Monday, July 5, 2010

On the idea of international law

On Wed, Jun 16, 2010 at 17:34:19
Penny asked:

This is a political philosophy question about the incompatibility of national sovereignty and international institutions such as the UN, EU, treaty commitments and the legitimacy (or not) of enforcement mechanisms. I'm sorry it's so long.

For my entire adult life I have been a strong supporter of the UN and international law as the best hope to prevent and mitigate wars and help bring about, if not perfect global peace, harmony and justice, at least a reduction of conflict and more peaceful coexistence. I dislike nationalism, and particularly superpatriotism, which seem to me one of the principal causes of conflict, and have looked forward to the decreasing importance of nation states.

Now, since I've developed an amateur interest in philosophy and ethics, I discover that national sovereignty is seen by many as key to human progress and civilisation since at least the Enlightenment; that it is inalienable and by definition supreme, meaning that states cannot relinquish any part of their sovereignty, thereby destroying any claim to legitimacy of international law (and the courts to enforce it). I read, too, that while states have the authority to make treaties and sign up to conventions if they wish, they can also break them at will if that suits, and that no other state or institution has (or can have) legitimate authority to prevent them, or penalise them for doing so (or even, it seems, have grounds to criticise them, since states are not moral agents).

So when those of us who were against the Iraq war complained that it was a war of aggression, or we cite the Geneva Conventions (rather than basic morality) on the treatment of prisoners, or the Law of the Sea when unarmed passengers are killed on ships in international waters, or the discriminatory application of the Nuclear NonProliferation Treaty, or we welcome the establishment of the ICC, apparently we haven't a philosophical leg to stand on.

If nothing short of a world state (inevitably oppressive and therefore far from desirable) can legitimately override national sovereignty, what is to be done? Are we stuck forever with a Hobbesian state of nature in the international arena, where the strongest countries can generally expect to prevail over the wishes and needs of the weakest, backed by the threat of superior brute force?

I was warned that studying philosophy would force me to rethink some of my fundamental beliefs, which was true and is stimulating, but I'm finding this very hard to come to terms with. Is there a way round or over the sovereignty stumbling block to greater global justice, a philosophical route to legitimacy for what I think of as progressive international institutions?

The question of how the actions of nation states can be subject to law is the most urgent question of our times. It is, above all, a practical question. If the United Nations and the Security Council are not sufficiently effective to deter or prevent wars of aggression then we should be figuring out ways of making them more effective. Which is of course exactly what political thinkers and political leaders have been doing. If we succeeded, would it really matter if this went against some treasured philosophical principle? I don't think so.

Sovereignty is essential, as Hobbes argued in Leviathan because in the absence of a sovereign to whom one cedes the power to enforce law, there can be no justice and no law except the law of the jungle, the war of 'all against all'. But Hobbes also argued with perfect consistency that a monarch, ruling alone, is the only effective sovereign. As soon as you introduce limitations to the power of the monarch — a parliament for example — the problems that the idea of a sovereign was introduced to solve break out all over again.

The problem is encapsulated in the famous example of the Prisoners' Dilemma. Of all the many game-theoretic strategies that have been explored, Hobbes' solution is the only one that guarantees the an agreement or contract will be honoured by both parties — because they are answerable, not just to one another but to a third party who has the unfettered power to punish infractions with lethal force. The third party, once appointed, cannot be unappointed. That's what ensures no backsliding on the deal.

No-one accepts this today in the political arena. Why not? Logically, Hobbes' argument is unassailable. To absolutely guarantee peace, the humble acquiescence of every subject to the law of the land, nothing less than the absolute power of a dictator is required. The problem is, kings and dictators have an awkward tendency to behave in way which is not necessarily aimed at the good of their subjects. (But that's OK, because they will face the judgement of God.)

Having made the experiment, human nations have settled for less. We have a political system — I'm talking about liberal democracy although you could say similar things about other political systems — which works for the most part in maintaining the peace of the nation. Bad things still happen. There are political stalemates when we need urgent political action; the police force struggles to stay on top of the crime rate; civil disobedience and strikes throw their spanner in the works.

'Thank goodness that they do,' would be a reasonable response. Can you imagine what kind of state it would be, where the decree of the ruler was absolute, where every crime and misdemeanour was instantly punished? Vid screens in every room just like in 1984. You drop a piece of chewing gum on the pavement and Whooof! off you go in a puff of smoke. (Although I know a few people who would agree to that.)

So my argument would be, if we are prepared to compromise the logic of Hobbes' response to the prisoners' dilemma for the sake of practicality, then what this means, in effect, is an admission that the idea of a 'sovereign' is a fiction. It may be, as many believe, an indispensable fiction, but it is a fiction nonetheless. I recognize the law of the land, by and large, but there are cases where my conscience, or just urgent practical need, overrides respect for the law. One drives through the occasional red light.

The United Nations is a building in New York. It is also a fiction. It doesn't exist except in the minds of the political leaders who founded it and the delegates who attend it. Belief that the UN can work is necessary in order to make it work. And it has worked, by and large; at least one can argue that world affairs would have been in a far worse state without it.

There isn't a question of what may or may not 'legitimately' override national sovereignty from a philosophical standpoint. If a resolution is passed by the UN, then it is legitimate, because that's just what the member states have subscribed to. Of course, the real world being what it is, resolutions fail to be implemented, just as national laws fail to be observed. Punishments and sanctions only deter in proportion to their severity: that's a problem for national law as well as for international law.

But can't philosophers figure something out? Insofar as this is a problem for game theory, you need game theorists; insofar as this is a problem of practical politics, you need political scientists. Maybe somewhere in there, is a role for utopian dreamers. (The League of Nations was once a utopian dream. It's failure led to the UN.)

The most intractable problems of our time require more than a number-crunching or logic-crunching response; they require originality, creativity. Something new, at any rate. I do wonder whether there is any meaningful role for political philosophy. You want 'philosophical legitimacy' for international law? You've got it. What we want is just to make international law more effective, without it hurting too much. Maybe that just shows the colour of my philosophical creed (for want of a better word, call it pragmatism with a small 'p').

1 comment:

  1. The strict proponents of national sovereignty with whom I’ve been arguing through this problem seem happy enough to compromise to the extent that they’ll accept the government of the day as the embodiment of sovereignty, rather than Hobbes’s absolute dictator. They’ll also acknowledge that it’s a useful fiction. But they seem unwilling to budge on the view that sovereignty is absolute and inalienable.

    Nations can join the UN (or other international treaty organisations) on the grounds that (and as long as) it furthers their self-interest. But they can also refuse to cede or recognize powers of redress if they renege on their commitments, or they can withdraw from the institution if any punishment is threatened, if [i]that[/i] best serves their interests. Which brings us back to the absence of an effective (or, as they see it, legitimate) policeman in international affairs. The USA (and others) can decide not to join the ICC or recognise claims against them under international laws they’ve helped write and signed up to (assuming the benefits to them outweigh whatever disadvantages they might face from international disapproval). Might is still right.

    I’m afraid I don’t think your claim that “If a resolution is passed by the UN, then it [i]is[/i] legitimate, because that's just what the member states have subscribed to” would convince them.

    But your pragmatic approach is good enough for me. I can only think that the better the UN and international conventions work, the better the laws, then the more persuasive ever greater commitment to them becomes and the more nations will see their self-interest as being served by complying. And that would lead to reduced need for pressure, sanctions and other “coercive” measures and undercut the principled philosophical objections: a virtuous spiral.

    You’ve revived my optimism. Thank you.