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Strengthening International Law
Pattern number within this pattern set:565
Prof. Emeritus Int. Law & Practice, Princeton
In an era when international cooperation is critical (for national, regional, and global security, environmental protection, trade and investment, human rights, tourism, communications, maritime and aerial safety, criminal law enforcement among many issues) no overall reliable system of global governance is in place that enjoys universal respect, and satisfies concerns about accountability of leaders, participation of peoples and their representatives, and transparency of the regulatory process itself. It is no longer suitable to rely on a traditional form of world order based upon the anarchic interplay of sovereign states pursuing their particular short-term interests, with the leading state or states assuming a managerial role for the entire system. Particularly disturbing is the persisting tendency of political leaders to consider resort to war as their fundamental instrument for the resolution of international conflict, and to divert vast resources to the preparation for war. Unfortunately, many governments, including those with the greatest power, mistakenly continuing to believe that their country will be better off pursuing national security interests without being constrained by the limits set by international law governing the use of force
It is important not to overstate the role and contributions of international law. In the past, for instance, international law was used to lend an appearance of legality to colonialism and aggressive war, as well as to serve the interests of oppressive governments who engaged in abuses of their populations behind a screen of impunity, being shield by the law that upheld the territorial supremacy of sovereign states. It remains the case that international law, and the governments and institutions that are supposed to implement its rules, are rarely able to save a people from oppressive rule or even genocidal behavior. Sovereignty provides states with the legal basis for committing human wrongs behind the walls of national boundaries. The rise of human rights, and claims of humanitarian intervention have challenged this moral and political failure to view abuses within states as being as much of a world order challenge as wrongdoing between states.
International law is relevant in many different settings that reflect the extraordinary diversity of transnational activity in the contemporary world. Legal professionals- lawyers- represent governments, corporations, banks, international institutions- to facilitate their activities, both by acting within the limits set by regulations contained in international law, and by altering legal standards to the extent helpful for more orderly conduct of affairs. Ordinary citizens, NGOs, and international civil servants all invoke international law to influence policy debates on a variety of global issues. International law is an important means for communicating claims and grievances, and provides insight into whether particular demands are reasonable or not.
The viability of international law has been recently drawn into serious question by the American response to the 9/11 attacks. It has been claimed that the nature of international terrorism combined with potential access to weaponry of mass destruction, especially nuclear weapons, makes it unreasonable for states to wait to be attacked. The United States Government relied on such reasoning to justify its invasion of Iraq in 2003, which was widely regarded by international law specialists and world public opinion as a flagrant violation of both the UN Charter and international law. It is important both to acknowledge some pressures to interpret more flexibly the rules of international law governing the use of force and to reaffirm the importance of respecting these rules and the authority of the UN Security Council in relation to recourse to war. Reasonable adjustments of international law to changing circumstances of threat and danger can be accommodated, but not violations that defy the underlying basis of restricting reliance on force to genuine defensive security needs. In this regard, the restraints of international law are the work of realist diplomats and leaders, not the visions of utopian intellectuals far removed from the practical urgencies of international political life. International law is partly motivated by considerations of mutual convenience (e.g. the immunity of ambassadors, safety signals at sea) and partly reflective of the accumulated wisdom of seasoned statesmen.
From the perspective of the United States, the country that is most responsible for establishing the legal framework governing war after World War II and also the main challenger in light of recent global developments, the resolution of this debate about whether to limit foreign policy by reference to international law is of the greatest importance. It should be noted that the two greatest failures in American foreign policy in the last fifty years have resulted from the Vietnam War and the Iraq War. These failures would not have occurred if American policy had been self-limited by reference to international law. It is a general fallacy to suppose that in the twenty-first century a powerful country is better off if it is not restricted in its policy options by law. The evidence suggests that the restrictions contained in international law reflect the encoded wisdom of several centuries of statecraft. The narrowing of the availability of war by international law over the course of the last century is an acknowledgement, in large part, of the growing dysfunctionality of war as instrument for the resolution of conflict.
It is not only war and uses of force that needs to be regulated effectively by international law, but it is also necessary for advancing the human security of peoples throughout the world being afflicted by disease, poverty, environmental degradation, oppressive governance. Respect for law and international institutions encourages cooperative problem-solving that is increasingly necessary given the realities of globalization. In this regard, it is necessary to adapt the law-making procedures of the world to the significant roles being played by a variety of non-state actors, including market forces, regional organization, and civil society organizations. Whether incorporating this globalizing agenda and these non-state actors is achieved by an enlarged conception of international law, or by a transition in legal conceptualizing that adopts the terminology of global law is less important than the realization that the law dimension of world order is of critical importance in the struggle to achieve a less violent, more equitable, and more sustainable future for the whole of humanity.
In any current discussion of the future of international law, the role of the United States is crucial, and deserves major attention. This emphasis is not intended to be an Amnerican extension of Eurocentric world order that had dominated the globe for several centuries. It does reflect the importance of the United States as the richest and most powerful political actor in the world, a country that has often in the past taken the lead in championing a law-oriented approach to global security and more recently has seemed to encourage disregard of international law and world public opinion. Understanding both sides of this American relationship to international law helps situate any assessment as to future prospects.
International law is basically concerned with regulating relations among sovereign states. The great struggle of the last hundred years has been to bring international law to bear on war. The United Nations Charter drafted in the aftermath of World War II promises to The prospects for strengthening international law has two important current centers of gravity: (1) the unresolved debate in the United States as to whether to pursue security within a framework that respects international law and the authority of the United Nations. The learning experience associated with the failure of the Iraq policy needs to be converted into a renewed appreciation that reliance on military dominance and discretionary wars is dysfunctional at this stage of history, and that a voluntary respect for international law would simultaneously serve the national and global interest.
The resolution of this debate is of great importance to Americans and the world because of the leadership role that the United States plays on the global stage. The evidence supports the view that American global leadership will only recover its claims of legitimacy if it is able to revive its earlier enthusiasm for promoting the rule of law in world politics.
(2) This specific debate, heightened in intensity after 9/11, hides an underlying set of issues associated with achieving a more effective and equitable approach to global governance in light of a series of world order challenges that have been generated by
such problems as global warming, an imminent energy squeeze, mass migrations, and an array of self-determination struggles. At present, contradictory trends are undermining efforts to fashion a humane approach to these challenges. On the one side, globalization in all its forms is rendering the boundaries of states increasingly irrelevant to the patterning of many substantive concerns, while at the same time border controls are growing more harsh and walls are being created to fence some people in and others out.
It requires a new set of international legal initiatives, ambitiously conceived, to address these problems in a manner that does not produce chaos, oppressive violence, and ecological collapse. It is no longer acceptable to consider that world order can be entrusted to sovereign states pursuing their short-term interests. Protecting the future for the peoples of the world presupposes an ethos of responsibility, which in turn rests on the willingness to replace traditions of unilateralism and coercion with improved procedures of cooperation and persuasion. It is here that the past and future of international law offers hope to humanity provided the turn away from law can be reversed.
The growing fragility and complexity of international life provides a fundamental argument for strengthening international law, and for moving toward the establishment of global law that is able to regulate for the common good activities of market forces, regional organizations, international institutions, civil society actors, as well as the behavior of states. With a growing prospect of an energy squeeze requiring a momentous shift to a post-petroleum world society, the strains on regulatory regimes will be immense. Trust in and respect for international law will encourage approaches that are more likely to be fair and effective than the sort of chaos and resentments that will follow if relative power and wealth are relied upon to shift the main burdens of adjustment to the weak and poor.
The lessons of failed wars over the course of recent decades needs to be converted into a sophisticated appreciation that reliance on military superiority and discretionary recourse to wars has become increasingly dysfunctional at this stage of history, and extremely wasteful with respect to vital resources needed to achieve other essential human goals, including the reduction of poverty, disease, and crime. Protecting the future for the peoples of the world presupposes as ethos of responsibility, which in turn rests on the willingness by both the powerful and the disempowered to replace whenever possible, coercion with persuasion, and to rely much more on cooperative and nonviolent means to achieve order and change. Law is centrally important in providing guidelines and procedures for moving toward a less violent, more equitable, and more sustainable future for the whole of humanity. With the rise of non-state actors (market and civil society actors; international institutions of regional and global scope) there is underway a necessary transition from an era of international law to an epoch of global law. It will be beneficial for the citizens and governments of the world to encourage this transition.