Michael Savage, 27 September 2006
Political arguments keep coming back to debates about law. The invasion of Iraq was discussed in terms of the legality of intervention, and critics pored over the detail of the British government’s legal advice. Environmentalists and labour activists point to legal obligations to bolster their claims. And human rights have become a universal language of politics. Behind the scenes, more technical regulations governing globalisation and international trade have also been a focus for radical criticism.
Law, it seems, is the new politics. Perhaps people have come to recognise that influencing the way that things are regulated is a powerful way to advance a political agenda. Rather than ineffectual heckling, critics and campaigners can have a real impact on governance.
Or perhaps the focus on regulation is an impoverished kind of politics; it is all that is left when historic political struggles seem to have run their course. Instead of arguing about political principles, we focus on encoding our shared assumptions in regulations and laws. The danger, some suggest, is that there is insufficient debate about the principles that are informing regulations.
International law is a contentious field. People disagree about what is happening, what might happen next, and what ought to happen. To be clear about what is at stake it helps to split the debate into three questions – are we living in a lawless world, is it possible to make the world less lawless, and is more international law desirable? Lots of different theories are deployed, but the essential points are quite straightforward. It is helpful to start by sorting out some of the different issues that are at stake.
Do we live in an empire of regulation or a lawless world?
Almost everywhere international regulation seems to have been expanding over the past few decades. New agreements cover environmental protection, trade, and even criminal law, with the development of War Crimes Tribunals and the International Criminal Court. But the world is also looking increasingly lawless. Laws have not prevented atrocities in many brutal wars. The US appears aloof from international law, ignoring legal consensus with its internment of hundreds in Guantanamo Bay, for example. Agreement on the principles at Kyoto has not meant that emissions have been cut.
Some say that the development of international law is a lengthy iterative process. The rule of law expanded slowly inside states, with periods of banditry before the modern institutions of police and courts developed. It is perhaps important, for example, that even when states break laws they are at great pains to show the world that they are in fact acting in accordance with law. International law has not been institutionalised to the same extent as domestic law, but that does not prove that it doesn’t exist.
Others argue that if the most powerful actors can ignore laws altogether, then they are not laws at all. The power of America, for example, means that they can pick and choose which laws to follow, whilst hypocritically enforcing other laws on weaker states. Because it is so unjust and arbitrary, some argue, international law does not deserve to be considered law at all.
Part of the argument is about what international law is. There is no over-arching authority in international relations, unlike in nation states, so laws have to be more consensual. At a minimum, they comprise things like treaties and charters governing issues like diplomatic immunity, air travel, and international postage. Some people argue that more amorphous ‘ways of doing things’ constitute a kind of law too.
International relations scholars and lawyers talk about ‘regimes’, meaning principles and rules around which different actors – states, corporations, international organisations – converge. The advantage of this expansive definition is that it includes a wider spectrum of ‘law-like’ behaviour, and points the way towards firming up international law into something more durable. But critics have charged that it is too fuzzy and does not capture the real limitations of international law.
These are not just technical arguments about definitions. How we assess the role that law actually plays in the world today is crucial to shaping what we think of its potential to do good or ill in the future.
Could we live in an empire of regulation or are we condemned to a lawless world?
Some people argue that the asymmetry of power in international relations means that international law is impossible. It will be obeyed only for as long as it is in states’ interest to obey it. The growth of international law might therefore reflect nothing more than a transient period of international stability under the aegis of American power. In this view, an empire of regulation could only exist if states want it to exist, and attributing any independent force to law could blind us to dangerous instabilities in the world.
Others show how law can act as a ‘gentle civiliser’. Once legal principles are embedded, everyone is measured against them – even when they do not follow the rules. They argue that law does in fact have independent power, even when it reflects the structures of unequal power. Once a law is made it cannot be unmade on a whim because powerful states don’t like it. There is certainly a problem of compliance, but the very fact that powerful states are held accountable to law before international public opinion demonstrates the force of law.
The next few years may prove crucial in this debate. In the past few decades an enormous amount of international law has been made. The new challenge is compliance and enforcement – ensuring that laws do what they were intended to do.
Is an empire of regulation any better than a lawless world?
Many think that the growth of legal argument is a sign of progress. There is no question that the widespread observance of certain international laws has made the world a better place. Most obvious are agreements such as the Geneva Convention around treatment of prisoners of war. There are plenty of less spectacular examples, including treaties governing the process of making international treaties, or trade agreements that remove uncertainties that previously held back commerce.
It is better that we can agree a framework of rules to conduct international politics, just as we have rules and procedures in parliament and laws governing our behaviour. It would be unthinkable to have to reinvent procedures every time parliament sits, or reconsider the morality of murder at every trial. Far better, they argue, that these things are settled. People can disagree with laws – domestic and international – but at its heart international law reflects real agreement on basic principles of justice.
However, not everyone agrees that the growth of law is a good thing. Some people think that this has impoverished political debate because it limits the range of things that we can argue about. When problems are defined as legal, the terms are set out in advance. If the debate about invading Iraq is about the legality of the invasion, how can we discuss its morality? The question of whether something is legal or illegal is more limited than the question of whether it is right or wrong – and for whom.
This is the crux of the political debate. Is international law part of a political strategy, or does it block politics? The answer depends partly on your view of politics. But it will be shaped by how we view the achievements of international law.
Michael Savage is an investment banker with an interest in financial economics and development
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