I have always viewed the idea of international law with healthy scepticism, without being drawn into the fatal delusion of realism. Over almost four decades of closely studying these things I have never quite known whether international law referred to an actual body of laws that had passed through a legislature, followed up by monitoring and enforcement, or whether it referred to international “rule of law”.
None of this scepticism or personal incredulity should be seen as traducing the work of, say, the International Criminal Court (ICC), or dismissing the General Agreement on Tariffs & Trade (GATT) that serves as the legal basis for global trade. While my scepticism in this particular case sits uncomfortably close to more conservative politics, my understanding is that discussions about international law place too little emphasis on power, dominance, inequality and morality. It leans on the false belief that “everyone is equal before the law”.
Some countries, using their powers of influence, dominance or moral sentiment, have quite successfully crafted “international laws” to suit their own purposes. For instance, when the Rome Statute of the ICC was drawn up the US drew heavily and disproportionately on its intellectual community — far more than what was available to poorer states — to weaken the statute.
In the corners and corridors of the diplomatic gathering where the statute was finalised in 1998, the US entered into bilateral immunity arrangements with poorer countries (among about 160 in attendance) that in effect prevented the ICC from prosecuting Americans. The US is at least consistent — the Americans, and the British, for that matter, also shielded their citizens from the Japanese legal system during the Meiji era, notwithstanding that it was an imported European legal system.
The US also refused to support treaties on climate change, or that banned landmines as part of the Mine Ban Treaty of 1997. The justification was that banning landmines would go against the “national interest” of the US. It also “refused to enter several human rights treaties, and it has entered others only subject to reservations that ensure that they do not change American policy. It led the illegal intervention in Kosovo,” conservative American legal scholars Jack Goldsmith and Eric Posner wrote almost two decades ago.
This is what you get when one group of people, or a country, reaches dominance and has the power to discipline and punish other groups. I therefore agree with the more conservative position that “international law has no life of its own, has no special normative authority; it is just the working out of relations among states as they deal with relatively discrete problems of international co-operation”.
And therein lies the rub. Precisely because there is no normative authority there is no effective world government, and international institutions have been captured. Powerful countries will always determine what is important. This was what I have realised from studying 45 years of trade negotiations on the GATT.
It provided substance to the call by Harry Truman’s secretary of state, Dean Acheson, for the US to find countries that “are willing to collaborate [across] the growing numbers of international institutions, governmental and nongovernmental”. No less seriously, in his study of the 2008 global financial crisis Raghuram Rajan, a former chief economist of the IMF, made reference to “excessive influences” in public policymaking, and about “cognitive capture” that is intrinsic to global financial institutions. This I would extend to the global political economy in general.
From this vantage point, a veritable panopticon, the most powerful state presents itself as indispensable, able to “see further than other countries into the future”. This is not an “anti-American” sentiment. This global panopticon functioned when Britain, Spain, the Netherlands and Portugal “ruled” the world over the past four or five centuries as well.
It does not help when any prevailing crisis, invariably a child of preceding crises, is seen as an isolated incident or an aberration. We have a situation, then, when the most powerful voices, the most powerful forces (political, military, financial) assume the power to determine what is important, and what should be swept under the carpet.
What is important is then not considered in the context of international law, such as it is, but purely by who has the power to make proclamations, and whose morality tale rides on “material and political preponderance”.
It is at this point where I part ways with conservatism, though I do lean on crusty old Thomas Hobbes, he of the 17th-century starched-white collar English aristocracy, who would have us believe, quite correctly, that justice is more likely in the presence of a strong government. Sorry Mr Keynes, a world government remains illusory.
And, roping in other thinkers from our deep history, in the absence of a government, and with international law remaining ill-defined, respected and practised at the whim and caprice of the powerful on a plain of shifting ethics, the powerful can switch morality at will.
Out of these conditions might makes right, and “the strong do what they can and the weak suffer what they must”. All of which makes it hard to swear allegiance to international law, or even imagine global equality.
• Lagardien, an external examiner at the Nelson Mandela School of Public Governance, has worked in the office of the chief economist of the World Bank as well as the secretariat of the National Planning Commission.
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