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.


  1. Nice article Kevin! I think to develop international legal system, legal bodies of different nations should come together and make laws jointly.

  2. Thanks, Houston. By "legal bodies", do you mean parliaments? That is, do you think that national representatives should meet with one another to hash out common law?

    If my understanding is correct, then, in theory, I very much like the idea. It allows individuals to be less-separated from the int'l law that affects them. (Right now, one of the biggest contentions is democratic "deficit", whereby individuals are many times removed from the people who make int'l law.)

    But in its application, national lawmakers meeting to hash out int'l law becomes problematic. First, how do these people make national law and still have time to debate or really think about int'l law? Moreover, how do you get representatives from 200+ entities to communicate effectively? That would be thousands of people.

    Today's general framework of a president or head of state representing the interests of their country seems to be *okay* for now. In many cases, this head of state is an elected representative.

    But the ideal situation might be a "global parliament". This has actually be suggested as a UN General Assembly reform. The idea is to have individual representatives directly chosen by people for an int'l body. The the reform ideas have so many obstacles to overcome among various UN countries. (For example, big countries prefer a size-related representative model like our House of Reps, while smaller countries prefer a Senate-style body.)

    Anyway. As I elude to in the article above, I think that int'l law will continue its long trek toward more enforcement and a broader scope as time continues. Eventually, this will entail a more prestigious and powerful lawmaking body. Whether this can occur in our lifetimes is another matter altogether ...