Earlier this week, the Huffington Post published a column discussing the War Power act, and the fact that the US is now militarily engaged in a large number of countries, including troops on the ground in Pakistan.
Setting aside the domestic concerns about the president’s ability to unilaterally order strikes in foreign countries, this admission by Defense Sectary Leon Panetta illustrates just how ineffectual international law has become.
There were high hopes, particularly after the fall of the Soviet Union, that the world was about to enter an unheralded period of peace and understanding. Francis Fukuyama published a now famous book on the issue - The End of History and the Last Man - arguing that the world has now succumbed to liberal democracy.
With most major governments already buying into the system (I guess we’re just supposed to forget China), it was thought that these nations would be on the same page, willing to apply to the international system the government system that had become so popular around the world.
But with the resurgence of Russia, the rapid rise of China, and the declaration of a war on terror from the United States, international law quickly took a backseat to the more traditional power struggles that played out between the bigger countries with proxy battles around the world, Afghanistan and Pakistan notably.
Now we find an international system that has little if any interest in abiding by international laws and regulations. For example, China is aggressively gaming its currency (good explanation here), which is controversial concerning its legality with the World Trade Organization, but uncontroversial among economists who know that China is gaining a very unfair advantage.
But nobody is going to do anything about it because the current world economy is too fragile to risk a major trade war, however much some want it.
Even the piracy bill ACTA (Anti-Counterfeiting Trade Agreement) has had its share of controversy, with its European Parliament Monitor resigning over how the bill was passed.
ACTA represents exactly what international law has become - an arena for governments to band together to pursue their interests by creating legislation that can act as leverage in future disagreements. It is less a series of laws than a group of poker chips that can be played in the future to pressure countries when one wants something from the other.
In what might be the most extreme example of international bargaining to date, Greece may be forced to give up control over its national budget to European leaders or face default on their government bonds. Now that’s some legal coercion, absolutely stunning in its depth. Greece will essentially be a legally occupied company with no voice in the matter.
Of course, the US is hardly innocent in these shenanigans. One only has to look at its detainment of “combatants” in Guantanamo to find a serious violation of laws that the US helped spearhead.
And who blames any country that pursues its own interests in these manners. The US, which admirably tried to keep countries in line with the soft power of norms, pressure, and diplomacy, immediately abandoned laws that it expected everyone else to play by. And if the world’s most powerful country is not going to set an example, then what’s the point?
Laws within nations work because the government has control over the use of force. Before 9/11, the US had that control and exercised caution, or at least discretion, when involving the military abroad.
This was also true in the international system. Countries coordinated to make sure military force was used in a lawful manner. But the war on terror meant all bets were off. The US had established that the use of force was not under international law with the invasion of Afghanistan and Iraq.
And with no coordination of military force, international law was essentially toothless, leading to our current situation. It was once in the best interest of countries to abide by laws, either through pressure, punishment, or force.
Until the US -- in harmony with Europe, China, and Russia -- can reestablish a coordinated effort to normalize the use of force and the rule of international law, countries will (and should) continue to pursue their own interests.
Meaning that, with rapid globalization intertwining the economic fates of many countries, there is a good chance that governments will continue to disregard international law with few if any consequences.