Friday, September 13, 2013

how limited international law is like high school

part of a project on Habermas and transnationalism

Ignoring of international law—“with impunity,” they say—commonly has no consequences for “sovereigns.” We easily idealize a common commitment to law, but how to make it binding is anyone’s guess. (March 15, 2014: You, too, can become Russian). 

A few days ago, I came across two books on international law that seemed very relevant. Their titles are the basis of my subject line (but not the “high school” part—which has a serious side to it). I came across the titles because I was thinking about the Syria Event, whose parameters have changed significantly in recent days. My interest is also to think about the nature of international law, in light of the Syria Event (but I’m no specialist on law).

But who cares about the common impotence of international law? The Syrians do, certainly (glad). Allies of the Syrians care. Regional neighbors with their own agendas care (not glad). And investors who want global market stability care (not glad). Oh!: And soft-hearted humanitarians with free time to feel desperate sympathy for tragic violations of human rights. But the latter doesn’t (1) sell; nor (2) terribly bother regional neighbors with their own agendas. The bottom line easily seems to be...The Bottom Line. 

So, it would be no surprise that one expert on international law (with a PhD in economics) writes How International Law Works as a “rational choice” (or game-theoretical) approach to international law. Wars get in the way of trade relations; so, “We” need to deal with that. The other expert writes The Limits of International Law as a matter of self-interest that comes into play when it suits sovereign parties—a view quite commensurate with rational choice theory, though the second author isn’t an economist. 

Al-Assad and Putin are essentially acting like businessmen, where Putin’s exploitation of circumstance is about re-building the Russian brand in geopolitics; and Assad’s demanding stances are like contract negotiations by an endowed-estate landlord. In neither case are there matters of principle that aren’t brought to the table subservient to the instrumental positions of each. There is no normative order here; there’s the art of the deal. 

Today, Ban Ki-Moon vocally stands again for international law, which is his UN-defined mandate, but that easily looks like a lot of handwringing. “...[T]he specter of chemical warfare [is] atrocious violation of international law,” he insists. 

Yeah, Mr. Ban, so what else is new?

Book jacket descriptions seem to fill the bill: The Limits of International Law argues that such law “is simply a product of states pursuing their interests on the international stage.” So, you get Assad and Putin tongue lashing the U.S. for violating international law by trying to enforce treaty commitments and human rights when the Security Council is paralyzed by the interests of Russia. “The authors see international law as an instrument for advancing national policy.” So, you get Russia and Syria claiming that the U.S. cites international law when it suits them, and the U.S. allegedly ignores international law when it doesn’t suit the U.S. (which is the Russo-Syrian pot calling the “Western” kettle black; but Iraq now has democratic promise, Syria does not, and let’s compare the U.S. to Russia over the past couple of decades). So, the reality of power is that law is instrumental to it, not readily a constraint—unless there are material consequences. And this fact will be charged against adversaries like litigants in civil suits. But is the U.S. interest here about power; or is it about fair governance? Using law in the interest of fairness (securing a “level” playing field) is different from using law to advance one’s interest on a given playing field. 

Two exemplars of the effectiveness of material consequences in using law for the sake of fairness are (1) efficient trade relations through the World Trade Organization which require qualifications for entrance into The Game; and which can exclude nasty members (like teenage cliques excommunicating someone). Excommunication is the common law sanction of our evolution. (2) Sanctions against Iran—which are working: With Iran, we see their lashing out at increasing excommunication, lashing out via intensified funding of “Islamist” jihadism while the New Caliphate learns how to make a killer prom dress that it would never get a chance to wear (the ethos of cold war M.A.D. writ small). 

The economistic professor of international law argues in How International Law Works that “even rational and selfish states are motivated by concerns about reciprocal non-compliance, retaliation, and reputation to comply with international legal commitments.” So, the Russian brand is important; and getting excluded from the party hurts. The vanity of nations can be ruled for fair ends; so, the business of international law is to play to vain reality productively. 

The author argues—and here’s the point I want to pursue further someday, when I write later about international law—that there’s a sprectum of commitment: “the primary sources of international commitment—formal treaties, customary international law, soft law, and even international norms—must be understood as various points on a spectrum of commitment rather than wholly distinct legal structures.” Agreement is no better than the degree of commitment keeping It All real.

This notion of spectrum complements an approach to ethical theory—my own—as involving a spectrum of engagement.

How do we bring ourselves—in our lives, in our engagements, then as our nations’ exemplarity on the global commons—to have strong fidelities to our agreements, promises, and supposed commmitments? What’s the “nature” of durable fidelity?—to what? What evinces durable fidelity to itself? What is the better way of something that may be self-evident, such that subordinate fidelities remain worthwhile?

What is a good way to understand a continuum of intrinsic value (thus relative values) in a continuum of worthwhile commitment? 

My association to high school surely seems flippant. But looking to find intrinsic values expressed in adolescence—then also looking to find solutions to cruelty there—is not frivolous. Otherwise, psychologists and educators wouldn’t be so insistent about the importance of the conditions of childhood for future promise. 

But I don’t intend to primarily do that. Yet, politics can easily be as “mature” as egoistic teens. So, the elusiveness of solutions in politics can be like generalizing the character of growing up, like a homology between developing group dynamics and developing transnational dynamics. (Habermas’s theory of social evolution early on—in the 1970s—worked with homology between ego-to-ego identity and group-to-group identity. That work remains important, even as his theory moved far beyond his work of the ’70s.)

We would find nothing strange about asking of small groups: What’s the relationship between a sense of kindredness and durable solidarity? What’s the relationship between ease of feeling sympathy and civil society? Yet, similar kinds of questions pertain to regions and nations, continents and global relations. The character of what’s near-and-dear may be the basis for making sense of what can be far-and-worthwhile. As it goes with cultural solidarity, so it may go with durable political solidarity.

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