I would like to indulge in a rant about alternatives to the current system of international law. Some of this I have mentioned before, as it is an idea I have mulled over for some time.
Basically, the current system does not work. The situation with Iraq clearly demonstrates this. I think that it does not work because of contradictions basic to the notion of “international law” itself. These contradictions render the operation of a thing known as “international law” unworkable, unjust and ineffective.
What are the contradictions? They are found in the idea that a system of law between nations can work in the same manner, and with the same terminology and expectations, as the law within a nation. Ideas like using UN resolutions as a “source” for international law as if they were statutes, constituting a World Criminal Court as if it was a national court, and using the custom of nations as if it was case law. None of this really works, because of one simple fact - there exists no sovereign authority to impose any of it on anyone. A national court or system of laws is based on the idea that the sovereign will impose the law on law-breakers. In the international sphere, this does not exist. The closest one comes is the UN Security Council, which rarely can agree on whether to enforce the “law” or not - we are seeing that right now. So the “law” is flouted. And considering the quality of UN “laws” or rather source materials, this is no surprise. After all, the UN is made up of numerous unsavory states (and in the general assembly each have the same vote - from tiny little dictatorship states to huge powerful democratic ones), and the Security Council is just the last vestiges of the victors of WW2 plus some random additions. Not a sensible way to govern.
Now, many others have come to the same conclusions, and usually end up calling for an effective world sovereign authority to enforce the law. A utopian ideal, but would anyone really like to see it happen? Maybe it will eventually, when all the world is democratic and we can directly elect such a figure. I won’t hold my breath.
Rather, I think that “international law” uses the wrong models. Originally, the model was contractual - based on treaties and the like. Later, the model has been statutory and even criminal law as well, with the addition of the UN. All of these models work best (indeed at all) when there is real force backing it up. And in a world without a sovereign, that force must be war.
Yet war is highly undesireable, and indeed “international law” is a way to prevent the use of force.
My thesis is this: in a world without sovereign authority, models taken from law that is premised on the existence of sovereign authority (like the common law, or the civil code) are ineffectual. While legalism may be of no help, maybe anthropology and history can be. What is needed as a model is a system taken from a time and place where the sovereign was weak or non-existant.
One such system is the ancient Anglo-Saxon process known as “oath-swearing”. In that system, when someone had committed a wrong in another’s opinion, he would gather all his friends, relatives and supporters together at a meeting of the community. His opponent would do the same. Each would make a speech, explaining their side. Each supporter would “swear” that the person was innocent (or guilty) of wrong-doing. The oath of an important person was considered more valuable than that of a lesser person. The oaths would be tallied in accordance with their value, and the person with the most oaths on their side would win.
The point is, the system did not produce “justice”. What it produced was a relatively accurate public account of how much support each person could command in the case of a feud. To defy the outcome was to invite a feud that the loser would likely lose (especially as some of his supporters may use such defiance as an excuse not to come to the person’s support). Moreover, might did not automatically mean right, because some people would be unwilling to swear oaths if they would incur public shame by swearing obviously falsely.
The main benefit of this system was that it was reasonably effective in preventing violence, by spelling out in advance and in public the consequences of violence.
A variant of this system would provide clarity to international law. Each country would be graded, as accurately as possible, for its power (military and economic); contests having implications for war and peace would be decided by amount of support, pure and simple. The point is that this would be done publicly, for all to see, which would mean that the supporters would have to carefully consider the future effects of their actions.
So - for and against?