Two Flavors of International Law

February 12, 2014–Director James Clapper is at it again, this time declaiming his gospel of hysteria to the Senate Armed Services Committee. But that’s for another time. Today I want to focus on law, a little bit domestic, mostly international. In the United States the Founders–those who hammered out the Constitution, most of whom had participated in the American Revolution–and their successors–giants of political philosophy, politics, and law–were fond of saying that America would be a land of individuals under law. There have been various elaborations on this theme–that no one is exempt from the law, that everyone is equal under the law, that the rights of minorities are protected by the law, that laws restrain both the actions of a despotic majority or of an overweening executive power, etc. Officials, from the president to the very spooks who have been of such concern recently, to the soldiers, to the lowest of federal magistrates, swear an oath to uphold the Constitution–the law–not the powers of their agencies, their bosses, or any other leader, including the president.

United States law acts in tandem with international law, and has done so from the very early days of this republic. The U.S. fought a quasi-war with France in the 1790s, and a real one with Britain from 1812 to 1814–which bicentenary the country is fitfully observing right now–to establish norms of international law. At the end of World War II the international trials of defeated enemy leaders and military commanders at Nuremberg, Tokyo and elsewhere were explicitly intended to enforce international norms against the conduct of aggressive war, conspiracy against peace, crimes against humanity, and war crimes, including the use of certain weapons.

International strictures include customary law and treaty law. Around that same time the International Court of Justice, created by Article 93 of the United Nations Charter, was established to enforce the law. Under the United States Constitution treaty law forms part of the law of the land and American officials have a legal obligation to enforce it. The ICJ has since been supplemented by juridical panels specifically intended to prosecute offenses in Bosnia and Rwanda in the 1990s, and a globe-ranging International Criminal Court for Nuremberg-type offenses. One of the most creative legal initiatives of recent years has been the increasing willingness of national courts, for example Chilean courts (against Augusto Pinochet, then in the United Kingdom) or Spanish courts (against a variety of human rights abusers) to move toward enforcement measures that may require action across borders.

At the same time it appears that the Great Powers have increasingly been moving in the opposite direction. The United States denied the jurisdiction of the ICJ in 1984, when Nicaragua sued the U.S. over the CIA-directed mining of its harbors. This was despite the fact the United States numbered among the original founders and supporters of the ICJ and the international law movement. The U.S. has since then resisted ratification of the treaty creating the International Criminal Court, which would have jurisdiction over such things as American unleashing of an aggressive war against Iraq or–dare we say it–conducting a drone war that kills numbers of individuals in countries with which no state of belligerency exists. When Italian and German courts indict CIA officers for criminal acts, Washington also acts as if it has no legal obligations. When the president of Ecuador was returning to his country following a state visit to Russia, the U.S. violated international conventions on diplomacy and air transit to make sure the Ecuadoran leader was not secretly harboring whistleblower Edward Snowden on his aircraft.

Meanwhile the United States relies on international law when it files suits, for example, with the World Trade Organization, over tariff discrimination, perceived unfair preference on exports or imports; the extradition of individuals for trail. Washington has denied foreign efforts to evade legal judgments, notably in the Pan Am 107 case, where an indemnity was levied against Libya. And the U.S. has passed laws that permit American authorities to pursue wanted suspects into foreign lands–in much the same fashion as Chilean or Spanish courts extending their tentacles across borders, except that in the U.S. case the federal government actually has capabilities to act. “Renditions” as we know them today began with actions to apprehend suspects abroad back in the 1990s.

To reframe the picture, the net result is that a Great Power insists on international law when this seems to its advantage and denies its application when this might work against it. This is not just the case with the United States. The latest example is the People’s Republic of China, which is demanding that Spain nullify the judgments of Spanish courts that have voted arrest warrants against former Chinese leaders for China’s actions in Tibet. If nations can be considered people–as we deem corporations to be people–then all people are not equal under the law.

This double standard ought not to be tolerated. Not only does it disadvantage lesser nations, it poses a threat to the progress of international norms in general. The most significant development in international law in the past three decades is the progressive enactment of laws securing human rights and their expansion in terms of coverage. Solidification of an international double standard on the application of norms can potentially halt or even reverse that evolution. The interests of peoples–and nations–everywhere (including the Great Powers themselves) lies in making sure that does not happen. Powers rise and decline. Today’s Great Power may tomorrow be just one of the pack. They will then wish there was a single standard for international law.