International Law: A Primer

Iʻve written about the Law of Occupation recently, but what of international law in general? Specifically, how “real” is it? And why should states obey international law? These questions were the subject of an issue of International Legal Theory journal in 2005. Enrique de Revago Bustamante a Peruvian legal scholar introduced the concept and origin of international law:

The Peace of Westphalia of 1648, which put an end to the Thirty Years’ War, marked the birth of modern international law, giving rise to the so-called collective treaties and organizing multilateralism (as opposed to the bilateralism that had previously dominated treaty law until that time).

As to the question “why obey?” he quotes Rivero (1947):

The nation is not alone. A few others coexist with it all over the world … Force, however, is not a principle of constructive of human coexistence … under the shadow of peace, the awesome concept of the international community begins to take shape, broadening the horizon of harmony to the outer reaches of the earth. Treaties ban conquests and frontiers are discussed on conference tables rather than on battlefields.

Utopian as this may sound, much of what Rivero presaged in 1947 has come to pass. I noticed when I was involved in international human and indigenous rights movements that those who moved in those circles had a certain vocabulary which was shared across national boundaries and used in international forums. The term international community was often used, and this was quite surprising to me, have come up think of the international realm as one of conflict. In fact, one of the problems we may be facing is that Rivero’s idea is too true – international consensus may have overcome national autonomy to too great a degree in the form of international trade agreements. These actually produce so much consensus across national boundaries they undermine democratic processes within countries. Be careful what  you wish for.

Harold Koh of Yale summarizes state obedience to international law thus:

Most compliance comes from obedience. Most obedience comes from norm internalization. Most norm internalization comes from process.

Norms are a major feature of international law and regimes. In my study of the “Indigenous rights regime” (James Anaya’s book formed the backbone of my paper), the idea of norms was central – to make a certain behavior normal is more effective than coercion. The norms of human rights have largely taken hold in the international community despite resistance and claims that they are laden with Western values and a disguised form of (neo)colonization.

Another emerging idea is that of “compulsory” international law. The idea itself seems quixotic, but in fact it already exists. While leftists decried the rise of the World Trade Organization, a silver lining was overlooked – its enforcement power. If trade regimes can have “bite” (in the form of fines), so then can humanitarian or state-centric regimes. In other words, the mechanisms already exist (or are beginning to) to enforce punishments for violations of international law. We are at the point, nearly, of having to ask if we in fact have too much  international law. Iʻm not suggesting we do, but simply raising a question that hasnʻt been raised in this light.

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One response to “International Law: A Primer

  1. onibaba1

    Another fine post with a tremendous question: how “real” is international law? And why should states obey international law?

    Two different questions, really. States do not have to obey international law, particularly when it does not benefit them to be tied to international agreements, treaties or conventions. North Korea, for example, has not signed or acceded to the Chemical Weapons Convention, nor has the United States signed the UN Convention on the Law of the Sea. But this is a very superficial reading of “obeying” international law.

    Generally speaking, the normative recognition of international law are really guidelines that govern consensual rule-based objectives that pertain to global goals, regulations, rights and resources. Some of these conventions like human rights and climate change may seem very obvious, but what is less obvious are the details of these rules.

    Since the Cold War and the creation of the Organization of Economic Cooperation and Development (OECD), the rules have favored the “advanced” economies led by the US, but involved the European community, and larger economies like Australia, Canada, and Japan. The other countries, organized around the G77, were the developing countries who had to struggle with the double edge sword of aid and development, an oppressive system that generally led to destabilized conditions making it easy for larger economies to govern via proxy regimes.

    The sovereignty of States offers one defining privilege, and it is the privilege to choose what agreements to sign, whether bilaterally or multilaterally, and from a 21st century perspective, what regional cooperation or partnership to join

    Simply put, economic cooperation between States–particularly the OECD– created huge advantages in the passing and recognition of international law. Since the collapse of the Soviet Union, the neoliberal unipolar economic power has given the US unique and special privileges in asserting influence of legal international norms. This is not to say that all of the cooperating countries would always vote alongside the US in multilateral agreements, but when it comes to the fundamentals of GDP accounting, NATO, economic and trade policies, etc, the US could generally bully policy that favored US/Wall St. investment.

    Today, with the rise of the BRICS economies (Brazil, Russia, India, China, South Africa) and the new multilateral financial institutions that were created this past summer as an alternative to the World Bank and IMF, we are very quickly moving away from a unipolar world. The combined size of this cooperation, which could now also include the 22 other Asian nations that have signed MOUs to create the new Asian Infrastructure Investment Bank (AIIB) is huge, and creates great doubts to US leadership in the 21st century. There is no greater opportunity for Hawaii independence, than for Hawaii to enter into regional multilateral meetings as an observer in rule-based sectors like fisheries, seabed mining, environmental regulations and protections.

    Again, the strength of multilateralism is in the participation of global rule making. It is the most appropriate way to enter into agreements with other nations to survive in a globalized world. For Hawaii’s independence to be recognized, Hawaii needs to have a greater understanding of the normative structure of international law. Resigning to 19th century treaty laws as a baseline for joining the international community shows great disconnect to the operative structure and relevance of “international law” as it has functioned since the signing of the UN Charter. And this is particularly relevant to the 21st century when the global economy is quickly moving away from State sovereignty towards cooperations and partnerships as a means to develop their economies and protect themselves against further hegemony.

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