Wednesday, June 08, 2005
Neo-Neocon on International Law
I've been having a few ongoing discussions online (most notably at The Indepundit) in re international law. My primary thesis usually goes like this: International law is a cute idea, with very little application in reality. People (especially people in Western democracies) like to analogize: the rule of law works quite well here in the United States, so why can't it work on an international level?
The flaw in such reasoning, as far as I'm concerned, is that the United States has an overarching authority (the U.S. Government, which can enforce the laws); there is also accountability both in the making of laws (Senators and Congresscritters are, at least in theory, accountable to their constituents) and in the execution thereof (we can recall judges too, although we rarely do, and judgements can be appealed and/or overturned).
International law, by contrast, has none of this. Sure, the UN can claim to be a "world government" if it wants; it can also claim to be the rightful heir of the Holy Roman Empire, if that'll make Kofi Annan happy. But if the UN's decisions are not backed by force, then those decisions have no weight, and need not be taken seriously. (We've seen plenty of that in recent years.)
The same applies to the International Criminal Court at the Hague. Not only do they have no means of enforcing their decisions, they also have no accountability to anyone, either for their decisions or for their interpretation of "international law". (Who gets to write these "international laws", anyway? Where does one go to repeal them?)
What little we do have, in the international arena, is a collection of treaties -- agreements entered voluntarily between national governments. They are backed by force, in that a government can go to war if a crucial treaty was violated. But that's not at all analogous to the system of law recognized in the United States; it's more like a rational anarchy. (It's also worth remembering what Charles de Gaulle said about treaties: "Treaties are like roses and young girls. They last while they last.")
Neo-neocon has some interesting ideas on the subject:
International law is a beautiful idea, but it can work only with the consent of the governed. Ideally, all nations would hold hands and sing "Kumbaya," and then international law would function seamlessly. Short of that, the "law" has to have the "order" part as well--the teeth, as it were. And that requires force.By all means, read the whole thing.
All law functions that way. If there were perfect consent (hardly possible), then force wouldn't be needed; if enough force is present, consent isn't needed--but law is most effective and humane when both are present, which they ordinarily are. The international law of war, however, runs up against a consistent failure to have either. I can't imagine a realistic set of circumstances under which that lack will be remedied any time soon--or perhaps ever.
Another analogy that occurs to me, by the way, is one I usually only use when talking to computer-weenies like myself. Think of government as a multitasking operating system, responsible for keeping many computer applications running smoothly without interfering with each other. In the early days -- say, the bad old days of Windows 98 and previous -- we used to talk of pre-emptive multitasking vs. non-preemptive multitasking... which was a fancy way of saying that either the operating system had control over the applications, or it didn't.
In a non-preemptive system, the operating system is just another program, like any other; and if the operating system says, for example, "Hey, Microsoft Word, you're hogging too much memory and too many file handles; release some to the general pool", MS Word could effectively reply, "Get stuffed". (This happened a lot under Windows 98, Windows 95, Windows 3.1, and so forth -- and, ironically, Microsoft applications were often the worst offenders.) In a preemptive system, however, the operating system has force and authority, and it can take resources away from a misbehaving application, or deny it requests for more resources. It can even unilaterally close a misbehaving application.
The analogy should be clear. The rule of law in the United States is analogous to a preemptive system, in that there's an overriding authority to enforce order if necessary. The international arena, on the other hand, is analogous to a non-preemptive system, in that different countries grab what they can, and issues are resolved -- to the extent that they're resolved at all -- by grudging negotiations among nations, with no overriding authority to force negotiators back to the table.
It's pretty well established, by the way, that preemptive systems are much more stable than non-preemptive ones. (This is also backed by common experience -- ask any Windows 98 user how often it crashed, compared to Win2K or Windows NT.) But we didn't have preemptive operating systems until we had hardware to support them; early Intel microprocessors didn't support the notion of different programs having different levels of authority, which is why we had to suffer through non-preemptive systems in the first place. (At the time, is was the best we could do.)
And similarly, it might be pleasant to act as though a World Government existed. But the fact is, it doesn't... and pretending that one does can only work so long as everyone pretends together, and nobody breaks the rules. It only takes one Saddam, or one Kim Jong Il, to show the farce for what it really is.
Maybe one day, we will have a World Government, and a World Army (with all national armed forces subservient to it), and a World Court with globally binding and enforceable decisions, and so forth. It won't be any time soon, though... and it sure won't be the UN and the ICC.
UPDATE: Daniel T. reminds me that, while preemptive multitasking operating systems arrived later than the non-preemptive ones, it wasn't problems in Intel's architecture that caused it. Versions of Unix, for example, were doing preemptive multitasking on 386 machines in the early nineties. (The problem with Windows wasn't the Intel architecture, but rather the internal design of Windows, which in turn was intended to run on top of DOS... which is like designing a hot sports car to run on twisted rubber bands. Windows NT and Windows 2000 solved the problem -- and introduced true preemptive multitasking -- by junking DOS, and about bloody time too.)
I concede the point, and apologize for the error, but I think the analogy is still valid. There's a world of difference between a roomful of equal players -- say, a children's playground with no adult supervision -- and a similar group with a clearly-defined overriding authority (say, the same children in their classroom, with a teacher who's quite willing to send trouble-makers to the principal's office). Ditto for non-preemptive vs. preemptive multitasking systems, or the UN vs. the American government.