There is no such thing as international law, at least not in the sense that we understand the term “law” when it is used in ordinary language. This point, at least when it is sharply made and closely examined, is not a semantic abstraction. The fuzzy idea of international law as it is typically expressed is relevant to the Monroe Doctrine for the United States, the Ukrainian war for Russia and the island of Taiwan for China.
The great question of the day is: Does existing international law alone have the power and potential to limit the cost and likelihood of the high level of open violence already seen in Ukraine and possibly emergent in the Taiwan Strait or even vis-à-vis he US and the drug-cartel nations below America’s southern border?
Unfortunately, the most likely answer is quite possibly No.
Only the highest possible level of diplomatic skill, innovation and – alas, the most difficult of all things possible or probable to expect – a significant degree of self-restraint on the part of Great Powers may give the world hope of a happy outcome for these hotspot problems.
The elements of law
Law, when the idea is used domestically, inside a sovereign state, has at least three essential elements. (I do not here address the complex idea of justice.)
First: Domestic laws are created (some would say “discovered” or “uncovered”) by a rigorous process involving discussion, consent and promulgation involving all or mostly all legal entities that are affected or touched by the law.
Second: Laws, once they come into existence, are applied to specific instances where parties to some interactive discussions need guidance, advice, direction or obedience, sometimes involving force.
Third: That force, at least in political systems built upon the principle of tripartite governance (legislature, executive and judiciary), is applied by the executive branch.
In systems with a more amorphous structure, the entity that uses force, that has the “police power” (“applies the law”), is necessary if not always separate from the way in which rules for political, asocial and economic behavior come into being or even as to if and how those laws are known about by entities subjected to them.
In contrast, I examine international law. I do so with sincere apologies to the great legal scholar/philosopher Hugo Grotius (1583-1645) who wrote wonderful and persuasive books about, among many topics including cosmology, the (clearly international) Law of the Open Sea as well as about the definitionally international laws for war.
He did not write in vain, and were he still with us, perhaps he would agree with my quibbles. I will twist his notions of Natural Law and say that nations have a natural inclination to protect their national interests above all else.
The empirical fact that bedeviled even the great Grotius is that there is not now and there never will be an international executive with the power to effectively chastise, control or punish – metaphorically to “put in jail” – the Great Men or the Great Powers who spurn and evade and ignore international laws that conflict with their essential interests.
Thinkers of fantastic thoughts have suggested world government as the needed source of international executive power, force and influence. We may safely put such utopian schemes aside, even as we gently invite their high-minded authors to leave the room.
Real world applications
In the world of real, practical, and empirical politics and law, international law (so-called) is a complex amalgam of habit, tradition, history, national interest and relative power, especially military power on the part of competing sovereign nations.
International law sometimes acts as a constraint but more often as a mask to disguise the pursuit of national as well as powerful private interest, prestige, wealth and influence.
It gives the great powers of the day room to maneuver short of open war and it sometimes might protect lesser powers from excessive depredation of their internationally useful assets.
International law often takes visible form in the shape of treaties and international arrangements such as NATO, China’s Belt and Road system, the United Nations etc.
There are many examples where national interest dominates treaties, where treaties are a form of international law.
In 1793, George Washington’s Declaration of Neutrality stated that the “interest and duty” of the USA was to remain friendly with both England and France even as they were “bellicose” with respect to each other. He did this despite the existence of the “mutual help” treaty of 1778 between France and the revolutionary American patriots.
As president in 1793, who could not afford to go back to war with King George III, he was cynically forgetting that as a general in 1778 he needed the French navy’s help (under treaty), among other things, to defeat the English army at the critical Battle of Yorktown, where the surrendering British Army band played a tune titled “The World Turned Upside Down.”
How about this example: In 1922, Neville Chamberlain (supposedly) wrote a letter to his wife explaining the reason England at the time was looking the other way while Germany, despite the Treaty of Versailles forbidding it, was (already) rearming itself and rebuilding its military. Chamberlain pointed out that both Russia and Germany had been “knocked out” by World War I, but that both were rather quickly “reviving.”
Chamberlain preferred that Russia not be the only one of the two to make a complete recovery. He could then set them against each other. Alas, he was too clever by half.
The Treaty of Nanjing, signed in 1842, ended the first Opium War, and it ceded sovereignty over the island of Hong Kong to Britain “in perpetuity.” Treaty equals international law, right? Yet “perpetuity” ended in 1997 in recognition of the real politics of the changed power relationship between China and the West.
Is it realistic to expect self-restraint? It is remarkable that China waited from 1949 until 1997 before putting an end to perpetuity.
Even ideology gives way to national interest. It is possible to believe that China put off pushing the British out of Hong Kong from 1949 to 1997 because the colonial status of the territory allowed a pipeline to exist that carried money, technology and educational opportunities, to be exchanged between East and West along “back channels” despite official ideological barriers (on both sides).
Dealing with hostility
Let us get back to questions involving crude violence. It is possible to believe that China, when it is not provoked by careless but official American statements that US troops are committed to the defense of Taiwan, has a national interest in using Taiwan as the same kind of back channel that served so well when Hong Kong was a colony. Delicate ambiguity has worked well and should be re-established.
It is hoped that at some point sanctions that limit Russia’s ability to finance its military actions in Ukraine will eventually work. Alternatively, or concurrently with financial pressure, treaties that now guarantee Russia’s special status at the United Nations might be revoked. Russian diplomats might wake up to find their personal bank accounts are blocked.
American bankers might whisper in the ears of Mexico about how easy it would be for them to make it difficult for Mexican expats now making money in the US to repatriate some of those funds to families back home.
Some of these tricks might be dirty pool. But such tricks serve everybody’s true national interests better than would, say, dirty tactical battlefield atomic explosions.
Tom Velk is a libertarian-leaning American economist who writes and lives in Montreal, Canada. He has served as visiting professor at the Board of Governors of the US Federal Reserve system, at the US Congress and as the chairman of the North American Studies program at McGill University and a professor in that university’s Economics Department.