International law: Truth or fiction?
Posted by aogMonday, 14 October 2002 at 18:58 TrackBack Ping URL

Haruspex replies to my massive post. He raises enough interesting points (and I'm short enough on material) that I decided to reply in a post rather than in the comments.

Haruspex comments that he is not a "voice in the wilderness" in claiming that there is support in international law for forcing Iraq (by military means if required) to comply with its treaties and other interational obligations. I suppose this may be a matter of perspective, but certainly the talk I hear out most of our putative allies and the UN is that the US has no basis for acting in international law. In fact, as mentioned in the Instantman article I cited, the only mentions of international law I've seen are discussions of how it prevents the US from acting. Haruspex himself quotes the Bush administration, which is not known for its support and fealty to international law. This is the what I was talking about when I mentioned that international law seems to hold only the US to account (and not anything in Haruspex's posting). The actual arguments made by Haruspex seem reasonable, but the question is, why does only the US see it this way? What should the US government do if no foreign government agrees? What is the remedy under international law if other nations refuse to obey it? This, I think, is the key issue that vexes the blogosphere over interational law. It seems set up in such a way as to punish the law abiding and reward the law breaking. It is this way precisely because there is no external enforcement, standard or arbiter.

This leads to a comment on your followup post, which makes quite a good point (and one that I hadn't considered). The same issue arises there, where US actions are held back by a "diseased" organization. I suppose that the proper legal response would be to withdraw from the UN. That works for me.

I would argue that any such failure of enforcement does in fact undermine that law. It's a continuum, not a discrete effect. If that makes me unique. I accept that. In your example of drug laws, the only reason that such laws can be said to exist in certain inner cities is because there is still some possibility of enforcement. But to a large extent I think it's reasonable to say that the drug laws don't really exist there, in the sense the laws have very little effect on people's behaviour. So it isn't a law in the use of the term as a guide or control of people's behaviour, and what other purpose does law have?

On the supremacy of the US Constitution vs. international law or treaties, the issue comes up more with actions that are in the same sphere.What takes precedence there? Can the US government, via treaty, empower itself to perform actions that are forbidden by the US Constitution? You say

is entirely possible for an action to be both permissible under of these legal systems and to be impermissible under the other at the same time. The question of supremacy is a red herring.

If it were state law vs. federal law, then the question is of great importance to any one commiting the action (see the medical marijauna issue in California). I can only read this as saying "international law is completely irrelevant to actions in the real world". That seems such a strange thing for you to argue that I must have not understood your point. (Although it is consistent with viewing international law the same way inner city residents view drug laws)

As for the historical development of domestic law, I plead lack of familiarity with the terms. I would have considered all of "contract, tort/delict, property, inheritance, etc" to be domestic law, on the assumption that we were contrasting "domestic" with "international". I would agree with your statements about the provenance of current US constitutional law.

I want to thank you for reading my post and responding.