The breaking up of international law

There is little doubt that Russia broke international law with its takeover of Crimea and the rushed referendum that did not give citizens time to have a deep think on its implications (as they did in Scotland).

It is not only observers in the West who say this, but also a good number of Russians — I met a cross section of them in Russia on my recent visit.

Nevertheless, the Kremlin is right to say the West has done this quite often too. It wrongly interpreted a unanimous UN Security Council resolution, authorising military intervention in Libya to save lives, as a mandate to strafe and bomb the forces of President Muammar Qadhafi.

Thirty years ago, the US mined the harbour of Nicaragua’s main port during the country’s civil war.

The World Court condemned the US for breaking international law.

In between these two events, the US, along with the UK and France, went to war with Serbia without the backing of the Security Council.

Later the US and the UK did the same in Iraq, with devastating consequences that upset the whole balance of relatively peaceful power in the Middle East. (The intervention in Afghanistan following September 11 was approved.)

On Tuesday, the US and some Arab allies began bombing the Islamic State inside Syria without Security Council approval.

International law has a long pedigree, going back to the 17th century Dutch jurist, Hugo Grotius.

Over centuries, it has been codified in various international treaties and by the rulings of the World Court. It is often quoted by Western powers — as with the recent argument over the possession of small islands in the South China Sea.

But at various times, both the US and Russia equivocated over whether they truly believe in international law.

A few years ago, a debate in the Prospect magazine between two high-powered American lawyers threw into relief the question of whether the US was obligated to follow international law and human rights standards.

The argument was primarily about the tensions between the US and Western Europe over the role of international law.

Yale law professor Jed Rubenfeld put this down to the immediate aftermath of World War II.

“For Americans winning the war was a victory for US nationalism, whereas Europe reacted against the excesses of nationalism that in Germany had precipitated the war.”

Thus, for post-war Europeans, the point of international law was to address the problem of nationalism.

But in the US, the belief is that internationalism is for the rest of the world, that what Europeans would recognise as international law Americans already had.

The notion that US practices held constitutional under its bill of rights might be said to violate international law is not a conceptual possibility.

It was pressure from this viewpoint that led to a 30-year delay in the US ratifying the genocide convention and the refusal today to join the International Criminal Court (ICC).

Professor Anne-Marie Slaughter, ex-president of the American Society of International Law, took issue with Rubenfeld’s arguments.

She believes that his account “of both American and European constitutionalism is historically inaccurate and politically naïve”.

Rubenfeld, she said, ignores Article 6 of the US constitution, which declares that “treaties are the law of the land” and so trump government laws.

The US must continue to believe in the extension of international law because it serves all nations’ long-term interests.

“If other nations no longer believe that the US will honour those rules they will no longer agree to bind themselves, and then we will slide from coalitions of the willing to chaos.”

Influential American political scientist John Ikenberry has argued that the US should continue to support international law because “it is the only way that the US can reassure its allies that it is willing to restrain its own power in the service of common goals, thereby increasing that power by diminishing the incentive of either allies or enemies to find a way to balance against the US, which would lead to more self-conscious and antagonistic power blocs”.

The truth is that international law is in disarray. 

By a continuous policy of going ahead with interventions without consensus in the Security Council, the US, Russia, Israel, France, the UK and now some Arab countries undermine international law.

International law is like a rubber band — if you stretch it, it does not return to its original shape.

The US, China, India, Israel the Arab countries and Russia (the latter two have signed but not ratified, with the exception of Jordan and Yemen) should take another look at joining the ICC in particular, meant to try those who commit war crimes and crimes against humanity.

Nothing would show more that they are willing adherents to the expansion of international law — an important tool for more peace in the world.