A Brief Reminder about International Law

 

There are always those Realists who, vigorously pursuing the intricacies of power politics, laugh down the very notion that international law holds any bearing over the foreign policies of states. The world, they assert, is inherently anarchic and international law tends to be a tool of subversion by dominant powers in those few cases when it has been effective. They point to the dramatic spectacles of the Versailles Treaty, and more laughably the Kellogg-Briand Pact, and note the increased occurrence of interstate wars in the 1990s when the international system was supposed to be at its height. At the moment many of them are busy writing editorials condemning the international-law-upholding rationale of a possible U.S. intervention in Syria.

While it is probably prudent statecraft to stare unblinkingly into the cold realities of the world, these Realists nonetheless are unfortunate in that they possess an unrealistic understanding of how international law works and functions. In fact, it has been around in varying forms since Thucydides, and disputes about it have usually taken up the majority of the resources of every country’s diplomatic services. Just as war and the balance of power are not final ends or goals in and of themselves, international law is more an aspect of the international system than its solution. Critically, it is nonetheless very real and those who disregard international law do a great disservice to themselves and their countries.

Like domestic law, international law is most effective in those affairs in which it is not noticed. The multinational leagues banning war are merely the sensationalist tips of the iceberg. An imperceptible web of treaties, norms, and gentleman’s agreements forms the bulk of international law, and the historical record seems to show that more often than not, states have followed it when it serves their interests.

It rarely comes to mind that immigration policies and trade arrangements between countries, while perhaps unduly influenced by disparities in power, are nonetheless conducted rather civilly. Exchange rates, tariff policy, immigration quotas and limits, border security, regulation of exports, and other similar affairs must be hashed out in agreements and molded to fit the realities of each bilateral relationship. In our modern world, many states must have diplomatic establishments able to regulate these low-level policies and many more with almost two hundred other countries around the world. And it is rare to see a newspaper flash reporting “Singapore and Liechtenstein embroiled in bitter tariff dispute!” though such conflagrations undoubtedly occur, largely  unbeknownst to the global public. It is true that states seem to let self-interest guide their conduct in these matters, especially given the immense domestic significance of foreign trade and immigration policies. But states wage these battles in fields of gavels and not of swords.

At a more systemic level, it must be noted that the existence of an international system, however anarchic, implies some advanced degree of international law. The celebrated Westphalian way of doing things enshrines sovereignty as prime, and is, in its essence, a method by which states can conduct their disputes without annihilating each other- a system of international law. It has developed standards by which foreign policy ought to be conducted, and while the “sausage making” is occasionally messy it is not nearly as messy as historical forays have been. The civilizations of the Middle East, East Asia, Central Asia, the Americas, and the Indian Subcontinent each appear to have developed their own international systems and methods of international law –before the Modern era – to regulate the relationships between their polities. I contend that the same qualities of these civilizations dramatically aided in the setting of norms and following of customs which led to relative stability. Nowhere is there less international law, and more chaos and destruction, than in the relationships between nations of widely separate civilizations. Where was international law in the Spanish and American conquests of the New World,? When a primitive people and their industrial conquerors face off, the Thucydidean dictum is validated, and the strong take what they can, while the weak accept what they must.

In sum, international law does not seem to stand on its own, but rather become imposed by cultural similarity and the eternal reality of the balance of power. As such, it is an organic phenomenon endemic to international politics and therefore must be included in any realistic analysis of why states do what they do. If we were entirely inclined to destroy each other at every given opportunity, we would have done so by now, and no laws could govern us. But international law, however mild, has affected us and guided the hands of our policy. Realists forget this fact at their own peril.

Don’t Waste Your Crises, Mr. President

“You never want a serious crisis to go to waste,” counseled President Obama’s first Chief of Staff, Rahm Emanuel, in early 2009.

Although many Republicans, still recovering from their losses in the 2008 Election, seized the advice as evidence of the Obama Administration’s secret intention of transforming the United States into an Orwellian nightmare, the quote itself is not unprecedented. Winston Churchill said something similar, and strategists across the ages have noted that when the status quo falls into chaos, the winners are those who seize what they can. Looking back on American history, it seems that the greatest Presidents used great conflagrations to their advantage, and the weakest Presidents bungled them. Abraham Lincoln and Franklin Roosevelt come to mind. Their presidencies coincided with the two deadliest threats in the country’s history: the Civil War in Lincoln’s case, and the Second World War in Roosevelt’s.

Conversely, the presidents directly before these legends have been remembered as failures. James Buchanan is remembered as the man who thought he would be the last President of the United States and failed to subdue the domestic unrest which ultimately culminated in the Civil War. Calvin Coolidge and Herbert Hoover are remembered for their isolationism in the time of the rise of Fascism, and their inaction when faced with the onset of the Great Depression.

But a Commander-in-Chief need not wait for apocalyptic upheavals to get a chance to prove his leadership. The nature of politics is such that the state is beset by constant crisis, with challenges approaching at all times and from every direction, including from within.

Most people would be hard-pressed to recount the foreign policy of Dwight Eisenhower. Yet the Sputnik controversy, the Korean Armistice, the Suez Crisis, and the U2 Incident all occurred on his watch, and Ike is generally remembered as one of the best – if not the least interesting – Presidents of the Twentieth Century. Perhaps Kennedy best exhibited good crisis management: following the failure of the Bay of Pigs Invasion, he deftly managed the Cuban Missile Crisis and is still one of the most popular Presidents in our history. Truman, Nixon, and Reagan assembled some of the best foreign policy staffs in American history, and are thus remembered for strong foreign policies.

Carter, on the other hand, is remembered as a better person than President precisely because of his crisis management – he bungled the Iranian Hostage Crisis, which was not necessarily a matter which threatened our territorial security the way previous crises had, but nonetheless posed a threat to our overseas interests and national prestige. Lyndon Johnson, another great man, dramatically increased America’s presence in Vietnam, yet failed to solve anything, and for that has been reviled among moralists and strategists alike. Perhaps most notorious has been George W. Bush; it is likely that his management of the War on Terror will leave him remembered as a warmonger and a generally incompetent leader.

We come, now, to the question of President Obama. How will he be remembered? If he continues to pursue a foreign policy akin to his first term, he will likely be remembered in the same harsh light covering Johnson, Carter and Bush.

The international system is entering a period of great change. The ongoing financial crisis is its economic manifestation, but the crisis itself goes beyond economics: class, technology, and the role of government all affect and are affected by the current developments. Meanwhile, new bases of power rise around a world which is politically more complex now than it has been since the late 1960s.

New challenges are on the horizon, and those who handle such situations well will go down as great statesmen. History remembers those who fare poorly as politicians. To his credit, President Obama did not emulate his predecessor’s adventurism, and by scaling back the Afghan and Iraqi wars has freed the American military from its former tied-down state. And the Bin Laden raid was, undoubtedly, the high point of his foreign policy.

But almost all of his administration’s major initiatives, from the Reset Button with Russia to the Asian “Pivot” to the New Beginning with the Muslim world, have been either poorly-informed ideas or only partly-successful policies. And the President’s crisis management, it seems, has been no better. As the Arab Spring toppled dictator after dictator, some of whom were American allies, inconclusive and contradictory statements emerged from the White House. The same pattern is visible now as the Syrian war drags on and an American intervention appears to loom closer. And although the President handled the recent North Korean crisis reasonably well, the unwise Libyan intervention has spawned countless unforeseen consequences, while Russia’s recent granting of asylum to Edward Snowden on the grounds of international law appears to be a diplomatic crisis in the making. It is unclear whether the President will handle the unknown crises awaiting him in the last years of his second term as a politician or a statesman.