International Law

In Oona Hathaway’s essay on humanitarian law, she suggests that one of the main reason states comply with international laws is due to fear of reprisal. These states worry that if they do not comply they will either be punished or have their international reputation ruined. She also states that many of the states that ratified humanitarian laws, like those condemning genocide and torture, have continued to use those practices on their people. She uses these examples to show how international law is neither perfect nor unnecessary or unproductive. She argues that in order for international law to be effective we must move on from the idea of international law being all or nothing. We cannot expect it to be perfect and always one hundred percent effective, nor can we claim that it does not have its place.

Jed Rubenfeld writes, “The irony is that America is the world’s greatest champion of internationalism in economic affairs” (34).  But the irony can be resolved by the economic effects of the Washington Consensus.  What was once the Western sphere of influence has expanded across the globe, especially after the dissolution of the Soviet Union.  Many multi-national corporations are based in the United States, and, by the same token, many companies which started in the United States have acted around the world.   And the Washington Consensus would certainly promote not just free markets, but also free-market activity by economic actors at both national and international levels.

In America’s case, she started an emphasis on international trade from the beginning of her existence.  She was never an isolationist nation in terms of trade.  Alliances do not need to be “entangling” to be in force and of benefit for all parties.  So that is somewhat a moot point if we wish to speak of true isolationism, like Japan prior to the Meiji Restoration.

In the last DRW reading, I thought that both the proponents and critics of the effectiveness of international law presented valid arguments. I felt that the analogy by Egyptian law professor Boutros-Ghali calling international law the common language of humanity was interesting but also has some implications. It is true that the international legal arena is one where all countries of the world can participate, but going along with the language analogy, it seems that there are many different dialectics of this universal language (shown by the various disagreements regarding the interpretation of international law).

As Henkin notes, that there is no real way to force or ensure compliance among states. However, I think that where international law (as well as some tort/criminal law) really matters is when states are making decisions on the margin. It is the deciding factor about whether or not a state will go through with an action that they are on the edge about. The presence of international law and threat of retaliatory sanctions is likely to often guide states towards making the “better” decision.

Jed Rubenfeld’s article on the differences in European and American views on International Law provides an insight into the possible conflicts of the possibility of a world government. How other emerging countries such as China, Brazil or India look at the international regime will not only be based on which side do they favor, but also their own unique interpretations based on their historical and cultural backgrounds. How countries treat international law system will be the key to the success or failure of the current regime. It is only through resolving this differences in perspectives can a true world government be able to emerge.

Rubenfeld makes a point during his first section concerning ‘The Two World Orders’ that, “there’s no necessary conflict between democracy and the ideal of a world government. A world government could be perfectly democratic-if there were world democracy. But at present, there is no world democracy, and, as a consequence, international governance organizations are, at present, necessarily and irremediably antidemocratic” (11). I think this logic leads to a loophole about the efficacy of international law.. IL can only be completely accepted if it is established as a democratic process, but because there is no world democracy, international law cannot be determined to be democratic? If it is a valid point, where are we expected to go from here? And, in light of this particular article, is it America that is pushing for the establishment of a democratic system when there might be other options that could serve the international community just as well? I think this article brings up many important aspects of America’s reluctance and inability to fully participate in or contribute successfully to international law.

The value and validity of international law is constantly put into question. The UN was established to promote peace and protect human dignity. Former UN Secretary General Bourtros-Ghali stated, “International law has helped both to create our vision of progress and give that vision substance” (Dunoff 987). However, some disagree with the role international law plays in domestic decisions. Charles Krauthammer explains his position in his piece, ‘The curse of legalism: International law? It’s purely advisory.’ He argues that international law is purely advisory and therefore foreign policy is ‘best made without it.’ (985). He stresses the fact that leaders will do as they please in their own nations because there is no incentive to be deterred from doing otherwise. An example of this would be genocides such as those seen in Bosnia and Rwanda.

While this is a reasonable point, H.L.A Hart makes an excellent counter argument in his piece, ‘The Concept of Law.’ In it, Hart explains that in saying that international law is not binding due to its lack of concrete enforcement mechanisms, one is inferring that it is not obligatory because it is not ‘backed by threats’ (986). Some forms of international law are supported by codified forms of punishment. However, others are not. For example, some countries might adhere to international law due to the importance of customary law. Krauthammer does not consider how it influences leaders to act a coordinately. Furthermore, it is key to note that Krauthammer’s piece was written in 1989. The overall importance of international law has significantly grown since then. In today’s day and age, it is impossible to say that foreign policy is best made without international age. The rapid growth of globalization has made the world more interconnected than ever. If a country breaks international law, there might not be repercussions under the letter of the law. Unless it is a grave infraction, such as a human rights violation concerning crimes against humanity or genocide, the UN is not likely to intervene. Regardless of UN intervention, other countries might take it among themselves to try to deter another country from wrongdoing or continuous violation of international law. An example would be an embargo. Whether or not a country respects international law, there can be the consequences of breaking it (988).

After revising how the current international system was framed in 1945, Thomas G. Weiss highlighted in 2009 the necessity of a “far-sighted political commitment… where leaders are more concerned about the future of humanity than the outcome of the next election.” He believed in the possibility, during a supposed Obama´s second term, of an increased integration of the nations of the world that, at least, took the form of a “more perfect union”, a federal union, similar to that carried out by the thirteen American colonies in 1787.

I think such a shift in the international organization of states is not achievable during the rest of the second term of Obama. The current conflict in Syria, in my opinion, clearly depicts the position of the United States of seeking its self-interest and the inability of the UN to come up with a strong resolution committed to intervene in Syria and stop the use of chemical weapons by the Syrian regime. Obama, maybe fearing another Iraq (where no WMD were found) or, even worse, a loss of credibility provoked by a possible unsuccessful intervention in Syria, is clearly reluctant to American military intervention, even when there is strong evidence supporting the use of such weapons. On the one side, Obama affirms that the use of chemical weapons would cross a “red line” and, on the other side, he delays taking a firm position by saying that “we have to act prudently.” It seems that great powers, especially those members of the UN Security Council, are not willing to “give up something in order to get something” as Weiss deems necessary for a third generation of international organizations, at least not in relation to violent conflicts. This makes a shift in the international system difficult to achieve

Perhaps the most likely outcome of the unified diplomatic activity that African states exhibit on the world stage is that disputes between African nations will soon be decided by continental or regional authorities. If African states are less likely to go head to head in the World Trade Organization dispute mechanism, for instance, then it would appear likely that the African Union (or similar body) will set up a regional trade organization or court to cover the gap.

It seems that cooperation between African peoples is more likely than cooperation between African states with stable bureaucratic structures.  Nyerere, after Tanzania’s independence, advocated for the incorporation of a program called ujaama, of which many of its principles are rooted in pre-colonial African traditions.  Despite recent technological and economic developments in some parts of Africa, the village is very much a part of pan-African cultural heritage. Thus, African nations may constitute weaker states through the Western lens, or even the Westphalian model.  So we must assume some sort of variance in the states’ economic models when comparing their relative strengths.

Nevertheless, I am sure that there have been pan-Africa movements and efforts to create some sort of “Africazone,” as a previous blogger defined it.  And given the importance of local communities over nationalist factors, the Africazone may be more stable than the Eurozone.  After all, it is Africa’s states who have sought more development on the international scale through formal supranational organizations, and that focus may be honed through such efforts.

In discussing the dispute over pharmaceutical intellectual property rights, the chapter notes that the efforts of African nations were successful due to their ability to formulate a strong coalition that was effective in the singular institutional framework within which it was operating. The fact that their success was so resounding has also been noted by other posts on this blog, which begs an interesting question. Are coalitions the way to go looking ahead for instituting broader changes in international law?

While it logically follows that a strong alliance can achieve its goals more easily than a bunch of disorganized independent actors, it should be noted that the African countries in this case were so successful because they were able to confine the action to one arena. In other areas of international law, of course, there are many different institutions and organizations that can take action, such as in the areas of economics and national security. This keeps effective coalitions from forming since it allows for the cross-cutting of interests across many different areas. Would it make sense, then, to attempt and formulate more wide-ranging umbrella organizations for various interest areas? The EU and EEC might provide a model for how to do this in terms of economics, as they’ve demonstrated that it’s possible for multiple states to come together and regard their interests as broadly aligned. In addition, the current tumult facing this community due to the banking crisis it’s currently enduring can also be instructive, and could provide a blueprint for either how such organizations can endure internal crises or how best to avoid such a situation ever coming about should it lead to the organization being dismantled.