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Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]
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Samizdata Quote of the Day “Whom do I lobby to if I want to change international law? Whom do I vote for? If anyone knocks on your door between now and Thursday, ask ’em that. If they can come up with anything remotely within their jurusdiction, vote for ’em.”
– a Biased BBC commenter known as ‘Alton Benes’
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Who Are We? The Samizdata people are a bunch of sinister and heavily armed globalist illuminati who seek to infect the entire world with the values of personal liberty and several property. Amongst our many crimes is a sense of humour and the intermittent use of British spelling.
We are also a varied group made up of social individualists, classical liberals, whigs, libertarians, extropians, futurists, ‘Porcupines’, Karl Popper fetishists, recovering neo-conservatives, crazed Ayn Rand worshipers, over-caffeinated Virginia Postrel devotees, witty Frédéric Bastiat wannabes, cypherpunks, minarchists, kritarchists and wild-eyed anarcho-capitalists from Britain, North America, Australia and Europe.
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He can lobby his MP.
International law ceases to have effect in the UK if the government of the UK abrogates the treaty in question (minsters using the royal prerogative) and repeals any legislation passed (parliamentary vote) to give effect to the provisions of that treaty.
EG
He can lobby Zoggo, his world congressman.
Typical Euan Grey non-answer about something that does not exist in the real world. As GWBush sneered when Gerhard Schroder said he was breaking international law “International law? I better call my lawyer.”
There ain’t no Santa Claus, there ain’t no Tooth Fairy and there ain’t no International Law.
Is this a joke? Or is it serious?
Really, I honestly can’t tell.
Daniel
Canada
No, of course there isn’t. International law is all an illusion created by nasty evil statist conspirators.
Back in reality, however, international law does not require an international state to be enforceable. Is it not a libertarian nostrum that we can have law and justice without a state, by virtue of voluntary cooperation between communities? So it is with international law – no world government needed, just voluntary cooperation between states.
Treaties are international law. You might not like it, and it may not square with your world-view, but it is nevertheless fact.
EG
Euan – There is no such thing as international law. There are treaties and they are signed (oh, the horror!) cynically, for as long as they suit both parties.
They’re not enforceable! Because once a state says, “Oh, re that treaty we signed, we’ve changed our minds. Excuse us. Carry on talking …” that means that is the end of the treaty.
The injured party can’t go to war to force you to help protect it. (“Oh, but you promised!” doesn’t amount to a hill of beans.)
What it amounts to is: “We found another and we’re dumping you.” Or, “It’s no longer in our interests to be best friends with you. Go away or we’ll call the cops.”
There is no such thing as “international law” because there is no such thing – and long may it remain thus! – as an international legislature. Treaties are professions of temporary love. As Bob Seeger sings: “It was real at the time …”.
EG, I don’t think that word means what you think it does;
Main Entry: 1law
4 : the whole body of laws relating to one subject. RULE applies to more restricted or specific situations . REGULATION implies prescription by authority in order to control an organization or system . PRECEPT commonly suggests something advisory and not obligatory communicated typically through teaching . STATUTE implies a law enacted by a legislative body . ORDINANCE applies to an order governing some detail of procedure or conduct enforced by a limited authority such as a municipality . CANON suggests in nonreligious use a principle or rule of behavior or procedure commonly accepted as a valid guide . synonym see in addition HYPOTHESIS
Pronunciation: ‘lo
Function: noun
Etymology: Middle English, from Old English lagu, of Scandinavian origin; akin to Old Norse log law; akin to Old English licgan to lie — more at LIE
1 a (1) : a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority (2) : the whole body of such customs, practices, or rules (3) : COMMON LAW b (1) : the control brought about by the existence or enforcement of such law (2) : the action of laws considered as a means of redressing wrongs; also : LITIGATION (3) : the agency of or an agent of established law c : a rule or order that it is advisable or obligatory to observe d : something compatible with or enforceable by established law e : CONTROL, AUTHORITY
2 a often capitalized : the revelation of the will of God set forth in the Old Testament b capitalized : the first part of the Jewish scriptures : PENTATEUCH, TORAH — see BIBLE table
3 : a rule of construction or procedure
5 a : the legal profession b : law as a department of knowledge : JURISPRUDENCE c : legal knowledge
6 a : a statement of an order or relation of phenomena that so far as is known is invariable under the given conditions b : a general relation proved or assumed to hold between mathematical or logical expressions
– at law : under or within the provisions of the law
synonyms LAW, RULE, REGULATION, PRECEPT, STATUTE, ORDINANCE, CANON mean a principle governing action or procedure. LAW implies imposition by a sovereign authority and the obligation of obedience on the part of all subject to that authority
Notice the term ‘controling authority’ And also ‘obligatory’. If you can ignore it without penilty, it’s not a ‘Law’ but a ‘Precept’. Treaties are at best a form of contract Law, only they have no obligations that are binding. You make a Contract with a car dealer to drive around in you shiny new hubmoble at x pounds per month, and stop making payments, there will be a price to pay. That is because the contract is enforced by a ‘controlling authority’.
A treaty is formal agreement between sovereign states and can be torn up at the whim of either state, without penality
There is no controlling suthority. There will never be a world wide controlling authority. To establish such a beast would require that ALL Nations give up their sovereignty. That will never happen. America will fightfirst, as will India, China, and most of the other 190 some nations onthis planet. As will yours. If someone is going to surrender sovereignity, why not Europe? When the Politiboro finishes it’s move to Brussels, you will already be half way there.
“International Law” isn’t real. It an orwellian attempt to create a ‘new socialist world order’ by stealth. It isn’t and won’t work. Socilists are only fooling themselves by thinking it will.
Right now the United States is lining up for a debate over reforming the UN or ditching it and creating something new. If a sovereign nation can decide the fate of the UN, it is, de facto, not a world wide controlling body. Please note that any treaties worked out under the UN auspices will automaticly get trashed when the UN goes down the tubes.
Yes, that IS international law. If a state signs a treaty it is bound to observe its provisions and must subject itself to the sanctions applicable for breach. It can withdraw by abrogating the treaty, of course.
If you cannot have international law without an international state, how can you have domestic law without a state? This question does not seem to bother libertarians, who seem to accept that a state is not needed to have law. Neither is an international state needed to have international law.
Stehpinkeln: Whatever. The real world doesn’t work the way you seem to think it does. All the linguistic pedantry you want to use will not alter the fact that states do in practice accept law between themselves and do submit to its requirements. That some think this is wrong does not change the fact of the matter. Get over it – the rest of the world has, and has been making binding treaties for CENTURIES. What’s your problem with this?
EG
Wrong end of the stick. You cannot have international law not because there is no ‘world state’ but because you do have nation states. All you do have is national laws, some of which are treaties. If you dislike a treaty that the state you are owned by signed, you can try to use politics within that nation state to try and get it un-signed. But that is not international law, that is national law.
International law on the other hand is a fictional thing that is waved around by the likes of Gerhard Schroder and sundry other Tranzi fantasists when some country’s leaders do something they don’t like but cannot actually do anything about, say for example when some other country’s military invades and overthrows a tyrant in Iraq. When this happens, some preposterous “International law” is invoked claiming that the rights of mass murderers to kill their own people without let or hindrance from other governments shall not be infringed.
The reality is that Saddam’s government is gone and anyone with eyes is pointing at Kofi Anan and singing “The Emperor has no clothes on, hahahaha!”
Well, yes. That’s what international law is. Note, however, that not all countries require a national law to be passed in order to give effect to the state’s signature on a treaty – in Britain, this is done using the royal prerogative.
International law has developed over the past 400 years. It is comprised of treaties which states sign (or not). When the treaty is signed by a state, that state is required to obey the relevant provisions. Some treaties have enforcement clauses (such as financial penalties in trade treaties, the right of the UN to authorise military force, etc), but the enforcement is done NOT by some international body but by the signatory nations themselves. This does not make it any the less law, it is simply law that is enforced upon the signatories by the other signatories. It’s a more voluntary process than national law, since a state can choose not to subscribe to a treaty or to abrogate a treaty it has previously signed (subject often to specified notice periods for withdrawal).
So, we have a body of law that is voluntarily accepted by independent nation states, any one of which can un-accept it later if it so chooses. It is enforced upon the signatories by their peers, without requiring the coercion of a superior power. Nice and libertarian, hmm?
EG
Euan,
While what you’re saying makes a lot of sense, you’re missing a major point, which is that the proponents of international law typically insist that it should apply to everyone regardless of treaty. For instance, there was much fuss about the Geneva Convention being applied to the treatment of Taliban prisoners, even though Afghanistan was not a signatory to the convention and the Taliban did not abide by it themselves. People also seem to think that UN resolutions are international law, which they aren’t.
The international law that you’re describing is not what doesn’t exist. What doesn’t exist is the system of rules that most people — including, sadly, certain world leaders who should know better — refer to as “international law” and insist that all nations must obey no matter what. If the problem were just treaties, we wouldn’t even be having this argument.
There is no international law of that type, and I’m not aware of any serious politician who says there is.
Taliban prisoners of the Americans, or prisoners held by the Taliban? If you mean Taliban prisoners held by America, then it is irrelevant whether or not Afghanistan signed the Conventions – America did, and should abide by them. You are not excused from your obligations just because someone else doesn’t accept them for himself.
Actually, in a sense they are. The UN is empowered to pass a resolution demanding (for instance) that a state stop doing a certain thing on pain of military compulsion. It derives this authority from the voluntary cession of authority from its treaty signatory nations.
Who, specifically? And what did they say?
EG
So what Mr Gray is claiming is that if I decide to murder someone it’s ok so long as I denounce my previous agreement to not murder anyone.
BTW, I thought a Libertian was socialist with a checking account. That would make a neo-Con a socialist with an overdrawn checking account.
Euan, you are wiggling like a gaffed fish, but the gaff is still firmly embedded. Without an enforcing authority, there is NO LAW, national or international. It’s called something else when there is no enforcing authority. You are the one playing semantic games by trying to steal the force and authority of law to apply to a lessor condition. Sorry, 1984 was required reading 50 or so years ago. The socialist pony has been pranced around the ring so many times it doesn’t impress anymore. Plus the half naked dogma on it’s back is getting a little long in the tooth and droppy elsewhere. No one is impressed, and there is a mutter in the crowd regarding refunds. Socialism needs to find a new pony and a somewhat fresher wench. Only it can’t, since it has become a religion, depending on Faith among it’s converts for survival.
Wouldn’t that piss off Marx, to discover his Socio-economic theory has turned into a religion?
> There is no international law of that type
Agreed.
> and I’m not aware of any serious politician who says there is.
I agree, but it’s not a politician’s seriousness that’s the issue: it’s their likelihood of winning votes and power.
> then it is irrelevant whether or not Afghanistan signed the Conventions – America did, and should abide by them.
Erm, no. The Geneva Convention is an agreement between signatories to behave in a certain way when waging war against each other. It has to be that way, since it makes fighting more difficult and less effective. To insist that it applies when fighting those who refuse it actually gives nations an incentive not to sign.
> Who, specifically? And what did they say?
For a start, Blair. I know that’s a bizarre example, but bear with me. Blair’s repeatedly stated position is that he did not breach international law by invading Iraq. The fact that he spent so long going back and forth to the UN and even persuaded the US to do the same is thanks to his belief that he may not act without appropriate UN paperwork. He believes that, despite the final UN opposition, the various resolutions over the preceeding years gave him the appropriate legal authority, without which he probably would not have acted. At the very least, even if Blair secretly thinks he broke international law, he thinks it is necessary to pretent otherwise in order to cover his arse — just as a guilty criminal would plead not guilty. For evidence of his opinions on this matter, switch on the TV at practically any bloody time at the moment. (God, I hate election coverage.)
Bush’s attitude — a simple refusal to recognise the authority of the court — is more realistic, in my opinion.
Add to that every world leader who not only wants to see the ICC created but states that it should be used to prosecute US forces even if the US don’t sign up to the ICC. That’s a very commonly expressed opinion these days. I’m surprised you’ve not noticed.
Euan is basically right in all of his points, but I’d just add that there are certain international norms (against aggression, genocide and torture in the criminal sphere and norms on good faith in treaty negotiation in the civil sphere, for example) which are held to be “jus cogens” or peremptory norms from which there can be no derogation.
The case for the defence at the Nuremberg trials was at least partly that Nazi Germany had signed no treaty promising not to kill the Jews and that genocide was not illegal under German law, so there was no tribunal which had standing to try the defendants. This case did not win (historians will recall); it was found that there was an international customary law from which there could be no derogation. This was important as it established that the Nuremberg and Tokyo tribunals were genuine courts of law and not kangaroo courts dispensing “victor’s justice”.
All of this, of course, fits into the common law framework that Euan is talking about. The point is that, ICC or no ICC, any armed forces (American, British or Iraqi) who commit war crimes are guilty of crimes and should expect to be sentenced for them.
Incorrect in principle, but anyway it is not the case that there is no enforcing authority. In the case of international law, the authority which enforces the law against an errant state is the collective power of the other states. The argument that international law cannot be law because it doesn’t work the same way as domestic criminal law is cretinous.
I find it somewhat odd that many libertarians contend that domestic law can operate without a coercive state if sovereign people voluntarily consent in advance to accept the decision of arbitrators or some such non-coercive, non-state mechanism AND AT THE SAME TIME assert that an almost identical voluntary agreement in advance between sovereign states is impossible and cannot be meaningful law. Which is it, guys?
No, it’s not. It is an obligation upon the signatory to behave in a certain manner in war IRRESPECTIVE of what anyone else does. The obligation rests with the signatory, and if his opponent doesn’t accept the same obligation that does not relieve the signatory in any way.
To argue that breaches of the Geneva Conventions in Afghanistan or anywhere else are acceptable because the enemy didn’t or doesn’t accept the Conventions is not a matter of principle – it is simply a (futile) attempt to justify egregious breaches of civilised standards by (in the case in question) the American state. In WW2, Germany carried out all manner of atrocities – why did the Allies not do the same thing? After all, Germany ignored the rules, so why didn’t we? Under your logic, this would be quite acceptable. The answer is that we did not do so because we accepted that reasonably civilised conduct in war is RIGHT, irrespective of what the enemy may or may not think.
I think you’re wrong here. Blair wanted a resolution for political reasons, not legal ones. In the same way, he had a vote in Parliament to approve the action, even though this is completely unnecessary under British constitutional law – Parliament does not control military operations and has no say over declarations of war or peace, since these are matters for the royal prerogative. It was purely political.
I think Blair wanted to show the world that the war was not a unilateralist act of aggression, and I don’t think he was looking for express legal permission to act.
It already is created.
I suspect it is probably inevitable that this will one day happen. However, the UN is not capable of standing up to the US and it is hard to see what it can do if the US simply says “no.” America is not the only country failing to sign up to the court, of course.
EG
Euan, that’s not right and you know it. I am aware that anarcho-capitalists call for what you’re mentioning above. I personally don’t understand how their ideal societies would function without becoming dystopias, hence I am not one. However, I am a libertarian and I believe – like most libertarians I’ve talked to – that some government is required to legislate, administer the law courts and run the military. People who admire this model are called Minarchists. Minarchism a very large branch of the libertarian tree. I’m sure you’ve heard of it. So a libertarian nation-state can absolutely have laws, as there *is* a state, albeit a very small, powerless (in areas where its brief doesn’t extend) nightwatchman state, whose job it is to enforce the laws it is able to make.
There is no equivalent in the international realm. Any courts to administer international law? Sure. Are they effective? Australia was summoned to the ICJ in the 80s due to the whingeing of some third world nation, and we simply didn’t front up to face the charges. What could the court do about it? Absolutely nothing. The ICC is looking like becoming an equally toothless tiger. It’s not a law if you can ‘opt in’ – or more pertinently – opt out of it. ‘International law’ is a commonly used term, however the word ‘law’ doesn’t fit, as stehpinken pointed out in his first post. ‘International convention’ is much more appropriate and semantically correct label for what passes as ‘International law’ today. And, as I’m sure everyone on this thread agrees, international convention exists. International law doesn’t.
It does. It just doesn’t function the same way as national law. But that doesn’t mean it doesn’t exist.
EG
Let’s make it as simple as possible, so the collectivists can not pretend not to understand. EG says international law is law enforced by some nations on some other nations. No. That’s war.
OK, so country A signs up to a free trade agreement. Contrary to the agreement, it imposes import duties on product X. The other signatories say A can’t do this, because it breaches the agreement, and ask A to stop. A doesn’t stop, so the others threaten to assert their right under the agreement to levy punitive duties on A’s other products. A sees the light and repeals its duties.
This is war? Less hyperbole, please, and more reason.
For A insert America, and for X insert steel, and you have an example that actually happened recently. War wasn’t involved.
EG
Euan – Forget the ‘national’ part – it doesn’t function as law, and that’s because it isn’t law. See stehpinken’s definition above. ‘International law’ is mistermed. ‘International convention’ is much more suitable.
The difference is important. Some people scream that international law (which doesn’t exist) must be followed. The danger is that they will eventually be successful in creating an international body that can, in fact, enforce international conventions. Then conventions become law. Voila, we have international law. I prefer not to think about it happening.
International law exists exactly the same way that the UN exists, it is a term of wishful thinking, of propaganda, of spin, of hot air but of little substance, little useful substance.
What EG says is correct in theory but in practice states do as they please, adhere to treaties when it suits them, invoke International Law mostly when they wish to score rhetorical points and accuse their adversaries prior to screwing them in some way.
It’s typical of the utopian way of thought of lefties: it would be nice if we had International Law (I agree) – so let’s declare it, and let’s declare we believe in it – and lo and behold: it exists. In the real world not everything is possible, but for utopians the rhetorical is the real, the only reality they grasp.
I have. It’s silly and betrays a profound inability to accept or understand reality.
And what is law but the codification of the conventions and customs of society? International law is the codification of the conventions and customs of relations between states. Same thing, different scale.
There is no meaningful difference.
A digression, but I think it quite probable that this will happen, and that it will be a logical progression of human social and cultural evolution. I think the sequence is something like this:
hunter gatherer tribes;
subsistence farming tribes;
organised agrarian societies permitting (although not necessarily resulting in) expansion and empire;
industrialised societies permitting (ditto) more aggressive expansion and empire;
development of nuclear techniques leading to a move away from organised warfare as a means of settling major (not petty) disputes between states;
weakening of the nation state as it becomes less effective at solving international issues
This is where we are now. Things could, I think, proceed as follows:
strengthening of multinational organisations in the pursuit of solutions to multinational problems;
cession of greater authority to multinational organisations from nation states, contingent on success of the multinational organisations;
further erosion of the nation state as economies and cultures become more globalised (and thus the decreasing relevance of the nation state);
erosion of the nation state’s interference in life as economic transactions become increasingly automated (and thus no need for, point of or utility in such interference);
gradual emergence of a global government on a federated model as it becomes easier to govern on a large scale because government needs to do less (and indeed is not able to do more because the economic power is increasingly machine controlled).
I think it will take perhaps a century to get there from here. But however long it takes, and even if we go down a different path than that shown, I think it’s inevitable at some stage. I don’t think it’s necessarily a bad thing, although as with any government model it can be good, bad or indifferent.
EG
I should add the last two (somewhat tongue in cheek) stages:
1. abolition of money as all necessary economic production and distribution is performed by machines and thus there is no further utility in the formalised bartering of human labour;
2. communism
EG
I don’t believe the definition Stehpinkeln provided is silly. It appears to be lifted out of a dictionary. Anyway, yes, law is the codification of customs and conventions of society. However, you omit the critical factor of enforcement that makes up the definition of ‘law’. If you break the law, you are prosecuted by the state. You don’t sign an agreement (treaty) with the state when you reach a legally responsible age stating that you will abide by the law. You can’t inform the state that the legal requirements they’re imposing are too inconvenient and you wish to withdraw yourself from their reach. Law is absolute, and covers everyone within the borders of the nation-state (bar diplomats and some leaders, okay) whether they like it or not (ignoring some of the more unsavoury regimes around the world). Is this how what you call ‘international law’ works in the international arena? No. It is how you described it – states entering into agreements and withdrawing from them at their liberty. You can’t explain away that critical difference by saying ‘It [international law] just doesn’t function the same way as national law’. You’re right, it’s completely different and IT IS NOT LAW.
I think this is a parenthetical problem.
{International law} exists.
International {law} does not exist.
Maybe we should hyphenate it.
> This was important as it established that the Nuremberg and Tokyo tribunals were genuine courts of law and not kangaroo courts dispensing “victor’s justice”.
They were both.
> And what is law but the codification of the conventions and customs of society?
Law is far more than that. Law frequently overturns, suppresses, or destroys the conventions and customs of society.
Squander Two – We should stop calling it international law. If we call it that, people actually start believing it’s illegal for nation states to do certain things which clearly aren’t “illegal”, ie. the “illegal” war on Iraq. Absolute rot. What concerns me about this perception of illegality is the sort of structures said people may try to build to deal with the rogue nations – namely, the US.
suffering
Exactly. It’s not so important to tranzies that ‘International Law’ is, in reality, non-existent. The point is to repeat the ‘International Law’ mantra over and over and over. Let it seep into minds and pervade the arguments then, one day, it becomes universally accepted and you have a bulwark against the very notion of national sovereignty.
Enforcement is a critical aspect of law – literally, one must be able to FORCE compliance in extremis. Relying on persuasion, custom, self-restraint etc is useful, but it is not law. If you have law, on paper, governing a society, but large and powerful sections of that society can flout or dispute the law effectively, then the law does not effectively exist to the extent that it can be successfully disputed and resisted despite the best efforts of government.
All advanced nation states can effectively implement their laws on their own population, if they choose to. International “law” does not have this characteristic – if the UN objects to something, but a major military power disagrees, then the UN simply does not have the forces to enforce the law effectively. All major nuclear powers are effectively beyond the scope of international “law”. Therefore the “law” does not really operate, instead conduct is regulated by convention & custom – in other words, compliance relies on persuasion, pressure, diplomacy, cajoling etc, but NOT on force. It is therefore not law, but a state of quasi-anarchy. International “law”, because the use of force is heavily restricted, is roughly equivalent to the “law” in a failed state like Somalia – it exists on paper, but in reality there are wide areas where no such thing exists or applies.
If the US, China, or other powerful country refuses to acecpt “international law”, and the ICJ/UN prosecutes, what is going to happen? Quite simply, international law will be shown for the chimera it is. If you can’t enforce the law, then the law does not exist. If some form of world federal government with its own military forces comes into existence, then there may be some steps taken towards the formation of international law. However, in a world of nuclear weapons, states such as the US, EU (in future), China, Russia etc will remain laws unto themselves.