The Magic of International Law

They’ve been talking about International Law and human rights-y stuff over on the Helicopterview mailing list. I’ve just finished a semester long course on International Law, so you would think I am well placed to discuss this kind of thing. Sadly, you would be wrong, as I did not pay sufficient attention and have got back completely suckass grades for my coursework. But hey, ignorance has never stopped me before.

One thing about the course I did is that it was very law-y, in that it focussed on what the International Law in a variety of situations was. I would have preferred something that looked at International Law in terms of what it is meant to do and whose interests it is meant to serve, together with an analysis of how it works in practice and who benefits from it.

One of my Helicopterview correspondents raised the idea that the whole idea of states having rights – such as the right to have various types of weapons or whatever – is a bit dubious, given that a state is an abstraction and surely the whole idea of law ought to be to give people rights. Maybe so, but my understanding is that in International Law as it stands, states are both the primary actors and the primary subjects. International Law is based on the idea that states have both duties and rights with respect to other states, and also (increasingly) towards private individuals. This conferral of rights on an abstraction is not completely insane, and has parallels with the way domestic law bestows rights on corporations.

The International Court of Justice and the new International Criminal Court were mentioned, with it being suggested that these are a bit useless given their ineffective remit. The ICJ does seem to work in a funny way... basically, you can only be taken to court there if you agree to it. |n practice this means that it tends to be used to resolve interstate disputes where neither power sees a fundamental interest as being at stake. So you get cases about whether the border is 50 feet this way or that way. That said, some serious cases have come before it, either where both parties felt they couldn't opt out of it or where some FULE let themselves be taken to court there by mistake (the case about the USA arming the Contras and mining Nicaraguan ports was one of these).

The ICJ is nevertheless not a body designed to promote human rights, and faulting it for not doing so misses the point of its existence. The ICJ is actually there to help resolve interstate conflict, an entirely different matter. The distinction is important, because, as already mentioned, International Law has historically been primarily about how states operate with respect to each other, and not about how they treat their citizens or other subjects. All this human rights stuff in International Law is something novel and exciting.

Of the International Criminal Court, I say give it time before writing it off. It is only new and it will need to be in operation for a while before we can say what difference it makes. The ICC actually has universal jurisdiction, or will have once enough countries in the world ratify the ICC treaty (this may already have happened). This means that the ICC can indict even people from countries which are vehemently opposed to the ICC, making things potentially sticky for them should they ever want to travel beyond their homeland’s borders. One suckass country hostile to the ICC has signed lots of treaties with ICC states saying that they will not hand over its citizens to the ICC... however, these are thought to have no practical legal validity. It will be interesting to see what happens in practice should someone from this pro-war crime state ever be indicted by the ICC.