Sunday, October 11, 2009

International Law and the Double Standard

A common criticism of international law -- both existing law and potential law -- is that states have their own interests and will only comply with or form new law when it aligns with those interests. Recently, Eric Posner argued this on Foreign Policy. Putting aside his weak contention that President Obama has been as equally loathsome of international law as President G.W. Bush, Posner's main theme is that countries' interests don't align enough to make international law worthwhile.

The problem with this argument is that it is being applied selectively to international law -- it's a double standard. In domestic politics, every individual citizen has their own interests. That is a given. In representative democracies, like the United States or most any other democratic country, congresspeople or parliamentarians have very distinct interests (that may or may not represent their constituents). But scholars and commentators don't disparage democracies because various people or politicians have interests. To have interests is derived directly from having needs, and to have needs means you're alive.

So, the argument that "unaligned interests makes cooperation hopeless" is absurd. If this were true, then we ought to all give up on any form of society or government.

The primary difference between international and national law is enforcement, not interests. While in the US, for example, an individual can be arrested and convicted for murder, there are no world police (technically speaking). And mechanisms like the United Nations Security Council or the International Criminal Court are hampered by a lack of strong enforcement mechanisms. (The ICC has been struggling recently to stay above water in this respect.)

But the lack of international enforcement is a choice and, perhaps, rather natural. International law is, historically, still in its nascency. The first attempt at truly global law didn't begin until the attempts at forming the League of Nations in 1916, so in this sense, international law hasn't even hit the century mark.

Compare this to the European Union. The Treaty of Westphalia, signed in 1648, was the initial attempt at Europe's first security-based international system of law. It was a full 344 years before the European Union -- states linked by domestically enforceable law -- was formed through the Treaty of Maastricht. And even now, there is no single EU military or police force. Each state's police force within the EU must, under law, uphold EU regulations.

The world is composed of many more individuals and states, so it seems predictable that the development of an international legal system should take so long.

Ironically, Posner makes a key observation in the development of effective international law: "International law is only as strong as the states with an interest in upholding it." Precisely. America's domestic system of law is upheld, at base, because the individuals and entities in that system consent to it. Americans each have an interest in social order, lest chaos abound. Likewise, international law makes the world more efficient, predictable, and (in the long run) safer.

Given so many disparate interests, we're unlikely to see a world government in our lifetimes. But today's arguments over international law may seem laughable in 2200 -- like arguments in 1733 over a religious-refugee-founded, world-dominating union of fifty states spanning the North American continent seem today.

Monday, October 5, 2009

Peace in the Taiwan Strait?

Since President Ma took office in Taiwan last March, the relationship between China and Taiwan has improved rapidly. The two governments have concluded multiple agreements on trade, travel, and finance. And an impending Taiwan-China free trade agreement (FTA) -- called the Economic Cooperation Framework Agreement -- could link the two entities irreversibly.

In fact, relations have warmed sufficiently, it seems, to merit some sort of punditry tipping point. Some are beginning to talk about the consequences of a Taiwan-China peace agreement for East Asia and the US. But one piece in particular, written by Philip Saunders and Scott Kastner, is notable for its clear-minded analysis on what a peace deal across the Strait might look like and, further, what it might do to affect other political calculations in the region.

In short, a true peace agreement -- in the sense of unification -- is far off. The Taiwanese political climate is not prepared for such a step. But, as Saunders and Kastner point out, "an interim peace agreement -- trading a Taiwanese commitment not to move toward independence for a Chinese commitment not to use force -- seems increasingly possible."

This is a confidence-building measure (CBM) proposal, and I would suggest reading the full article for the details. My general take is that it is not only an opportune time for such an agreement, but it is also a necessary agreement. First, any deep step toward unification is going to require baby steps that prepare both the Chinese and the Taiwanese for the idea of being more integrated economically and politically. Second, and more importantly, Taiwan needs this FTA with China. If Taiwan holds off much longer on economic integration with East Asia, then it will lose a significant amount of jobs and investment in the next decade as these travel to countries in the East Asian bloc, like Thailand or Vietnam.

There is only one argument the authors make with which I disagree. They rightly mention that for unification to ever be a real prospect, the divergent identities of Taiwanese and Chinese people need to be addressed. In other words, people on both sides need to get comfortable enough with one another to be able to see themselves as "one" national people. Here's what the article says:

"A peace agreement might help address this issue through the exchange of 'identity goods,' measures that allow one side the chance to influence the other side's perception of national identity. Expanded media, educational, and people-to-people exchanges could give Beijing a chance to persuade people on Taiwan about the benefits of unification, and allow Taiwan a chance to press for greater openness and political changes in China that would make unification more attractive."

I think the final phrase here is unrealistic. Without a drastic change in the domestic political climate of China, there is little to no chance that the Communist Party (CCP) would allow Taiwan or Taiwanese people to press for more political openness in China. At this point, it won't even allow its own people to flirt with such propositions, so why would the authors think that the CCP would permit the Taiwanese -- the people of its "rogue province" -- to press for a more liberal political system?

Putting this criticism aside, I think Saunders and Kastner have it right on expanding educational and people-to-people exchanges. As is usually the case, the potential for great change lies in the perspective of new generations. As young Taiwanese and Chinese come to know and accept each other, the "otherness" of their parents' generation will no longer make sense to them. It is these young people that will one day shake hands and say, "peace".