International law: the law of a half-built international society
(A nutty, utopian vision, complete with leaps of logic)
French Declaration of the Rights of Man: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”
International law can seem like a mug’s game. It has great promise, but often seems short on real world effects and enforcement. The UN is easily criticised for having realised it has no chance of producing world peace and instead producing endless reports and a rather tedious document numbering system.
But these are cheap shots. One only has to look at the World Bank, IMF or World Trade Organisation to see that international legal structures can have real world effects. One only has to look at refugee law to see international law having a direct affect on individual lives.
Enforcement of every law in society isn’t needed before we say we live under the rule of law. Nor does the fact the law is broken prove it useless or non-existent (that murder still occurs does not invalidate criminal law). A functioning society relies mostly on people having internalised the rules and following them voluntarily or out of a sense of obligation.
States comply with WTO rulings voluntarily for the much the same reason most corporations comply immediately with court orders. States can no more be sent to jail than companies and both could fight off “enforcement” action for some time (economic sanctions or winding-up and deregistration), but both realise they are better off in the long-term with stable rules-based system, even if sometimes it means accepting results against their short-term interests. (This is “regime theory”: the idea that the benefit of a rules-based system in itself can encourage cooperative behaviour out of pure self-interest.)
The problem complicating international law is simple. Law and society are inextricably interlinked. Once people organise into a society, there will be a “legal” dimension to their social system – however unsophisticated or customary.
You cannot have a society without it beginning to generate law, and you cannot have law without a society. International law, the law of the international community, is the law of a society that refuses to see itself as a community.
It is a society that admits its interdependence, but refuses to admit it has any social contract, that in fact sees “social contract” as an oxymoron. It will accept social but unenforceable aspirations (the Universal Declaration of Human Rights) or contractual relations (WTO trade regimes) but remains wedded to the supposedly total freedom of “state sovereignty”.
It’s a society that refuses to see itself (despite the UN Charter) as having a constitution or separation of powers (the International Court of Justice having basically held that it cannot review decisions of the Security Council to establish whether or not they are legal.)
Here’s a simple, old idea. A true society aims at the good of all its members (Aristotle). If all states really were equal in resources, state sovereignty might be an efficient way of aiming at the common good: states are manageable units that might sensibly look after their local people. Letting such equals contract among each other might bring about a civilised and balanced world.
However, to treat as equal that which is not is a form of injustice. As states are not equal, state sovereignty (as a theory upon which to base a society), therefore, promotes injustice.
The only just form of international society would have to start from the premise of a universal society of mankind, and assume that the underlying principles of international law were its unwritten constitution. (To some extent Kant's cosmopolitanism might back this, but you really need to look to early international lawyers like Suarez and Wolff.)
On such a view, states would be holding delegated power from universal society to govern individual countries on trust for all mankind.
If people actually believed this, it would be an interesting world.