The Bush administration’s recent decision to block military aid to countries refusing to exempt U.S. personnel from the jurisdiction of the International Criminal Court (ICC) has strengthened the conventional wisdom that the United States is out to thwart the development of “international law.” The U.S. should certainly not submit to the ICC, which will inevitably become a politicized tool used to stick it to America and erode the sovereignty of nations. Ironically, though, America’s much-criticized “unilateralism” and “imperialism” may be doing much more to foster the broad, organic growth of meaningful international legal order than supporters of the ICC and the United Nations realize.
Harping on favorite examples — the Kyoto Protocol, the ABM treaty, and, of course, the war in Iraq — liberals (broadly speaking, those who identify with the United Nations and the non-governmental-organization set) see international law as a highly developed system of rules that the United States brazenly ignores and actively sabotages. Conservatives and the commonsensical — outraged by the shabby performance of international institutions in the lead-up to the Iraq war and leery of yielding up U.S. sovereignty to international organizations — dismiss international law as a concern of the anti-American Left, a utopian European daydream, or, more likely, a wily continental plot to restrain the American “hyper-power.”
Conservatives are right to be skeptical of the prevailing international “legal” regime. However lofty its principles, the effect of the U.N. system is too often to cast a veneer of legitimacy over nasty dictators and to let other governments — often our ostensible friends — constrain U.S. action for their own ends. The typical conservative view of international relations is, however, a bleak and unappealing one: Because international institutions will always be manipulated by nasty and jealous regimes, unfettered U.S. power will always be necessary in a dangerous world.
The vision of a peaceful world regulated by law nevertheless remains deeply appealing, however remote it may actually be from the reality at Turtle Bay. After all, the professed goals of the international legalists — peace, human rights, security — are ones we all favor. Can conservatives, too, dream of a better and more ordered world?
History suggests that they can. Conservatives believe that changes in society take place best when they take place organically. A series of baby steps often brings more enduring results than do rapid and radical revolutions. The gradual progression of Western legal society from a rough, Hobbesian condition to a liberal, Lockean one offers us a guide to the current status of international law.
The fact is that international law is much less developed than international-law scholars (and their civilian cohorts) would have us believe. There may be plenty of it on the books, but there is assuredly no widespread international “rule of law.” Though the international legalists trace the lineage of the current system to the 1648 Treaty of Westphalia, the U.N. has a much more recent pedigree. It is only in the past few decades that it has tried to be the broker of international legitimacy, the self-ordained international archbishop giving or withholding its blessing from countries wishing to take action across the world.
When the Security Council dropped the ball in the run-up to the Iraq war, Anne-Marie Slaughter, president of the American Society of International Law and dean of Princeton’s Woodrow Wilson School, famously deemed the war “illegal but legitimate.” She could just as well have called the Security Council process “legal but illegitimate,” or just plain silly.
Why does modern international law fail its most important tests? The simple answer is that it has tried to do too much too soon. Legal societies, whether international or otherwise, develop over time and in phases. Our own legal system developed over many centuries — with roots as far back as medieval England and even ancient Rome. The 50 years that the U.N.-based international system has been in existence looks paltry by comparison.
International legalists are frustrated that international institutions seem to work in only unglamorous fields where all parties have an interest in cooperating — e.g., fisheries, trade, and communications. In fact, that the effectiveness of international law is limited to these smaller matters does not signal failure; it merely shows that the international legal system has only begun to evolve and can better digest smaller issues.
In expecting a decent, liberal international order to burst, full-grown, from the forehead of history, defenders of the current legal system have things backwards. They promulgate an extensive and idealistic set of rules while lacking a central authority that is serious or sincere about enforcing them. International law requires a preexisting authority to define and punish unacceptable behavior, just as our own common law once required a strong monarchy able to enforce its will and judgments. Until such an order exists — not on paper but in reality — the legalists in New York and The Hague should slow down and meditate on Edmund Burke’s maxim that “good order is the foundation of all great things.”
In other words, the world remains a place where life is “nasty, brutish, and short”; it needs a Hobbesian Leviathan to enforce standards before more pleasant, liberal structures can succeed.
In pursuit of the war on terrorism, the United States has tentatively begun to function as this global Leviathan. Taming the world’s outlaws or even having the courage to label them as such will do far more to establish an international rule of law than any number of resolutions and conferences. Indeed, one is a prerequisite for the other, just as Hobbes’s thought had to precede Locke’s. To tie Leviathan down with the ICC’s silken cords would retard, rather than accelerate, the growth of a future world order.
In the broadest sense, then, we can understand U.S. “unilateralism” or “imperialism” not as the rejection of a preexisting system, but as the first tentative steps in a historical process toward a meaningful one in the future. The idea that U.S. predominance may ultimately do more to establish an international rule of law than Belgian presumption offers conservatives an appealing “way out” — an alternative to the bitter choice between keeping America strong in an endless “war of all against all” and succumbing to intoxicating fantasies of instant international harmony.
— Carlos Ramos-Mrosovsky is a student at Princeton University’s Woodrow Wilson School of Public and International Affairs. He is the founding editor of American Foreign Policy, a collegiate foreign-policy publication. An NR intern, he plans to attend law school in 2004.