2010/09/27

The (anglophone?) disrespect for international law

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[...] Thats before we discuss that war crimes dont apply to winners, only losers, the UK could happily throw biological weapons at Bolivia and broadcast footage of its soldiers gang raping children and the world would send us a letter asking us to be nice but being clear that there would be no action beyond further letter writing.

This recent comment (on another blog) is a perfect example for the disrespect for international law (IL) which I only seem to encounter in English communication. I'm not sure that it's an anglophone issue, but it sure looks to me like one.

Maybe it's the veto power in the UNSC that corrupts the trust in international law to such a degree. If you can make a mockery of a rule, why should you take it seriously?

International law as we know it is largely an invention of the late 19th century when European nation states agreed on conventions. The naval arms race of 1898-1916 and the near-bankruptcy of several nations after the First World War led to some early arms control treaties. The near-civilisation-breaking experience of the First World War also led to the first general ban on wars of aggression and the League of Nations attempt at uniting the nations in peaceful co-existence.
All readers do most likely know the United Nations (and its charter) which were created in consequence of WW2 and some later elements of international law.

The purpose of international law, international treaties is almost exclusively to improve our ability to live in peace and some degree of fairness. This is quite noble and its ability to attract contempt is not obvious.

This cooperation-oriented approach failed to prevent WW2, but so did the large military establishments. It's not obvious why exactly the cooperation-oriented approach should be believed to be a failure.

I may be biased because of my German background. Germany places great emphasis on multinational cooperation and very little on overpowering strength nowadays. I can attest that this approach works better for us than my grandparents' and grand-grandparents' generation's approaches. Their approaches included attempts at the application of overpowering strength.

The cooperative approach also seems to work better for most small nations, which now often have the same weight of vote as larger ones and the ability to abstain from a project.

In the end, only some great powers might think that a rule of force approach is more favourable than a cooperative approach to foreign affairs. Yet, even they follow routinely the cooperative approach and invoke rule of force only in exceptions, shielded by their UNSC veto rights. In other words, their policies are hypocritical.

This leads to the next question. Is there really no effective sanction for (winner's) crimes against international law for great powers?
Well, there's obviously not going to be some sort of embargo or outlaw status for that kind of guilty country as it happened to Iraq in 1990.

Is this everything we should consider?

Certainly not. Maybe I'm insulting here, but I think that only primitive minds could fail to see beyond such superficialities. Nobody is going rape someone else, get away with it in court and not feel any repercussions.

What do you think why exactly the U.S. foreign policy and the Russian foreign policies are such a mess, with strings of failures to influence other nations during the last ten years?
Why exactly is the economy suffering, tourism dropping, why are travellers facing problems in many countries? I met many American businessmen and representatives on conferences and most if not all of them made sure that everyone knew they were not supporting their countries' foreign policy. They were clearly fearing repercussions, albeit certainly not from the UNSC.
Let's not forget the role of aggressions in Al Qaida propaganda and motivation. It's much easier to paint some power as evil if it does evil things. I know that the idea that the AQ mess is not self-inflicted is quite popular in the U.S., but I can affirm that this idea is quite widespread if not dominant elsewhere. The AQ mess is not a direct consequence of a breach of IL alone, but it's an example about how backlash may work even without losing in the UNSC.

Finally, there's such a thing as "reputation" in foreign policy. It's - to use a nice word - optimistic to expect others to fulfil treaty obligations that benefit you if you break treaties at will, guided by self-interest. The opportunity costs of IL violations are certainly impressive.


Yet, even IF there were no sanctions in IL because no enforcement mechanism is effective: Would this turn IL into something that should be despised and ignored?

I strongly suggest you think twice here if you thought "yes", because there's a huge catch!

International law is not just international law. Signed and ratified treaties usually become national law as well. Those people who despise international law because they see no enforcement would need to despise their national rule of law as well for the very same reason. hands up - who wants to live in a nation without the rule of law?

The Kellogg-Briand Pact - as old and as often violated as it is - is still in force as a federal law in the U.S., for example. The case is very complicated for the UK because of its strange constitution-free legal system, but the case is very clear in regard to the U.S.:
Article Six of the United States Constitution clearly declares treaties such as the Kellogg-Briand Pact, the Charter of the United Nations and the North Atlantic Treaty to be "supreme Law of the Land".

Quote Article 6 of the U.S. constitution, with my emphasis:

[...] This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [...]


In other words: Every bit of cruise missile diplomacy and every bit of war of aggression - even preparation or threat of the same - turns a U.S. President into a law-breaker. He's just not being convicted, the law is just not being enforced. Actually, the order to kill humans in an illegal war is incitement to mass murder because no illegal war can provide legality for such a demand.

Now I ask my belligerent American friends: Does this mean that the U.S. constitution is a piece of crap, to be despised, ineffectual, a wrong approach, to be ignored at will?

The Article 6 issue also counters another extremely popular assertion in regard to the asserted rule of force over the rule of (international) law: This is the assertion that the U.S. constitution is ranked higher than IL and thus the U.S. can do in international affairs whatever it wants. Seriously, that's an argument which I've faced more than a dozen times already from different people. It seems to be deeply embedded in a general, yet very U.S.-specific fear of "world government" which seems to border on paranoia in many cases.

It's of course irrelevant whether IL or the constitution are higher ranked if both agree with each other anyways!

Wars of aggression have been outlawed in international law and in most national law systems. Those who argue in favour of wars of aggression (veiled in misinterpretations of resolutions or not) are the outlaws - warmongers in pursuit of criminal aims. These people are to me pretty much on the same level as mass murderers.
I think I made my opinion clear enough, and you can clearly read here where this opinion stems from.


I cannot stand the opportunism, in-consequence, disdainfulness, hypocrisy, disrespect and  mass murder intentions of those who believe that International law is de facto not in effect and not to be observed and that wars can be waged at will as long as you "win" and are covered by a UNSC veto.

Their stance is not only fantasy, but outright stupid and short-sighted. Policies which follow such thoughts harm their own country, in addition to even greater harm to foreign people.


Sven Ortmann
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21 comments:

  1. Sven,

    It's as simple as this: The specific powers granted to the three branches of government in the US Constitution cannot be amended by a treaty. The word "supreme" in article six does not supersede that - it's there to ensure that treaty obligations are meant to apply to US states which, at the time the Constitution was written, were independent and sovereign states. Nothing more.

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  2. The legislative has the power to declare war (meant as to 'decide about war or peace' at the time of writing) and the power of legislation.
    It used the latter power to restrict itself in its exercise of the former power.
    That's a perfectly fine legal update.

    Likewise, even if one thinks that the president has the constitutional power to decide about war and peace, a former president restricted their exercise of this power and the later ones did not move to cancel this restriction. Again, a perfectly fine self-restraint.

    There's no conflict nor an overriding argument visible to me.

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  3. Disrespect? I hold the concept in utter contempt.
    If you put a crown on a Donkey and called it Ceaser, should we bow?
    Respect must be earnt.

    But thats all beyond the point, I wasnt making a moral statement, I was making a factual one.
    Go back and read my comment.
    Is your problem that you find it moraly repugnant, or that you find it factualy incorrect.

    "Maybe it's the veto power in the UNSC that corrupts the trust in international law to such a degree. If you can make a mockery of a rule, why should you take it seriously?"
    Its not just the Veto, that again, is worthless, Russia could legaly Veto a "just UN war" and the US could do it unilateraly anyway, or Russia could Veto an unjust action and the US could do it anyway.

    "The purpose of international law, international treaties is almost exclusively to improve our ability to live in peace and some degree of fairness. This is quite noble and its ability to attract contempt is not obvious."
    And all tryranies are justified in the same manner.
    The Communist Regimes of the Soviet Union, China and The Khemer Rouge, by far the biggest mass murderers in history (dependant on scale used) all justified themselves in such lofty terms.

    "This cooperation-oriented approach failed to prevent WW2, but so did the large military establishments. It's not obvious why exactly the cooperation-oriented approach should be believed to be a failure."
    BECAUSE IT DOESNT WORK
    I am bound by the laws of the UK because the UK will beat me into submission if I disobey those laws.
    The UK is not bound by the laws of the International Community because the International lacks both the will and the capability to enforce the laws it passes.

    You make a semi valid point about international relations, but is that really what people mean when they talk about law?
    Iraq invaded Kuwait and suffered an invasion, over a decade of punishing sanctions and a second invasion.
    The US invaded Iraq and suffered a fall in tourism income.
    And you wonder why I despise your law?
    How can you not!

    "who wants to live in a nation without the rule of law?"
    I live in Gunchester, the police give out crime numbers incase you need to claim on your insurance, no use for much else.
    That said, when they try, they only get told off, recently for chasing someone who stole a motorbike, he didnt wear a helmet so it was dangerous....

    But, regardless, as you say, despite being part of most national law, its freely violated.

    "I cannot stand the opportunism, in-consequence, disdainfulness, hypocrisy, disrespect and mass murder intentions of those who believe that International law is de facto not in effect and not to be observed and that wars can be waged at will as long as you "win" "
    But we're right.
    You can hate it, you can think its immoral, you can think the world would be better if it were different.
    But the fact remains, it is not different.
    You can do whatever you want, as long as theres no one bigger prepared to stop you.

    Hate it.
    Hate Gravity.
    Doesnt change it.

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  4. Sven,

    No, the Congress cannot amend or limit it's own constitutional authority with legislation. A Congress may try to do so, but since the war-making power derives from the Constitution itself and not from a specific legislative act, future Congress's are free to ignore such restrictions. The ability to limit the powers given the respective branches of government is, by design, difficult and limited and are detailed in article V.

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  5. @Ragingtory; you began with a strawman. Yes, if YOU AGREE to call a donkey caesar, then it's appropriate to bow until you cancel your agreement. It was your choice, after all. You committed to treat him as caesar.
    It's childish to believe that one's actions have no consequences and one doesn't need to observe rules.

    Nobody and nothing has ever forced a state to join the Charter of the United Nations, Kellogg-Briand Pact or North Atlantic Treaty. The nations committed themselves and restricted themselves by joining. That has legal consequences, and it has consequences in regard to legitimacy, expectations and reactions to violations.

    You don't seem to understand what" rule of law" means, judged by your comments about the local police.

    @Andy: I read the articles 1, 4 and 5 (relevant to your argument) and there's no such thing. Article 5 is about amendments, not about laws that fit to an amendment that's already in force.
    Also note that the historical wars declared by congress are actually not the subject here. Your line of argumentation pretty much agrees with my about the illegality, even though for different reasons.

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  6. Sven,

    No, I don't think we're in agreement at all. A treaty cannot restrict Congress's defined powers, one of which is the power to declare or authorize war.

    Congress, by definition, cannot do something "illegal" under US law since it is Congress which determines what is legal and what isn't through legislation. Congressional acts can only be found unconstitutional in our system.

    The Constitution, for domestic US law, is supreme. A treaty can no more restrict Congress's power to make war than it can restrict the President's power to veto legislation, or the Judiciary's requirement for jury trials.

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  7. Well, the agreement was of course limited to the necessity of a congressional declaration of war - which wasn't done after WW2.

    I didn't write that a treaty restricts Congress' powers, Congress did. It's somewhat comparable to its procedures which exclude certain legislation practices as well. Congress cannot have an unannounced session in five minutes and have an important vote, for example.

    There are limits on its legislation that go beyond the constitution - self-imposed limits. Such as the ratification of treaties in which congress explicitly and intentionally restricts its own freedom of action.

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  8. Sven,

    On the first point, the Iraq war was declared in the sense that Congress specifically authorized it. Same for Afghanistan, the Persian Gulf war and Vietnam. I think Korea was the only major war since WWII where there wasn't a specific Congressional authorization, though obviously Congress did not oppose it since it funded the conflict.

    On your second point, it's not at all comparable to "procedures which exclude certain legislation practices as well." Congress can change those procedures whenever it wants - it cannot change the Constitution or its enumerated powers. The Constitution, in fact, gives the legislative bodies the authority to make their own rules for how they operate (which is why we have the filibuster in the Senate today).

    There are limits on its legislation that go beyond the constitution - self-imposed limits. Such as the ratification of treaties in which congress explicitly and intentionally restricts its own freedom of action.

    Finally, yes, I'm not arguing that treaties have no meaning or no force at all, nor am I arguing that treaties don't restrict in any way the actions of the US government. What I am saying is that a treaty cannot have the effect of diminishing or altering the enumerated authorities vested in the US Constitution of which one is the power to declare or authorize war. That's a big difference. Hence you see the US has few issues adhering to treaties except where there is a potential conflict with Constitutional powers.

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  9. The power to "fund" a war is the fiscal power. That's a separate power from the power to declare war. Thus, funding can obviously not replace a declaration of war.

    On your second point; exactly. Congress can (possibly with a rather short delay) cancel the membership of the U.S. in those treaties. That's actually quicker than normal for the procedures for the Senate, which for example are only changed every few years when a new senate begins sessions.

    The constitution authorised treaties and grants them the power of a supreme law of the land. The legislative ratifies treaties and thus limits itself (for else the membership would be entirely moot). The power to declare war is not really restricted, because the legislative can leave the international treaties.

    Next time you want to wage a war of aggression leave NATO and UN first, please. That would be the proper national legal approach.

    A treaty in conflict with the constitution would be ineffective from a national point of view and needs to be scrapped by the constitutional court. The constitutional court has afaik never scrapped a treaty with such an argument thus it's safe to assume that the treaties are not in conflict and in effect - entirely. As supreme law of the land.

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  10. Congress could do as you wish (withdrawal from a treaty), but it has no obligation to do so. From the wiki:

    American law is that international accords become part of the body of U.S. federal law.[1] As a result, Congress can modify or repeal treaties by subsequent legislative action, even if this amounts to a violation of the treaty under international law. This was held, for instance, in the Head Money Cases. The most recent changes will be enforced by U.S. courts entirely independent of whether the international community still considers the old treaty obligations binding upon the U.S.[1]

    Additionally, an international accord that is inconsistent with the U.S. Constitution is void under domestic U.S. law, the same as any other federal law in conflict with the Constitution. This principle was most clearly established in the case of Reid v. Covert.[8] The Supreme Court could rule an Article II treaty provision to be unconstitutional and void under domestic law, although it has not yet done so.


    Congress makes contradictory statutes with regularity actually.

    Finally, your comment on "war of aggression" demonstrates just how hollow most IL really is. There are many who believe the Iraq war violated the UN Charter but there are also many who believe it didn't. In such an interpretive dispute, who is the final arbiter? There is none - there is only what individual sovereign states choose to enforce. Even if such a body existed, the US constitution would prevent the US from recognizing its authority.

    At some point, Sven, you simply need to accept that most countries aren't like Germany, don't have the same values that Germans have and will never act like you would like them to act.

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  11. "It's childish to believe that one's actions have no consequences"

    Where did I say that?
    I fully accept cause and effect, but thats not Law.
    Thats politics.
    Was the Arab Oil Embargo to do with "International Reputation" or International Law?

    Also, I think you'll find international law is applied to people who havent signed the relevent treaties.

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  12. I don't know who you got that quote from but I would certainly not follow that view, or advocate it to anyone else, and I say this as someone who continues to disagree with you on the core premise of this post.

    "In the end, only some great powers might think that a rule of force approach is more favourable than a cooperative approach to foreign affairs."

    Maybe it is because great powers have the 'luxury' of considering the legitimacy of action, which is quite a different concept from its legality. Sat on the train with a Professor of International Relations from St Andrews, on his way a conference in Aberystwyth, he was quite clear that it is not a clear cut proposition as international law is ambiguous, and percieved legitimacy has a role that is equally important in many ways when it comes to seeking the acceptance of action from fellow nation states.

    "Yet, even they follow routinely the cooperative approach and invoke rule of force only in exceptions, shielded by their UNSC veto rights."

    You're drawing the wrong conclusion from this; seeking cooperation from other nation-states is a mechanism for more than just material assistance, it is de-facto recognition of the legitimacy of your proposal. But given that legality and legitimacy are up for interpretation Great Powers may seek to act on their own if >they< believe their actions are legitimate/legal.

    "In other words, their policies are hypocritical."

    No in other words; their policies could be hypocritical, but on the other hand as Great Powers they may feel they have an obligation to threaten aggression in order to achieve a greater good for their interests and allies.

    International relations is not the simple and disassociated sand-box you believe it to be.

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  13. Jedi
    Twas I.
    I can only repeat, I am stating a fact.
    If the UK choose to unleash biological weapons against Bolivia and deploy ground forces to abuse children, there is no court capable of enforcing a law to prevent such action.

    Germany could stamp its feet and scream at the top of its lungs that we're very bad little boys and must stop at once.
    But on Svens insistance, it must lack the capability to actualy prevent such an atrocity.

    Now of course, I'm not suggesting the UK should carry such abominable acts, that it would be just if we did.
    I simply said that the UK could if it so wished, and the only way to prevent the UK doing so would be to have the military means and the political will to get physicaly involved.

    The simple fact is, Svens international law would (Does?) treat genocide in China very differently than it treats genocide in Yugoslavia.
    Is that law?
    It sure as hell isnt equality before it.

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  14. "If the UK choose to unleash biological weapons against Bolivia and deploy ground forces to abuse children, there is no court capable of enforcing a law to prevent such action."

    i accept the principle of what you say, but likewise accept your assertion that we would never do so, for such an act would disproportionate to a degree that would damage legality & legitimacy.

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    Replies
    1. No comment on how China & Yugoslavia?

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  15. There is some truth to the argument that war crimes prosecutions are "victors' justice". There is also truth to the argument that justice, in general, is biased against the less powerful, which is why the bankers are not in jail for trashing the world' economy while a mook who robs a bank of $3,000 will go to prison for 15 years.

    Beyond that, though, you might have noticed that very few of the senior members of the Bush Administration have refrained from foreign travel since they left office. I suspect that there is a good reason for that.

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  16. The last paragraph came out 180deg from what I intended. I meant that the former Bushies have not gone abroad for a very good reason (fear of arrest).

    Need coffee.......

    By the way, I can't enter comments with Firefox. I have to launch Opera or Chrome, and it seems to happen only on blogs that use this form of comment engine.

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  17. Wow you always learn something new...

    I would have never thought that a position like: "National Law is above International Law" is acceptable in the UK.
    I assumed some hardliners in US think that way but here in EU? Wow

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  18. Comrade
    Any nation arresting a Bushie would be commiting suicide.
    It would be viewed, rightly, as an act of war against the United States, ie, using force to coerce the government into changing its actions.
    80%+ of Americans dont have passports. That an American doesnt leave the country ever is the norm not the exception.

    Eric P.R.
    I'm not sure why you think Democracy has been extinguished in the EU.
    Lawmakers are elected on the civillised side of the channel, they dont appoint themselves, yet.

    When I'm invited to elect a respresentative to the international legislature, I may value its pronouncements.

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  19. By that logic you should consider the UK prime minister's pronouncements as valueless, because he's only indirectly legitimated by a democratic act - just like the UK delegates at the UN.

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  20. Sven
    I do consider the Monarchal system of Executive Fiat in the UK unjust.

    But, as I said in my first comment
    "I am bound by the laws of the UK because the UK will beat me into submission if I disobey those laws."

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