a country signs a treaty, there’s nobody to enforce it once it’s breached. For example, a few years ago, the International Court of Justice ruled that China’s claim of control over much of the South China Sea was unfounded. Now, China had signed the ICJ’s underlying treaty, but there’s nobody to “legally” make them dismantle their bases on the contested islets.
In this way, international “law” has been (since its modern inception in the 16C), aspirational. There’s lots of cajoling going on, and bad press if you break the rules, but not much else. Even the relatively recent development of international criminal courts (starting at Nuremburg in 1946) still have a highly selective impact. As a practical matter, its only losers in war who get tried.
This reveals a fundamental problem with law in the somewhat “anarchic society” of states; it’s highly political and its impact is often a function of power. This has been illustrated by historians working with the development of international law across the past five centuries. What we call international law is almost exclusively the product of a small group of European thinkers who were trying, in the context of Christian Europe, to defend “civilization,” and promote rules of behavior which they wanted countries to adhere. They had no power, just ideas. Moreover, they wrote their aspirational rules with a bald disregard for those people, countries, and cultures outside of Europe. War and slavery were acceptable, even if “laws of war” were written to try to make it a touch less barbaric. In other words, it was selective, distorted, and used to justify oppressive behavior by Europeans as they bestrode the world.
History, they say, is written by the victors. So, too, is the law; whether domestic or international. That is to say law is a function of power and the most powerful are almost always subject to the least amount of legal constraint. One of the reasons for the relative demise of international law at the broad principled level (as compared to the relatively well-functioning administrative/ regulatory level) is that the most powerful country has fended off its advances. Constraints on US behavior are usually criticized as “political” (a defense which does, in all honesty, have more than a germ of truth); but much of the defense is no more sophisticated than “Don’t gotta, don’t wanna.” China’s refusal to subject itself to the Western-rooted system is similar.
In a world where the US (increasingly baldly) acts based on a worldview based on power and declines to even pay lip service to morality in international affairs, there is less and less reason for the 190+ other countries in the world to act differently. For centuries, international law was at least allowed to be the hypocritical standard of behavior around the world; even that is now in danger.
Some decades ago, I was a big fanboy of international law. In both college and law school, it was a major part of my academic career. I was even a student member of the American Society of International Law and the founding editor of the Michigan Journal of International Law. As a junior lawyer, although I shifted my focus to telecommunications, I continued to work on international telecommunications regulation issues for a while. When I got back to school, I chose to write my dissertation on the history of arbitration: the peaceful settlement of disputes between countries from the late 18C through WWI. I also wrote an article on certain aspects of British treaty practice in Africa in the late 19C.
Of course, during that time—stretching from the 1970s to the 2010s—the nature of international law changed as did the ways in which we study its history. Along the way, I’ve come to take a more critical stance about International Law than I did as a youth. Back then, I subscribed to the idealistic view of international law as a vehicle for incremental global progress towards peace and the rule of law. It was still a work in progress, but progress was being made, both in terms of principles and general adherence as well as of the construction of more extensive sets of rules and regulations governing international trade and other activities. Now I see the later portion as continuing to progress, but the grand vision is looking pretty faded.
One of the essential problems with the general public perception of international law has to do with the word “law.” Most of the time, we think of traffic laws, criminal laws, corporate law, etc. These are all within a domestic context and are enforced by the relevant sovereign government (e.g. Colorado, Canada). This type of law “works” because it is generally accepted by the people subject to it, usually complied with, and enforced by the government through police and courts. It's part of the social contract we have all implicitly signed as members of a particular society. In this context, it’s OK that Coloradans drive on the right side of the road and the British drive on the left or that a will in Delaware requires two witnesses, but in the Netherlands, you have to have two witnesses plus a notary. Differences in national rules and behavior are entirely acceptable.
International law, on the other hand, isn’t really “law.” That is to say, there’s nobody to enforce it. Countries (which are the subjects of international law, just like citizens are the subject of Colorado law) haven’t signed any “social contract” by which they agree to accept and abide by the rules enacted by the UN or WTO or similar groups. Even if a country signs a treaty, there’s nobody to enforce it once it’s breached. For example, a few years ago, the International Court of Justice ruled that China’s claim of control over much of the South China Sea was unfounded. Now, China had signed the ICJ’s underlying treaty, but there’s nobody to “legally” make them dismantle their bases on the contested islets.
In this way, international “law” has been (since its modern inception in the 16C), aspirational. There’s lots of cajoling going on, and bad press if you break the rules, but not much else. Even the relatively recent development of international criminal courts (starting at Nuremburg in 1946) still have a highly selective impact. As a practical matter, its only losers in war who get tried.
This reveals a fundamental problem with law in the somewhat “anarchic society” of states; it’s highly political and its impact is often a function of power. This has been illustrated by historians working with the development of international law across the past five centuries. What we call international law is almost exclusively the product of a small group of European thinkers who were trying, in the context of Christian Europe, to defend “civilization,” and promote rules of behavior which they wanted countries to adhere. They had no power, just ideas. Moreover, they wrote their aspirational rules with a bald disregard for those people, countries, and cultures outside of Europe. War and slavery were acceptable, even if “laws of war” were written to try to make it a touch less barbaric. In other words, it was selective, distorted, and used to justify oppressive behavior by Europeans as they bestrode the world.
History, they say, is written by the victors. So, too, is the law; whether domestic or international. That is to say law is a function of power and the most powerful are almost always subject to the least amount of legal constraint. One of the reasons for the relative demise of international law at the broad principled level (as compared to the relatively well-functioning administrative/ regulatory level) is that the most powerful country has fended off its advances. Constraints on US behavior are usually criticized as “political” (a defense which does, in all honesty, have more than a germ of truth); but much of the defense is no more sophisticated than “Don’t gotta, don’t wanna.” China’s refusal to subject itself to the Western-rooted system is similar.
In a world where the US (increasingly baldly) acts based on a worldview based on power and declines to even pay lip service to morality in international affairs, there is less and less reason for the 190+ other countries in the world to act differently. For centuries, international law was at least allowed to be the hypocritical standard of behavior around the world; even that is now in danger.
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