Monday, July 23, 2018
Elder of Ziyon
Continuing the discussion
from last time, until very recently, “international law” consisted
of agreements such as treaties, alliances and trade deals negotiated between individual
nations to cease hostilities, form alliances, or define political and economic
spheres of influence. While “nations”
might refer to tiny city states of a few hundred thousand people or empires
ruling millions, the treaty – a binding contract between the specific parties to
the contract – was the cornerstone of internationalism.
While some broader “internationalist” principles such as diplomatic
immunity evolved over time, these were primarily means to facilitate, rather
than transcend, inter-state communication and negotiation. The notion that there might exist a distinct body
of law that bound all nations, and institutions separate from and above nation
states (other than empires) that could interpret and possibly enforce such law
on a global basis, is a very modern concept.
With the emergence of the nation state (itself a recent phenomenon),
political activities - including war - primarily took place between countries. And as new weapons and ways of waging war
entered national arsenals thanks to the industrial revolution, these
inter-state wars became particularly brutal.
It was after what people felt was the most brutal war that could ever
take place, World War I - “The War to End All Wars,” that the notion of an
international organization that all nations would defer to - a League of
Nations - was born.
This first attempt to lay the foundations for a broader international
order was based on the assumption that no nation wanted to go through anything
like the First World War again, and thus national interests and international
interests would forevermore be in aligned with the goal of preventing such a
war. All that was needed was an
institution to facilitate communication, interpret emerging “international law”
that transcended the laws of nation states, and work together as a global
alliance to ensure the peace was kept.
There are a number of reasons why this experiment failed its first test:
the challenge of an emerging Fascism which led to World War II, but at its core
the assumption that national interests and international ones would naturally
fall into alignment was at best utopian, at worst delusional. For once a nation capable of projecting power
and mobilizing international diplomacy towards its own ends emerged, what was
to stop it from making demands on the new international order, rather than accepting
dictates from it?
After World War II, a new international peace-keeping organization –
the United Nations – was created. And
since the fall of the Soviet Union, hundreds, if not thousands, of
non-governmental organizations (NGOs) have emerged, many of them dedicated to
laying the foundation to a new set of rules – a
new truly international law –
that will bind all states to behave in ways that do not disrupt global peace,
prosperity and progress.
We’ll dive more deeply to the glass-half-empty side of this development
next time, but even if you consider this trend to be all for the best, this
newly emerging international law runs into an immediate problem in that it does
not rest on the two pillars discussed previously that undergird the successful
legal systems you find within nation states: consent and enforcement.
Like treaties negotiated between states, membership in international
organizations is not derived from the consent of the governed, but by the
decisions of national leaders to negotiate a treaty or join an alliance. And while one can claim that elected leaders are
empowered to make such decisions on behalf of the governed, most nations - including
most nations in the UN and other international bodies - are not democracies
which means that decisions to participate - and how to participate - in
international institutions are being made by an unelected individual or a
ruling elite.
Regarding enforcement, even the largest and most powerful international
agency, the United Nations, has virtually no military power of its own and must
call upon nation states, which still remain the only actors able to exercise
and project power, to volunteer to implement UN mandates. In theory, it does this by moral suasion: by
convincing “members of the international community” (i.e., nation states) to
demonstrate their commitment to global stability by providing the manpower and
resources needed to keep the peace and prevent war and genocide.
Glancing through the last few decades, one can make an argument that
this system has been effective with UN-initiated action stopping a Communist
takeover of Korea or an Iraqi takeover of Kuwait, and UN peace-keepers deployed
to separate warring parties in places like Yugoslavia. But if you look a bit closer at each of these
examples, enforcement of UN-interpreted international law only seems to have
taken place when it was in the interest of a nation or set of nations to do so.
It was in the interest of the US and its allies to prevent Communist
encroachment in Asia, just as it was in the interest of the US, Europe and many
Middle East states to prevent Saddam Hussein from adding oil-rich Kuwait to his
dominion. And thus the inviolability of
national borders was enforced in the case of the 1991 Gulf War, even though
this principle was not enforced, or even invoked, when powerful nations such as
the US, USSR and China penetrated borders in placed like Panama, Hungary and
Tibet.
Similarly, ending genocide on the European continent was in European
interests, and thus the UN intervened in Yugoslavia but only stood by
impotently as Rwanda descended into murderous chaos.
Some people have noted that the emergence of a global legal system is
bound to encounter growing pains, but that it must be supported and nurtured if
we are to ever evolve away from a system where only nation states get to call
(and fire) the shots.
This is a fair argument, but if and only if those who make it are
willing to answer - or at least ask themselves - the key question of what is to
prevent an international order that is not based on consent or enforcement from
becoming dominated by the very state actors they are meant to impartially judge,
limit or control?
To be continued…
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