Magazine article The Wilson Quarterly

Two Cheers for International Law

Magazine article The Wilson Quarterly

Two Cheers for International Law

Article excerpt

In March of this year, as U.S. tanks began to roll toward Baghdad, international lawyers in the United States and abroad decried the action as a violation of the United Nations Charter. The invasion, some worried, would strip away the last pretense that international law could constrain state action. Today, as we face an increasingly conflict-ridden post-September 11 world, questions linger about the place of international law in maintaining international order. When states so openly flout it, is international law worth having?

Even before the invasion of Iraq, events had given pause to all but the staunchest defenders of international law. Near the end of the Clinton administration, for example, Senator Jesse Helms (R.-N.C.), chairman of the Senate Foreign Relations Committee, bluntly declared before the UN Security Council that if the United Nations were to seek to impose its power and authority over nation states, it would "meet stiff resistance from the American people." The administration of George W. Bush, which came to power almost exactly one year later, immediately made clear that it shared Helm's disdain for international Jaw. Within his first six months in office, President Bush withdrew from the Kyoto global climate accord, threatened to abrogate unilaterally the 1972 Anti-Ballistic Missile Treaty, and revoked the signature of the United States on the treaty creating the International Criminal Court.

But not all the blame for today's state of crisis in international law can be laid in Bush's lap. The issue of the role of international law in regulating international relations has bedeviled the world community for decades. After World War II, even as the world pressed ahead with the UN and other new international institutions, widespread dismay over the failure of earlier institutions to prevent the collapse of order prompted a wave of attacks on the Wilsonian ideal of an international system founded on global legal order. As long as there was no sovereign power to manage enforcement, critics argued, international law was meaningless. To regard it as anything else was not just unrealistic but dangerous.

And yet, these deep-seated doubts have done nothing to stem the growth of such laws. More than 50,000 international treaties are in force today, covering nearly every aspect of international relations and nearly every facet of state authority. The treaties range from ambitious multiparty agreements to narrow bilateral pacts. This great edifice is now under siege, yet those who built it have done little to explain or defend it to the public at large. Their inaction has allowed those who are skeptical of international law (and tend to know little about it) to fill the vacuum in the public debate. Little surprise, then, that the Bush administration has faced only a whimper of challenge to its policy of malign neglect.

The failure to mount a persuasive defense of international law has its roots in the universities, where so many ,of the ideas that inform public debate are incubated. With a few notable exceptions, legal scholars have remained largely above the fray. Instead of addressing critics, they have focused most of their attention on interpreting and creating international legal rules--and simply assumed that states will observe the rules. At the same time, an intellectual chasm has opened between students of law and students of politics: Legal scholars, for the most part, have ignored many questions about the role of political power, while political scientists, who think of power first and foremost, have tended to ignore international law. That division has prevented the emergence of a fuller view of the role of international law in the world.

But the chasm is closing. A new vein of scholarship, which takes international law seriously while examining it critically, confirms neither the greatest hopes of international law's advocates nor the greatest fears of its opponents. …

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