International law can be shown to be unworkable by invoking a three pronged model of law. While the institution and administration of law do not pose fundamental problems for international law, the third component, the political power wielded, must do so. It is argued that this is not just a problem in practice but in principle.
A constitution that is made for all nations is made for none; it is a pure abstraction, an academic exercise made according to some hypothetical idea.
Joseph de Maistre
1. Background to Internationalism
Since the end of World War I, there have been wide-ranging efforts with regard to instituting a universal legal code. These exertions have sought to transfer standards of domestic law into the international arena and was spearheaded by the victorious Allied Powers, and notably by Woodrow Wilson and his advisor Colonel House. The stall was set out early and the most striking example of this tendency was the indictment of Germany and the Kaiser for starting the war. Although the League of Nations set itself ambitious targets, which ultimately ended in a dilution of such ideals after WWII, the dream of an internationally regulated order was kept alive. Today international law is in force and taking root.
2. Teething Problems
De jure, there is a system of international law but I am sure most would admit, after the debacle of events like the Rwandan tragedy or the Iraq war, that this system is a work in progress. In other words, the de facto status of international law is in question. The partiality of the International Criminal Court, a body almost exclusively concerned with African leaders, raises questions about the judicature of an international system.
However, despite these teething problems, the hope remains that one day the world will be governed by a universal set of norms that function as regular as clockwork. These norms will compose a system of international law and will be applicable any place at any time …. I think that this is a fair assessment of the hopes harboured by the promoters of an international system and it is a common sentiment.
3. Statement of Intent
Without getting into the specifics of the shortcomings of the ICC or the Iraq war for the time being, I would like to, in a word, expose international law and show how it conceals a dark side. This ‘hidden hand,’ I would argue, should be clear once it has been pointed out and requires no great insight. Let us look at domestic law for a start.
4. Domestic Law
Laws are passed, either by consitutional plebiscite, or as parliamentary legislation, or even by lesser delegated bodies. Even then, that might not be the end of the matter and a great deal of interpretation gets bound up with administering the law. But let’s leave all the complications and cultural nuances aside (i.e. whether we are dealing with a common law or Roman law jurisdiction). We can simply say that there is (1) the institution of legal standards and then (2) there is the administration of law.
Keeping in mind that we are only dealing with domestic law, we now must introduce a third and concealed factor and it is of course the muscle, the security apparatus. Of course, this muscle (ideally) should be legally circumscribed and then it comes under the first component. It also comes under the second component of administration. Right?
Not quite … in a previous blog I have shown that the police force, the most benign face of any security arm of a State, originates in the political. Coercion and violence are meted out by the police force, although not necessarily to all and sundry. There then are other layers of security. Every country must have an army and or potentially other arms of security. This is more in evidence in a country like the United States and it is not uncommon to see militias quelling riots.
The important point here is that the buildings where politicians meet to pass laws or where judges convene to pass sentence do not stand by themselves. They are protected by force and that force is what gives the laws themselves force. I am not making a moralistic argument. There has to be steel behind the law.
5. Two Points
However, with this power there are two points to make which are important. The first is that it is authoritative for extended periods of time … generally most people will be happy with the authority who uses force. The second is that it is not permanent. Force can never be held by one party in a country for long without that power shifting hands. It is the very ‘closeness’ of force that also makes it precarious.
6. Insurmountable Obstacles
So now back to international law. We have established that law must be made, administered, but also must have the currency of force to back it. While the two first legs of the stool are understood, it is the last one that causes difficulty for international law supporters. In fact, with respect to justifying a universal jurisdiction, instituting an international law system meets seemingly insurmountable obstacles.
A universal system of international law seems fanciful but its codification and administration may be possible on some general points. However, the hidden hand is another matter. In any domestic situation for law to be stable there must be, for want of a better word, an ‘excess’ of force to ensure the smooth functioning of law. That can break down. The authority then either regains control, has its power eroded, or is overthrown.
In an international law system, the ‘excess of force’ will be held at a greatly separated distance from those it claims jurisdiction over. There will be no kind of ‘scorpion dance’ between those who are ruled and the authority. There will be no kinship between the two parties and hence no possibility of illegitimately wielded force finding its way into legitimate hands.
7. Explanation of Inconsistencies
That is why there really is no surprise with the inconsistencies of either the Iraq war or the workings of the ICC. At all times, the hidden hand conceals itself as it does domestically but there is no, so to speak, appeal against the hidden hand.
What has been forgotten about law by the universalists is that it is the localized character of the non-legal arm that makes it workable. I don’t just mean localized in a spatial sense … someone may come from afar to wield authority in a jurisdiction but enjoy an identity with those that the law encompasses. The problem occurs when this authority is shielded by factors that make the necessary illusion of permanent force become de facto permanent legitimacy. That is the dark side of any international law system … there is no recognition of the non-legal which supports the legal aspect.
Colm Gillis has written two books, his latest on the theory of sovereignty as advocated by German jurist Carl Schmitt which can be viewed here.