The founding myth of modern international law is that the Treaty of Westphalia, which ended the Thirty Years’ War in 1648, gave birth to the system of states and the concept of inviolable state sovereignty. The Thirty Years’ War was the last of the great religious wars in Europe, which were fought not really between states as such but between Catholics and Protestants. As religious minorities in one territory appealed to the coreligionist monarch of another, the Continent burned for three decades… The Treaty of Westphalia restored the principle of cuius regio eius religio—that is, the prince of a particular region determines the religion of his people. In today’s language, this means that one sovereign state cannot intervene in the internal affairs of another.
But in reality, it took centuries for the modern state system to develop, and absolute sovereignty has never existed in practice, as many states on the receiving end of great-power interventions would attest.
[…]It’s important to realize that the right of sovereignty did not mean the prohibition of war. States were still free to go to war, as a matter of international law, until the Kellogg-Briand Pact of 1928 formally outlawed war (to evidently little effect). …the innovation of the United Nations Charter: Article 2(4) required all states to refrain from “the use of force in their international relations against the territorial integrity or political independence of any state.” The right of sovereignty no longer included the right to make war.
Further, given the apparent link between Adolf Hitler’s horrific depredations against the German people and his aggression toward other states, the right of sovereignty became increasingly encumbered with conditions on a sovereign state’s treatment of its own people. Thus was born the international human rights movement, which today has turned traditional conceptions of sovereignty almost inside out.
[…]Why such a shift? Because the decade after the Cold War, much like the decades before the Treaty of Westphalia, revealed a seething mass of ugly conflicts within states. […] But unlike in the 16th and 17th centuries, the danger as the 20th century drew to a close was not so much from one sovereign’s meddling in the affairs of another as in the failure of regional and international institutions to intervene early enough to prevent the conflicts from boiling into violence…
[…]The story of sovereignty, even highly simplified, illustrates a basic point about international law. It is an instrumental rather than an essential body of rules… It is a highly imperfect instrument, as indeed is domestic law. Because international law regulates a society of states with no central authority, it lacks even the hint of coercion that’s implicit in every encounter with a domestic police officer. It can be enforced by the military might of one or more nations, but that sort of enforcement is the exception rather than the rule.
Yet for all its imperfections, international law survives because it is the only alternative for nations seeking to regularize their relations with one another and bind together credibly enough to achieve common gains.
[…]In the 1980s, political scientists such as Robert Keohane, Steve Krasner, and John Ruggie demonstrated more precisely what international lawyers had long believed: “Regimes,” meaning everything from treaties to organizations to customary practices, allow nations to overcome a dilemma. The best solution to a problem can be achieved only through cooperation, but any individual state risks a “sucker’s payoff” if it acts cooperatively and other states do not. Rules and settled practices overcome this dilemma by making it easier for states to negotiate credible commitments, to gather and share information, and to monitor one another and develop reputations for good or bad behavior.
America’s Founding Fathers knew that the United States needed international law as a shield to protect a new and weak nation. They went to great pains to declare their new democracy a law-abiding member of the society of nations. […] The Constitution enshrined treaties as “the supreme law of the land,” alongside the Constitution itself and federal law. The first Congress made it possible for aliens to sue in U.S. federal courts “for a tort only, in violation of the law of nations.”
[…]Though most accounts of the crucial period after World War I are dominated by the struggle between President Woodrow Wilson and the American isolationists who opposed his vision of world order, an important group of Republicans championed a view of international relations that rested on a commitment to international law more zealous than Wilson’s. The leader of this group was Elihu Root (1845–1937)… But unlike Wilson, who would propose a new international system based on the global spread of democracy and the political and military power of the League of Nations, Root argued for a system based strictly on law.
During the debate over the League, Root, though retired from the Senate, was the principal architect of Republican strategy. Leading Republican senators embraced U.S. engagement with the world, but only on the basis of law, not of binding military and political obligations. They supported legal institutions such as the Permanent Court of Arbitration (established in The Hague in 1899) and the new Permanent Court of International Justice (created by the League of Nations in 1921). But they rejected the collective security guarantee that lay at the core of the League Covenant. They would vote for the Covenant only with reservations attached. Root himself denounced the Covenant for abandoning “all effort to promote or maintain anything like a system of international law, or a system of arbitration, or of judicial settlement, through which a nation can assert its legal rights in lieu of war.” Wilson, however, would accept no compromise, and the Covenant was defeated.
[…]But the Japanese invasion of Manchuria in 1931 and the remilitarization of the Rhineland in 1936 made the shortcomings of both isolationism and pure legalism evident. In 1945, Republicans and Democrats finally came together in strong support of a new international legal order in the United Nations, but one that melded law and power. The UN Charter was written, as Time put it, “for a world of power, tempered by a little reason.” The provisions giving the Soviet Union, China, Britain, France, and the United States permanent seats on the Security Council, along with veto power over Council actions, were recognition that a law-based order has to accommodate the realities of great-power politics.
The interesting question is why the United States, the overwhelmingly dominant power at the end of World War II, would choose to embed itself in a web of international institutions—not just the United Nations but the World Bank, the International Monetary Fund, the General Agreement on Tariffs and Trade, and the North Atlantic Treaty Organization. In After Victory (2000), political scientist John Ikenberry argues compellingly that the United States pursued an institutional strategy as a way of entrenching a set of international rules favorable to its geopolitical and economic interests. Along the way, however, it was repeatedly compelled to accept real restraints on American power in order to assure weaker states in its orbit that it would neither abandon nor dominate them.
[…]The 1945 strategy was the right one, and it is now more essential than ever. We have an opportunity to lead through law, not against it, and to build a vastly strengthened international legal order that will protect and promote our interests. If we are willing to accept even minimal restraints, we can rally the rest of the world to adopt and enforce rules that will be effective in fighting scourges from terrorism to AIDS. The Bush administration, or rather some of its leading members, have constructed and promoted a simplistic dichotomy: international law versus national sovereignty. The ridiculousness of that position is evident the minute one turns to the international economic arena, where the World Trade Organization has the power to impose enormous constraints on U.S. sovereignty. […] Yet the Bush administration strongly supports an expansion of the WTO regime. Why? Because the free-trade system ensured by the WTO yields benefits that greatly outweigh the costs of constraints on American freedom of action.
That is the right kind of calculus to make… And by that sort of calculus, at a time when the United States is frightening and angering the rest of the world, the benefits—to ourselves and to other nations—of demonstrating once again that we are a superpower committed, at home and abroad, to the rule of law far outweigh the costs of self-imposed multilateralism.
International law today is undergoing profound changes that will make it far more effective than it has been in the past. By definition, international law is a body of rules that regulates relations among states, not individuals.
[…]As they come increasingly to apply directly to individuals, future international legal regimes will have more teeth than ever before—through links to domestic courts and by building up a direct constituency of important voters in important countries. The United States has long complained about the weaknesses of international treaty regimes, worrying that they bind states with strong domestic traditions of the rule of law but allow rampant cheating by states that lack such traditions or are without systems of domestic governance that check the power of leaders disinclined to follow the rules.
Source: The Wilson Quarterly (Autumn2003)
Subjects: Articles & Links, Excerpts, International, Law | Legal
