All The More Reason

What is the point of international law?
June 22, 2006, 12:34 pm
Filed under: Uncategorized

John Stuart Mill writes very well about the dangers of received wisdom. For Mill, a free market in ideas was essential, lest everyday discourse descend to the level of the banal and hackneyed. ‘The general or prevailing opinion on any subject is rarely or never the whole truth’. Mill writes in On Liberty, ‘it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.’

The currency used in this free market though can often be tarnished by resort to cliche and barely thought through soundbites. It is almost impossible to have a conversation about Iraq, for example, without these rhetorical shortcuts cropping up in the conversation.

One particularly smug placard-hogger at the time of the war was the phrase ‘No War for Oil’. Simply asking, ‘Why not?’, would usually be enough to expose the placard holder’s knowledge of world oil markets. Like the many headed Hydra, another set of half-baked memes would suddenly pop up: ‘plunder’…’imperialism’…’Chomsky’…’Haliburton’. Anyone playing buzzword bingo would have a full house in no time.

The most frequently uttered maxim of the anti-war movement though was, and still is, that the intervention in Iraq was ‘illegal’. Again, taxing supplementary questions, such as, ‘Why was that then?’ would usually uncover a rather scant knowledge of the issues at hand. For people who claimed to care so much about international law, the proponents of these stunningly original insights often seemed to know surprisingly little about it.

In a way though, the slack-jawed placard-istas are not the people one ought to be worried about. Most of them would have been exercised about The Evils of Globalization (TM) a few years ago (whatever happened, I wonder, to ‘The Wombles’?), and will be swept away by the current of whichever cause becomes fashionable in the next few years. Of most concern are those who do understand international law, but still cling to a dangerously conservative conception of how the international community should operate.

International law does not exist as a free-standing body of rules. It is a constantly evolving mass of doctrine and custom, shaped by the actions of its participants. In (say) 1923, the idea that the ‘international community’ (such as it was) should intervene in another state’s affairs without there being a direct self-interest in doing so would have been met with a certain amount of incredulity. State sovereignty reigned supreme and any violation of this principle was ‘illegal’. Looking back at Abyssinia, Manchuria and so on, one sees the concept of international law being used as a cloak to disguise cringingly ineffectual foreign policy.

The birth of the UN should have overcome this anomaly, but its institutions have also been used as a shield for these conceptions of international law. It is true that the UN Charter was established to ‘maintain international peace and security’ and to ensure the ‘surpression of acts of aggression’. How could its aims be otherwise in the wake of the bloodiest war in human history? This is not to say, however, that the UN should be a pacifist organisation. It should use its good offices to achieve peaceful, diplomatic solutions, but should these attempts fail (and a brief glance at recent history will reveal that they often do) it must be prepared to use force.

It is depressing that so many people find it impossible to carry through the argument to this fairly obvious conclusion. To characterise the inviolability of state sovereignty as the be-all and end-all of international law is not only undesirable, but involves a woeful, and perhaps willful, misunderstanding of the UN Charter’s evolving interpretation. The maintenance of international peace and security is more complex than simply preventing State X from launching an attack on State Y. Indeed, it may sometimes require the use of force, especially when states feel that they can violate the human rights of their own people with impunity. This should not be shocking. It has been an established rule of law ever since 1948 when the Genocide Convention was ratified, and has continued to apply (albeit inadequately) in the context of the former Yugoslavia and Rwanda.

Kofi Annan recently wrote of the emergence of a ‘duty to protect’ in international law. Where states are ‘unwilling’ or ‘unable’ to protect their citizens from harm, it should be the duty of the international community to step in and do so. Overcoming this mental barrier is the key to creating a truly progressive body of international law. The UN Charter itself states that the United Nations should promote ‘respect for human rights’. This should be a duty, not a mere aspiration.

This may be where we reach a fork in the argument. If one accepts that there are such things as ‘universal’ human rights, then the logical corollary is that there should be some means by which these rights can be enforced. If this fundamental precept is not accepted, the conversation is over before it has begun. Resort to moral and cultural relativism is too often used by repressive regimes as a self-serving justification for their crimes. Sadly, the ‘inviolable sovereign’ argument serves a similar purpose. International law can change, and can change the world for the better. Unless put to the dialectical sword, it risks becoming so much dead dogma; and the UN risks becoming a patsy for gangsters and murderers masquerading as ‘governments’.

Michael P


1 Comment so far
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hmmmm…very interesting!
Thanks google

Comment by gura

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