Author Archive for
Seth Weinberger

The UN, International Law, and Hegemony; Part 1

by Seth Weinberger

Last week, US Ambassador to the United Nations John Bolton claimed that the UN was demonstrating its irrelevance by adopting several resolutions calling on Israel to withdraw from the West Bank and the Golan Heights. Bolton argued that the resolutions were undermining the real progress being made in the peace process, and only served to advance one narrow position and to alienate Israel.

For a scholar of IR, this demonstrates the fundamental problem with international law: the bodies charged with interpreting and enforcing the law have little to no ability to enforce it. While the UN is most capable of passing symbolic, non-binding statements and resolutions, when it comes to actually enforcing the dictates of international law, it has few teeth. Rwanda is left to slide into genocide, Sudan continues to allow the janjaweed to rape and pillage while sitting on the UN Human Rights Commission, UN peacekeepers stand by and allow the Serb army to massacre the inhabitants of Srebrenica, and Kosovo is only defended thanks to the good graces of NATO.

However, that is not to say that international law has no purposes or power. It does. But not in the sense that domestic law does. International law much resembles a domestic society with a judiciary and legislature, but no police force. There are bodies that can create law and interpret it, but not to arrest law-breakers and punish them. The power of international law rests mostly in the phenomenon of legitimacy. States that conform to international law develop a characteristic of legitimacy that makes it more likely that other states will cooperate on other issues in the future, which can contribute to the creation of a legalistic international community.

Such a community still needs a police force. Lately, the US has filled this role (although leaving enforcement up to a posse means that the law will be enforced capriciously), but there is a growing movement towards internationalizing the enforcement mechanism, such as in the ICC. But, so long as the international community lacks a communal understanding of justice, fairness, equity, interest, security, and all the other concepts that go into a common identity and legal understanding, it is impossible to imagine states ceding their sovereignty to an international body with enforcement powers. Even the enlightened, post-modern institution that is the EU is running into problems with efforts to enforce its deficit rules on France and Germany, or attempts to cut farm subsidies (which contributed to the rejection of the EU constitution by France).

So, perhaps hegemony is a good thing for international law. While it may be true that the US is so powerful that it can pick and choose which laws to follow and when, it also must be recognized that without US power, there would be even less compliance with international law than there is now. That’s not to argue that US is fair in applying the law, or even always capable of solving every problem (as with N. Korea). But, when the US stays out, as it did in the early days of the Balkans crises or the initial stages of negotiations concerning the Iranian nuclear program, there is little hope for solving the really difficult problems. US hegemony may be the best guarantor of international law there is.

Differing Conceptions of Justice

by Seth Weinberger

Hello! First, thanks to Julian and the rest of the Opinio Juris team for inviting me to guest blog here for a while. I’m very excited to represent the IR perspective, and hope that I can bring something interesting to the table.

I’d like to start off by addressing one of the more interesting and relevant questions: How is justice conceptualized in international politics and law? Waking up this morning, I’m greeted in the morning news by pictures of Saddam Hussein sitting in the dock. This amazing sight raises the question (or at least it does for me) as to what the purpose of the trial should be. At first glance, the question seems to have an easy answer: to provide justice. But that begs the question: What is justice? There are always different formulations of justice working simultaneously in any trial, and while these formulations may sometimes coincide, they do not always. For instance, procedural justice (the right to a fair trial, the right to be free from unwarranted search and seizure, etc.) can obviate the demands of retributive justice (vengence, punishment, etc.). Now, in a domestic society, where the risks any one person poses to the society as a whole are low, procedural justice tends to dominate. That is, when the established procedure is violated, a person goes free, even when it is clear that person may be guily and deserving of punishment (and no, I didn’t say O.J.).

Which conception of justice should “win” out in Iraq? Should Hussein be given a fair trial at all costs, to demonstrate the superiority of the rule of law? Such an approach could go a long way to establishing the legitimacy of the Iraqi regime, and perhaps even to placating the Sunni part of the insurgency. However, if anyone can be judged guilty without trial, it must be Hussein. Would allowing him to walk free because a sufficient evidentiary chain linking him directly to massacres and genocide could not be established be “just?” Would it undermine the faith of the Shiites and Kurds that a government can protect them against a Baathist resurgence? Executuing Hussein (the likely outcome) will likely be a critical step in creating an emotional release valve that makes it possible for the Shiites and Kurds to move forward and permit the Sunnis to participate in the New Iraq.

The approach of the international community writ large seems to prefer the emphasis on procedural justice. I’m thinking not only of the pressure placed on Iraq to move the trial out of Iraq and perhaps even into an international tribunal, but also of the trial of Slobodan Milosevic. In its attempt to provide Milosevic with a fair trial, the ICTY has now dragged on for several years, and the end does not appear to be in sight (as Julian has previously pointed out). Many IR scholars believe that the odds are decent that Milosevic will walk, mainly because of the difficulty in proving the chain of command linking his orders directly to genocidal behavior or war crimes.

Is this really in the best interests of the international community, let alone the Iraqi people? I’m not so sure, and I don’t know what the answer to this problem should be. However, it is clear that sometimes “justice” gets in the way of politics. Should Pinochet go on trial if it makes it less likely that future dictators will accept immunity agreements to step down and allow a democratic tradition? As for Hussein (and Milosevic as well), my sense is that is more important for Iraq, and for the international community, that he be punished for his crimes than he be provided procedural justice.