Tuesday, August 22, 2006

International Law - Does It Really Work?

There is currently a very unique viewpoint in diplomatic circles being circulated of what international law means and how effective it is. It seems that this opinion is somewhat controversial in some circles simply because if you accept the basis of what it claims then a great deal of political investment goes out through the window.

Let's take a look about what this stand proposes without oversimplifying.

When laws are passed in a nation by the ruling or presiding authority of that country, then the parties affected by that law have to comply or obey that law. Often, that law is national in scope. Sometimes, it is not national in scope and may be local as is the case when you have some model of decentralized governments. In those cases, the local governments have some power over some laws in their part of the country as defined by geographical boundaries. The local governments may prescribe new laws in addition to the national ones just for the parties within their jurisdiction. In some cases, the local laws may even override the national ones.

In the case of the United States, you have state, county and city governments below the national (or federal) government. I will not go into the exact specifics of the American system of government regarding precedence, jurisdiction or power because that is not our purpose here. Suffice it to say that the Constitution is the final law of the land.

There is one thing in common between laws in different countries regardless of whether they are democratic,dictatorships or whatever. That is based on the assumption and truth that breaking the law will generally result in some sort of disincentive to the lawbreaker whether the lawbreaker is an individual, multiple individuals or even a corporation. That disincentive may be jail time, fines, physical or capital punishment or some sort of community work. In other words, laws and regulations are automatically presumed to have teeth so that the affected parties will not ignore them. At a minimum, those punishments will have to be imposed on the lawbreakers so as to retain credibility or to reinforce in the minds of the potential lawbreakers that there may be a good reason not to break that law.

That brings us to the next question. What happens when the law is not enforced? What if no one is brought to justice (whatever form of justice applies in that particular nation or locality) for breaking a law? At first, there may be disbelief from observers but at some point, someone else will also break the law. These incidences may increase to the point that the law is then ignored as long as enforcement is missing. It is as if the law never existed at all. For all intents and purposes, that is the result. This happens at all levels from town ordnances (e.g. jaywalking) to federal laws (e.g. Clean Water Act).

What would happen if we were to extend this model to the international level? What if some country or entity within some country were to break an international law and nothing were to happen to that law breaker? Generally, there might be protests or warnings initially from other countries and in the worst case scenario, sanctions of some kind or another or a trade war would result. In the very rare case, threat of a real shooting war might also be the result but let's put that one aside since it is so rare.

The key here is enforcement on the lawbreaker. Most international laws do not prescribe what the punishment will be and in many cases, due to the way countries value their soverignity, international laws are not officially signed by countries or their representatives or populace, they are just agreements or implied agreements through actions or verbal statements. In other words, there is no real higher authority that exists that has de facto power to create new laws that all countries and their citizens must obey. International law is closer to a gentlemans agreement and a handshake than it is to a court with the power to put you in jail.

Too often treaties, agreements and international body resolutions are interpreted as enforceable law with teeth as disincentives. The truth is that countries sign treaties and make agreements or vote on resolutions when it is convenient and beneficial for them to do so. The other side of that coin is that they withdraw from the treaties or nullify the agreement or ignore the resolution when they want to. Note the fact that India signed the Nuclear Non-Proliferation Treaty and totally broke it. Note that Iraq did not follow the Geneva convention several times when they were battling the Coalition forces. Note that the United States withdrew from the SALT II treaty when it wanted to build a more substantial ABM system. We can go on and on but you get the point.

So, as long as India and Iraq and the United States does not suffer real consequences for these actions, what does that teach us about international law? It tells us that we cannot interpret much of it as law as we know and experience it in our everyday lives. After all, many regimes violate this so called international law when they torture, kill and abuse their own citizens on a non-trivial scale. Some of them are even guilty of crimes against humanity. However, the fact that it goes on shows how toothless or how uncommitted the rest of the world is in enforcing that international law.

So call me a cynic, a law - international or otherwise - doesn't amount to a hill of beans unless someone puts their foot down and enforces it. Otherwise, it is nothing more than something countries use to pretend that they can trust each other with. At the risk of bad grammar, international law ain't.


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