The Problem with International Law

In the comment threads of "The Problem with Hegemony, Parts I and II," Dan Trabue discusses the causes and consequences of various approaches to international law with commentors Eleutheros and Michael the Leveller. The comment which caught my interest the most, however, was in the Part I posting itself:
I don't think the US should participate nor adhere to ANY international law, because usually those laws are not favorable for us.
This sentiment was not being expressed by Dan, but was included in his post to provide context for his own response to it. In any event, the identity of the author's comment is irrelevant, since the sentiment is one espoused by many Americans, apparently including our current Ambassador to the UN.

As I read this comment, what kept nagging at me was a passage from Winston Churchill's memoir, Triumph and Tragedy, excerpted below:
On December 5, 1944, the President had made new suggestions to Stalin and myself. They were as follows: Each member of the [Security] Council should have one vote. Before any decision could be carried out seven members must vote in favor of it. This would suffice for details of procedure. All large matters, such as admitting or expelling States from the organisation, suppressing and settling disputes, regulating armaments and providing armed forces, would need the concurring votes of all the permanent members. In other words, unless the "Big Four" were unanimous the Security Council was virtually powerless. If the United States, the USSR, Great Britain, or China disagreed, then the country disagreeing could refuse its assent and stop the Council doing anything. Here was the Veto.
Nothing new, I know, the Security Council veto has gained much notoriety in the decades since its inception, most recently during the UNSC discussions over Iraq.

One thing that never seems to be discussed, however, is why the veto was created at all. On the next page, Churchill makes it plain:
[Stalin] then expressed his regret that other business had hitherto prevented him from studying the American scheme in detail. As he understood it, the proposal was to divide all conflicts into two categories -- first, those which required sanctions, whether economic, political, or military, and, secondly, those which could be settled by peaceful means. Both kinds could be freely discussed. Sanctions could only be applied if the permanent members of the Council were unanimous, and if one of these members was itself a party to the dispute than it could both take part in discussions and vote.
Pardon the repetition, here, but it's intended to demonstrate how important this concept was to the allied nations . . . and, to drive the point home, this discussion was taking place during World War II, not in its wake.

Churchill's account of Stalin's position continues:
The Russians, he said, were accused of talking too much about voting. It was true they thought it was very important, because everything would be decided by vote and they would be greatly interested in the results. Suppose, for instance, that China as a permanent member of the Security Council demanded the return of Hong Kong, or that Egypt demanded the return of the Suez Canal, he assumed they would not be alone and would have friends and perhaps protectors in the Assembly or in the Council.

I said that, as I understood it, the powers of the World Organisation could not be used against Britain if she was unconvinced and refused to agree.

Stalin asked if this was really so, and I assured him it was.
So there you have it; America proposed, and Britain and the Soviets seem to have heartily agreed, that this organization they were establishing to preserve global peace should be barred from ever taking action without the consent of a select few nations -- those with permanent membership on the Security Council. Only governments without the protection of one of those select few needed to worry about this organization's collective strength being used against them.

The UN was, and remains, a global government limited in the best way the architects could come up with at the time -- by a requirement of unanimity between all the Great (imperial) Powers before any substantial action can be taken. This was the essential purpose of the organization, to defuse conflicts between these powers by providing a forum for their peaceful resolution, as well as to facilitate their cooperation in dealing with common problems concerning other (subordinate) nations. Absent in this process was any contemplation of morality or adherence to principles; unless a permanent member opted to withdraw from the UN completely, it could openly flout the organization's rules and requirements with complete impunity. The Great Powers would be allowed to do as they wished, provided they could get away with it diplomatically/economically/militarily.

In practical terms, the Security Council veto is an explicit codification of the principle that some countries are, indeed, above the law.

Churchill closes the chapter with a direct quote of some remarks Stalin made to him at a state dinner in 1945. The final line:
If we, the three Great Powers, now hold together no other Power can do anything to us.
A new world order.


Michael Westmoreland-White said...

Your post is excellent, yet your stark conclusion, "some nations really are above the law" does not (quite) follow. I have never liked the Security Council veto or the concept of 7 permanent members of the SC, but it was a necessary compromise of the day to get both the U.S. and the USSR to participate. The veto and permanent membership of the SC status DOES create an unequal application of international law.

To that extent it is not just and is rightly resented by the rest of the world. However, it does not place any of the veto holders ABOVE international law altogether--but hinders the enforcement of that law against them.

The Security Council is only one international organization, even related to the UN. Another is the International Court of Justice, commonly called the World Court. (Not to be confused with the recently created International Criminal Court or ICC). The World Court decides cases of international law, not against individuals, but against nations and it has several times ruled against the U.S., e.g., when it ruled against the Reagan govt. for mining the harbors of Nicaragua in 1984.

If the Security Council did want to take punitive action against the U.S. for violations of international law, and the U.S. predictably vetoed this action, THEORETICALLY the matter could be referred to the UN General Assembly where all nations have one vote and zero vetoes. This has never happened and one of the reforms of the UN I would like to see is the strengthening of the General Assembly vs. the Security Council. But, in theory, the 7 permanent members are still subject to UN sanctions.

Other ways that pressure can be brought on the U.S. by others can include economic sanctions not authorized by the SC. This has happened several times recently when the WTO has ruled against U.S. on trade matters.

In my view, enforcement mechanisms against the U.S. when it violates international law must be strengthened. All nations must be equal under the law, just as all individuals must be. But although that is not true at this time, it is still an exaggeration to say that the U.S. and other permanent members of the U.N. SC are above the law.

catastrophile said...

"THEORETICALLY the matter could be referred to the UN General Assembly where all nations have one vote and zero vetoes."

My understanding is that the UN GA has the ability to pass resolutions and spend money, but not to compromise the sovereignty of any state. That power rests wholly in the Security Council. There are any number of ways by which an action can be thwarted without the consent of a permanent member, but sanctions cannot be initiated without the unanimous approval of all permanent members. And that's the heart of the issue, to me. Nations can file complaints and refer issues and condemn an action until they're blue in the face, but they cannot obtain enforcement against any of these permanent member states. And a law which cannot be enforced, is not a law at all.

If we refuse to pay our apportioned share of the UN's budget, no one can compel us to do so. If we decide to spurn the Security Council's decision and invade another country, the UN is powerless to hinder our actions. We are literally immune from consequences. If that doesn't place us above the law, I don't know what does.