International law, in theory and in practice – Asia Times

There is no international law, at least not in the sense in which we understand the term “law” when it is used in common parlance. This point, at least when it is posed with acuity and examined closely, is not a semantic abstraction. The fuzzy idea of ​​international law as it is generally expressed is relevant to the Monroe Doctrine for the United States, the Ukraine War for Russia, and the island of Taiwan for China.

The big question of the day is: does existing international law alone have the power and potential to limit the cost and likelihood of the high level of open violence already seen in Ukraine and possibly emerging in the Strait of Taiwan or even vis-à-vis it? The United States and the drug cartel countries under America’s southern border?

Unfortunately, the most likely answer is most likely No.

Only the highest possible level of diplomatic skill, innovation and – alas, the most difficult of all things possible or likely to be expected – a significant degree of great power self-discipline can give the world hope for happy ending to these hotspot issues.

The elements of law

Law, when the idea is used at the national level, within a sovereign state, has at least three essential elements. (I am not going into the complex idea of ​​justice here.)

First: National laws are created (some would say “discovered” or “discovered”) through a rigorous process involving discussion, consent and enactment involving all or nearly all legal entities that are affected or affected by the law.

Second: Laws, once they exist, are applied to specific cases where the parties to certain interactive discussions need to be guided, advised, directed or obeyed, sometimes involving force.

Third: This force, at least in political systems based on the principle of tripartite governance (legislative, executive and judicial), is exercised by the executive branch.

In systems with a more amorphous structure, the entity that uses force, that has the “police power” (“enforces the law”), is necessary if not always separated from the way in which the rules of political, asocial and economic behavior come into play be or even if and how these laws are known to the entities subject to them.

On the other hand, I examine international law. I do so with my sincere apologies to the great jurist/philosopher Hugo Grotius (1583-1645) who wrote wonderful and compelling books on, among many subjects including cosmology, the (clearly international) law of the open sea as well as defining international laws of war.

He did not write in vain, and if he were still with us, perhaps he would agree with my quibbles. I will twist his notions of natural law and say that nations have a natural tendency to protect their national interests above all else.

The empirical fact that tormented even the great Grotius is that there is not now and never will be an international executive with the power to effectively chastise, control or punish – metaphorically to “put in jail” – Great Men or Great Powers who despise, evade and ignore international laws which conflict with their essential interests.

Fantastical thinkers have suggested that world government is the necessary source of international executive power, strength and influence. We can safely set aside such utopian projects, even if we kindly invite their high-minded authors to leave the room.

Real world apps

In the world of real, practical and empirical law and policy, international law (so called) is a complex amalgamation of habits, traditions, history, national interest and relative power, in particular of military power from competing sovereign nations.

International law sometimes acts as a constraint but more often as a mask to conceal the pursuit of powerful national and private interest, prestige, wealth and influence.

It gives today’s great powers leeway outside of open warfare, and it can sometimes protect lesser powers from excessive depredation of their internationally valuable assets.

International law often takes visible form in the form of international treaties and arrangements such as NATO, China’s Belt and Road system, United Nations, etc.

There are many examples where the national interest dominates treaties, where treaties are a form of international law.

In 1793, George Washington’s Declaration of Neutrality declared that the “interest and duty” of the United States was to remain friendly with England and France, even if they were “belligerent” towards each other. other. He did so despite the existence of the 1778 “mutual aid” treaty between France and the American revolutionary patriots.

As president in 1793, who could not afford to return to war with King George III, he cynically forgot that as a general in 1778 he needed the help of the French navy (under of a treaty), among other things, to defeat the English army at the critical Battle of Yorktown, where the surrendering British army band played a tune called “The World Turned Upside Down”.

How about this example: In 1922, Neville Chamberlain (supposedly) wrote a letter to his wife explaining why England at the time looked the other way while Germany, despite the ban of the Treaty of Versailles, was (already) rearming and rebuilding its army. Chamberlain pointed out that Russia and Germany had been “knocked out” by World War I, but both were “reviving” fairly quickly.

Chamberlain preferred that Russia not being the only one of the two to fully recover. He could then pit them against each other. Alas, he was half too smart.

The Treaty of Nanjing, signed in 1842, ended the First Opium War and ceded sovereignty over Hong Kong Island to Britain “in perpetuity”. Treaty equals international law, right? Yet “perpetuity” ended in 1997 in recognition of the true politics of the altered power relationship between China and the West.

Is it realistic to expect self-control? It is remarkable that China waited from 1949 to 1997 before ending life imprisonment.

Even ideology gives way to national interest. It is possible to believe that China delayed the expulsion of the British from Hong Kong from 1949 to 1997 because the territory’s colonial status allowed for the existence of a pipeline carrying money, technology and opportunity. educational, to exchange between East and West along “secondary channels” despite official ideological barriers (on both sides).

Dealing with hostility

Let us return to the questions of raw violence. It is possible to believe that China, when not provoked by reckless but official American statements that American troops are engaged in the defense of Taiwan, has a national interest in using Taiwan as the same kind of conduit secondary that served so well when Hong Kong was a colony. Tricky ambiguity worked well and should be reinstated.

It is hoped that at some point the sanctions that limit Russia’s ability to finance its military actions in Ukraine will eventually work. Alternatively, or in conjunction with financial pressures, the treaties that now guarantee Russia’s special status at the United Nations could be revoked. Russian diplomats might wake up to find their personal bank accounts blocked.

American bankers might whisper in Mexican ears that it would be easy for them to make it difficult for Mexican expats who are now earning money in the United States to repatriate some of those funds to families back home.

Some of these tricks could be a dirty pool. But such trickery serves everyone’s true national interests better than, say, dirty tactical atomic blasts on the battlefield.

Tom Velk is a libertarian-leaning American economist who writes and lives in Montreal, Canada. He has been a visiting professor at the Board of Governors of the US Federal Reserve, the US Congress and Chair of the North American Studies Program at McGill University and Professor in the Department of Economics at that university.

Sharon D. Cole