By Kent R. Kroeger (Source: NuQum.com; August 3, 2022)
International law consists of rules and principles governing the relations and dealings of nations with each other, as well as the relations between states and individuals, and relations between international organizations. (Cornell Law School)
The overarching goal of this blog is to highlight analytic tools and data that are available to everyone. Today, however, I am going off-script to address an issue that is close to my heart and represents an early part of my career.
I taught a survey class in International Politics and Law at the University of Iowa almost 30 years ago, and though I was an only marginally effective instructor, my students were exceptionally engaged on the question of international law.
Does international law actually exist?
One student in particular, who served in the Army reserve and who had been deployed on a United Nations (UN) peacekeeping mission, aggressively disagreed with the contention that the UN, or any other international organization, represents a ‘legal authority’ that can sanction or punish a rogue nation independent of the will of a major world power (i.e., the U.S.).
The student offered this observation: “If I steal a car, I broke the law and will be arrested by the police. What police force stops me from stealing a country?”
“The U.S.,” answered a student.
But the U.S. is not an international organization. It is a nation-state, a powerful one at that.
Current events have brought this issue to the forefront: Vladimir Putin claims Ukraine is historically part of a greater Russia (not true), and the Communist Party of China argues that Taiwan is a breakaway province (true) that is inseparablypart of the People’s Republic of China (not true).
What international laws validate Russia and China’s claims of sovereignty over Ukraine and Taiwan?
The answer is that there is no such international authority. Historical claims of sovereignty, like Russia’s and China’s, are feckless and impotent separate from their military and diplomatic ability to acquire those territories.
Only nation-state power determines national boundaries. There is no international body that governs these definitions. Only hard and soft power can decide what constitutes an independent nation-state.
The informal rules that govern the definition of a sovereign nation-state have not changed since the Peace of Westphalia in 1648, which recognized the inviolability of nation-state borders and endorsed non-interference from external sovereign states in the domestic affairs of individual sovereign states.
This latter aspect of Westphalia has been violated many times over. Today, powerful countries interfere directly in the internal affairs of weaker countries on a daily basis — and there is no international legal authority that can stop this.
As to the former impact of Westphalia, it remains true todaythat independent nation-states exist because their governing authority controls ‘lethal’ power within a definable national boundary, and most countries (particularly powerful ones) recognize that control.
That is what makes a ‘legal’ nation-state. Nothing more, nothing less.
Israel has understood this reality from its inception. And, today, the only barrier to Israel annexing the West Bank is their acknowledgement that the international community will not accept such a move.
Set aside your media-fueled belief that international law stands against Russia’s control of the Donbass region of Ukraine or China’s claim to Taiwan: The reality is that nation-state powers like the U.S. will decide those outcomes.
International law is a fiction.
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Addendum: What about the Nuremburg trials?
Since posting this essay I’ve had a number people push back with valid questions: What about the Nuremburg trials after WWII? And what about the International Court of Justice (ICJ) or the International Criminal Court (ICC)?
Are these not concrete examples of international law in action?
No, they are not. They are fundamentally dependent upon the cooperation of nation-states for their legitimacy.
Let us start with the Nuremburg trials. The charter that created this tribunal limited the jurisdiction of the court to Germany’s actions in World War II, largely because the Allied nations (U.S., U.K., France and Russia) did not want to face legal challenges to their actions during the war.
The Nuremburg tribunal was a creation of the nation-states that won the war. It was in no way a legal tribunal independent of the nation-states that created it. It was law determined by the victors in WWII.
The ICJ is a more interesting example. Is it an international judicial authority that can make judgments against nation-states, or individuals within those nation-states, independent of the recognized sovereignty of those nation-states?
The answer, again, is an emphatic No!
The ICJ is the principal judicial organ of the UN. It was established in June 1945 by the Charter of the UN. It is, at its inception, a product of nation-states entering into a multilateral agreement. Its authority is solely dependent upon the nation-states that agree to its powers.
The ICC is similarly a product of nation-states. On 17 July 1998, the Rome Statute of the ICC was adopted by a vote of 120 to seven, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen.
The ICC’s authority is completely dependent on the nation-states that support it. Subsequently, the U.S. routinely denies the authority of the ICC.
In contrast, if the U.S. government wants to prosecute a U.S. billionaire for wrongdoing, the billionaire cannot unilaterally declare they are not subject to U.S. law. They must, instead, defend themselves in a U.S. court of law.
That is why international law remains a fiction compared to the actual legal authority of a nation-state.