International Law Reconsidered: Is International Law Actually Law?

The fact that such cornerstones of international law like the Geneva Conventions can be so easily dismissed with no ramifications is deeply troubling, and indicative of the fact that international law is in fact not law, but an expression of states’ will. When a state seeks to achieve a goal that lies outside of what is allowed under international law, it will disregard some or all of its obligations and continue regardless. Had the US openly disregarded the Geneva Conventions and the rest of the international community united against the US in outrage and condemnation, there would exist a strong case for international law to be considered “law.” Unfortunately, this did not happen. The US instead took t is the perfect example of a state “determining the extent and the very existence of iunilateral action to change its obligations to suit its interests from within the system. Its obligation.”34 This move in fact, tarnished the image of the Geneva Conventions and, in raising questions regarding where and when they apply, cheapened Geneva as a whole. Despite a few cries of outrage, and the threat of a Swiss arrest warrant for President Bush under the CAT,35 nothing was done and the violation went unpunished. In a recent reversal, the European Court of Human Rights ruled that five detainees currently held in Great Britain could be extradited to a supermax prison in the United States without violating the EU’s rules and stance against enhanced interrogation and US policy. This ruling is in fact a tacit approval of on the part of the ECHR of US actions.

Despite these violations, why is it that Pinochet was arrested and President Bush was not? The answer lies in the unequal application of international law. In many cases, political and economic power dictate who is innocent when international law is violated. While the United States may find itself before the WTO in a trade dispute or defending against a NAFTA complaint, as hegemon, the US will never have an official or head of state facing charges in the ICC or find itself the subject of a UNSC sanction. The same goes for countries like China and Russia. Despite denunciations of China’s human rights record, neither President Hu Jintao nor any Communist Party official has been called to answer for the alleged crimes. With this unequal application, international law is at best, a set of aspirational guidelines, and at worst a set of impositions by the strong onto the weak. Taken to its logical end, the international system comes to resemble the island of Melos where “the strong do what they will and the weak suffer what they must.”36

The Silver Lining: Realizations for the Future

While the above assessment of international law is admittedly bleak, all is not lost. International law is indeed aspirational, but it is these aspirations that represent the best of humanity. These conventions and treaties may be violated or ignored, but they represent an earnest human desire for a better world. While these desires are not enough for these principles to be considered “law,” they are a starting point. As globalization continues to link us and political, cultural, and economic ties come to line up in the international system, our world will get significantly smaller. With looming resource scarcity, a booming population, unprecedented communication and information sharing tools via the Internet, and an upswing in grassroots political movements, we stand on the event horizon of great change across the world.

To face these changes, whatever they may be, it is imperative for people and states to admit that the current system of international law is not “law” so that we can try to do better. States already recognize that they can ignore their obligations whenever it suits them and this system will certainly fall apart when air pollution becomes a greater concern, precious resources are found in the global commons, etc. Without stronger enforcement mechanisms and a way to create obligations that truly supersede state sovereignty, the international system as we know it will crack under the new stressors. The first step to avoiding this crash is to admit that the system we currently have is not enough.

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The admission that international law is not “law” will certainly send shockwaves through the system, but most arrangements will remain at or near their status quo because many of these systems provide states with benefits they cannot get elsewhere (ie: the reduction of transactions costs, trust in trade, a reduction of uncertainty, etc). Helping international law become “law” is a worthy, if not necessary endeavor over the next decades to help states coordinate to face the impending challenges that will flare up across the world. As economies grow more intertwined, one country’s problem soon becomes everyone’s problem. As such, the processes of globalization are already starting to affect international law in ways that will bring it much closer to the status of “law.” Individuals are being recognized as subjects of international law;37 international law is beginning to deal with more global issues such as the economy, the environment, and humanitarian concerns without the consent of states;38 and international law is exploring new frontiers such as the cyber domain and how technology will impact the international system in the near future.39

In the end, while shocking, the admission that international law is not “law” will allow us to determine why some aspects have failed, which sources and mechanisms should be replaced, and provide the spark for a global movement to build a new, stronger international legal system. The enemy of international law is state sovereignty, and while this cannot be undone any time soon, international law can be stronger than it is today, and should be revamped while we have this unprecedented opportunity.

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References

Austin, John. The Province of Jurisprudence: Determinated by John Austin. Aldershot: Dartmouth, 1998.

Glennon, Michael J. "Sometimes a Great Nation." The Wilson Quarterly 27.4 (2003): 45-49.

Goldsmith, Jack L., and Eric A. Posner. The Limits of International Law. Oxford: Oxford UP, 2005.

Gonzales, Alberto. Memo: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban. US Department of Justice. 1/25/2002.

Hathaway, Oona A 2002 “Do Human Rights Treaties Make a Difference?” The Yale Law Journal 111 ~8.

Henkin, Louis. How Nations Behave: Law and Foreign Policy. New York: Published for the Council on Foreign Relations by Columbia UP, 1979.

International Court of Justice Advisory Opinion: LEGALITY OF THE THREAT OR IJSE OF NUCLEAR WEAPONS July 8, 1996.

Kennan, George F. American Diplomacy. Chicago: University of Chicago, 1984.

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MacAskill, Ewen, and Afua Hirsch. "George Bush Calls off Trip to Switzerland." The Guardian. Guardian News and Media, 02 June 2011.

Megret, Frederic, Globalization and International Law (August 4, 2008). MAX PLANCK ENCYCLOPEDIA OF INTERNATIONAL LAW, Oxford University Press, 2009.

Neumayer, Eric 2005 “Do International Human Rights Treaties Improve Respect for Human Rights?” Journal of Conflict Resolution 49 ~6 Pg. 925–53.

Petallides, Constantine (2012) “The Middle Kingdom's Lighter Touch: Chinese Soft-Power In Africa” Georgetown University Asian Arms Control Project.

Pictet, Jean (1958). Geneva Conventions of 12 August 1949: Commentary. International Committee of the Red Cross.

Posner, Eric A., and Jack Goldsmith. "THE NEW INTERNATIONAL LAW SCHOLARSHIP." Chicago Public Law and Legal Theory Workshop Working Paper No. 126 (2006).

Thucydides, and Rex Warner. History of the Peloponnesian War. Harmondsworth, Eng.: Penguin, 1972.

United Nations Convention Against Torture.

United States Code.

Vreeland, James Raymond. 2008. “Political Institutions and Human Rights: Why Dictatorships enter into the United Nations Convention Against Torture.” International Organization 62 (1):65-101.

Yoo, John. "Terrorists Have No Geneva Rights." Wall Street Journal [New York] 26 May 2004.

Yoo, John. Memo: Standards of Conduct for Interrogation Under 18 USC 2340-2340A. US Department of Justice. 8/1/2002

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Endnotes

1.) Austin, John. The Province of Jurisprudence: Determinated by John Austin. Aldershot: Dartmouth, 1998. Pg. 10

2.) Ibid 11

3.) Ibid 14

4.) Ibid

5.) Ibid 12

6.) Ibid 28

7.) Ibid

8.) Henkin, Louis. How Nations Behave: Law and Foreign Policy. New York: Published for the Council on Foreign Relations by Columbia UP, 1979. Print.

9.) Posner, Eric A., and Jack Goldsmith. "THE NEW INTERNATIONAL LAW SCHOLARSHIP." Chicago Public Law and Legal Theory Workshop Working Paper No. 126 (2006). Pg. 467

10.) Ibid

11.) Ibid 471

12.) Goldsmith, Jack L., and Eric A. Posner. The Limits of International Law. Oxford: Oxford UP, 2005. Pg. 26

13.) International Court of Justice Advisory Opinion: LEGALITY OF THE THREAT OR IJSE OF NUCLEAR WEAPONS July 8, 1996.

14.) Posner, Eric A., and Jack Goldsmith. "THE NEW INTERNATIONAL LAW SCHOLARSHIP." Pg. 467

15.) Kennan, George F. American Diplomacy. Chicago: University of Chicago, 1984. Print.

16.) United Nations Convention Against Torture

17.) Ibid

18.) Ibid

19.) Hathaway, Oona A 2002 “Do Human Rights Treaties Make a Difference?” The Yale Law Journal 111

~8:Pg. 1943

20.) Neumayer, Eric 2005 “Do International Human Rights Treaties Improve Respect for Human Rights?” Journal of Conflict Resolution 49 ~6!:925–53

21.) Vreeland, James Raymond. 2008. “Political Institutions and Human Rights: Why Dictatorships enter into the United Nations Convention Against Torture.” International Organization 62 (1):65-101.

22.) Ibid

23.) Ibid 76

24.) Ibid

25.) Petallides, Constantine (2012) “The Middle Kingdom's Lighter Touch: Chinese Soft-Power In Africa” Georgetown University Asian Arms Control Project

26.) Pictet, Jean (1958). Geneva Conventions of 12 August 1949: Commentary. International Committee of the Red Cross.

27.) Ibid

28.) Yoo, John. "Terrorists Have No Geneva Rights." Wall Street Journal [New York] 26 May 2004. Print.

29.) United States Code

30.) Yoo, John. Memo: Standards of Conduct for Interrogation Under 18 USC 2340-2340A. US Department of Justice. 8/1/2002

31.) Ibid

32.) Gonzales, Alberto. Memo: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban. US Department of Justice. 1/25/2002

33.) Ibid

34.) Glennon, Michael J. "Sometimes a Great Nation." The Wilson Quarterly 27.4 (2003): 45-49. Pg. 46

35.) MacAskill, Ewen, and Afua Hirsch. "George Bush Calls off Trip to Switzerland." The Guardian. Guardian News and Media, 02 June 2011. Web. .

36.) Thucydides, and Rex Warner. History of the Peloponnesian War. Harmondsworth, Eng.: Penguin, 1972.

37.) Megret, Frederic, Globalization and International Law (August 4, 2008). MAX PLANCK ENCYCLOPEDIA OF INTERNATIONAL LAW, Oxford University Press, 2009. Pg. 6

38.) Ibid 8

39.) Ibid 12