I've noticed in a variety of contexts that there are some rather well-educated, articulate individuals out there who have what seems to me to be a fanatical, quasi-religious belief in "international law", and the idea that it should trump any other conflicting consideration. In the constitutional law field, this is reflected in the argument that the president and the courts should ignore domestic law and the Constitution if they conflict with international law--even if the United States isn't a party to any binding international agreements on the particular subject at hand.
On a more personal level, I've had a few email conversations with Volokh Conspiracy readers along the following lines:
Reader: Israel is illegitimate because it violated international law by not allowing Palestinians who fled Israel during the War of Independence to return.
Me: I'm not an expert on international law [UPDATE: For the record, and in response to some of the comments below, I'm not conceding that Israel did indeed violate international law in this matter. I don't know anything about it, though comments below and an email I received cast grave doubt on the matter. But I didn't argue the point in my correspondence] but I do know something about Israeli history. There is no practical way Israel could have permitted the return of most of these refugees. First, the Palestinian and broader Arab leadership remained committed after the war to Israel's destruction. The Arab community within Israel's border had participated in the war against Israel. The immediate result of allowing hundreds of thousands of generally hostile Arabs back into Israel (which had well less than a million Jewish residents at its founding) would have been constant intercommunal violence and ultimately another war. You can't expect Israel to have committed national suicide.
Reader: International law says Israel had to do it anyway.
Me: But Israel was busy resettling hundreds of thousands of Holocaust survivors, as well as hundreds of thousands of refugees thrown out of Arab countries, many of whom had to live in tents for years. Israel simply didn't have the resources to deal with those problems and also deal with trying to resettle hundreds of thousands of hostile Arabs.
Reader: Doesn't matter, Israel was violating international law.
Me: But most of the refugees moved only a few miles from their original homes, to places where the culture and language was often indisinguishable from their hometowns. It was like moving from Brooklyn to Queens. Surely the Arab countries that had participated in the war against Israel, and had egged on the Arabs of Palestine to launch a war against the Jews, should have simply funded the resettlement of the refugees. Indeed, even the money that has gone to UNRWA over the years from the West would have more than sufficed. Instead, the Arabs preferred to use the refugees as a propaganda tool, and canon fodder, against Israel.
Reader: All well and good, but Israel was in the wrong, because it violated international law.
I'm not exaggerating when I say that I've had several correspondences along these lines, none challenging the points I raised (though not necessarily assenting, either), but simply arguing that any such points are completely irrelevant, because all that matters is whether or not Israel violated international law.
It has struck me that debating such people is just as frustrating and unproductive as arguing with a religious believer about some matter within the scope of his religious belief--just substitute "God says so" for "international law says so."
The point of this post is not to defend the points I made in my email correspondence, but to ask informed readers about when and how "international law" gained such cult-like status that well-educated people believe that merely invoking it (or their interpretation of it) is sufficient to settle even the most nuanced and contentious debates, that it should always trump domestic law, etc. Please restrict your comments to either explaining, or, if you are so inclined, defending, this phenomenon. (Or is "international law" largely invoked to try to restrain the actions of the U.S. and Israel, but largely ignored more broadly?--e.g., I haven't heard of any other nation's besides Israel's legitimacy being questioned because of past or even present real or imagined violations of international law.)
Arguably, "international law" doesn't even deserve the term "law", at least in the sense that ordinary Congressional and state statutes are law, but that's a different issue.
Later, it was convenient to use this body of "law" to justify anti-USA positions as we had influence in other countries.
When "international law", more and more, seems to consist simply of the opinions of other countries' liberal contingents concerning the correctness of the decisions of the leaders of the USA, the current decisions of the leaders of the USA seem to get short shrift.
For libertarians, it's "the market."
For some on the left, it's "international law."
It's always something, I guess.
My issue is that there are people equally ignorant on both sides; those who say international law has absolutly no purpose whatsoever and is merely a joke put forth--usually by psychotic liberals, and those like the professor speaks of that say Israel violated international law and nothing else matters, and that the Constitution of the United States must be changed in order to comply with international law. International Law is to be obeyed at all times specifically because no treaty should be entered into that which violates current US Law. International Law has been around since Grotious, and in an even more elementary form dating back to the Romans. International Law ought to be embraced by all--so long as it is defined correctly.
But I was starving, and if I die, my family will be destitute.
But you broke the law.
Yes, but I did so to survive -- you expect me to commit suicide?
But you broke the law.
Yes, but the baker had way too many loaves -- he couldn't possibly have sold that many. In fact, yesterday, I saw for a fact that he threw out dozens of loaves.
But you broke the law.
Yes, but if my family becomes destitute, they might join a terrorist organization to right the wrongs of the world. They might make the world really really dangerous.
But you broke the law.
Since when has criminal law gained such a cult-like status that well educated people believe that by simply invoking it, it settles the debate? Dont' you know that there nuances, excuses, and moral issues to be debated here?
As for nations actually constraining their own behavior based upon an unenforceable code of conduct, yeah right. Simply put, might makes right when nations are concerned. If they arent worried about stepping on the toes of a bigger power than themselves, most nations act like cave men towards one another.
Though I cannot fathom your Reader's recalcitrance and I certainly understand the concepts of justification and excuse, I find modern day apartheid-like conditions (not to mention the construction of the wall) within Israel much more objectionable than the fact of its existence. Thank god for friends in high places.
By the way, many of the resolutions against Israel are not binding, unlike those regarding Iraq.
Needless to say a lot of expellees would like their property back. We also have Europeans living in houses taken from the Jews demanding that Israel provide a “right of return” for the Arabs. Remember the population shifts in Israel and Europe took place at about the same time. Moreover some (if not all) of the Arabs fled Israel, whereas the ethnic Germans, Poles, Jews etc, were expelled. After all many Arabs choose to remain in Israel and were allowed to do so. So if Arabs have a right of return under “international law,” then so do a lot of other people. Why can’t the Sudeten Germans have the same “just cause” as Palestinians? I guess the difference is the European expellees don’t go around blowing people up, hijacking airplanes and killing Americans.
Let's not be silly. International Law is like the curfew for minors - it's there to invoke when convenient. It's not meant to be applied consistently, or even have a serious basis in sound policy.
I think the reason people like to use International Law against Israel is that Israel is pretty obviously "in the wrong" in the sense that they sortof stole a bunch of Arab lands and situated a nuclear arsenal on them. International Law feels like the only legitimate vehicle for bringing recognition to that wrong. I don't think International Law enjoys the same general revere as, for example, the "Constitution in Exile", but it serves in a pinch.
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If Israel was being condemned for violating a law, rather than just a vague moral/political principle, it would be necessery to show they indeed were technically in violation of the law and that countries that are technically in violation of the law are usually condemned. The flagrant disregard for any legal technicalities in the arguments against Israel or the invasion of Iraq (were we still at war with them, did Israel technically take civilian land or Jordanian government land) shows that what is going on is not a legal discussion but a moral discussion in disguise. Moreover, the lack of any indignation or condemnation for other violations of this law that are generally regarded as good (NATO's role in serbia I think) proves that it is not actually any legal point which is justifying the condemnation. As such it cannot have extra force above and beyond the moral dispute itself.
Or to put it differently technicality is the soul of the law for a good reason. It is only by having a precisce well understood statement of a law and condemning anyone who violates that statement that the law has any advantage over individual moral intuition. When you have vague principles or idealistic statements you have no guarantee there is any agreement on what they mean even if everyone assents to them nor do such principles help build consensus as to how one can act.
Ultimately I am very troubled by the use of these 'international law' arguments as proxies for moral or political arguments. I think it is very important to develop a strong system of real international law but this can only happen when countries can be confident that the treaties they enter into will be interpreted to mean what they say. If countries think that technicalities will be eschewed for some supposed principle behind the law they can't be sure their treaties won't be interpreted to go beyond what they were willing to accept and the progress of international law will be stymied. This is one of the reasons I find the various international judicial bodies so troubling. Since the few deciscions I have read seem to read more like moral tracts than clear analysis of the meaning of the treaty I fear they strongly discourage any country which doesn't share the majorities moral outlook to eschew signing anything that sounds like more international law.
I have yet to see the supporters try to get into the legal technicalities much less meet this burden and short of such a showing it seems this is just a clever way to dress up moral disapproval.
Isn't it true that all "international law" as such is treaty-based? If a country doesn't like a "law", can't it just leave the treaty. Of course, I suspect there are those who believe such laws have some greater legitimacy, tho I fail to see it.
This would be an excellent area for VC to bring on a scholar in that field, preferably a thick-skinned moderate who enjoys kicking the can around a bit. Thanks for the post.
I think one of the main arguments regarding Israel and international law is that there is a double standard. When Israel ignores the UN and builds nukes, we support them; when Saddam ignored the UN (but didn't build nukes) we invaded. It's worse to use international law selectively than not at all; that just makes us look like hypocrits.
And yet, would you not, as a disinterested outsider, believe that the poeple of New Orleans are acting irrationally if they return? That they are, in fact, better off if they do create a new 'state' in a slightly different place? That the cost of their demanding to build there is a cost, not only to themselves, but to the all citizens the State of Lousiana, nay even all of the Citizens of the the United States? What right to they have to incur the costs on 300 million other people because they are attached to there houses?
And if we did force them to move, would that be a violation of international law?
How about if we expelled all the illegal immigrants? Would they then have a 'right of return'? They are not citizens, and are here only because we have not acted to move them out. But, is it not our countries right to define citizenship and allowed residence?
When dealing with uncivilized states and factions, as we are today, anything goes.
Now if the UN had its own military and could go around forcing compliance with international treaties, you would have a body of law.
This is rare enough domestically. Anybody have any examples internationally? That doesn't mean a well-insulated individual of a country insisting on the disadvantaging of other citizens of his country. I mean the personal disadvantage of the invoker.
Some people you were having discussions with might indeed misuse the term to justify whatever their political position was, however, that sad fact does no suffice to do away with the notion of international law as such or to simply call it a "cult." I hence find your post pretty disappointing. The other comment re "straw men" has it right.
Allow me to clarify one thing, lest the more anti-IL among us freak out that law professors are a source of international law. My understanding is that treaties and custom are considered the two primary (you might say "real") sources of international law, while general principles and teachings of publicists can be considered evidence of pre-existing international legal obligations. The Restatement, for example, distinguishes between sources and evidence (though it puts general principles in the first category -- I don't think that matters much because they don't seem to come into play very often):
Uhm, okay.
How about UN Missions in the Former Republic if Yugoslavia? Ruanda? Embargo against South Africa during the Apartheid regime? Criminal proceedings against people like Pinochet, Tadic, Milosevic for violations of international law? Nuremberg trials? Chinese presence in Tibet? Many many more?
With all due respect, not everything is about Israel and the U.S.
I think the problem is in the origins of international law. The first international laws came from essentially three sources: the doctrine of "natural" or universal moral law; the customs of a few countries considered "civilized"; and the pronouncements the Pope made in order to settle disputes among medieval Christian sovereigns. In other words, international law WAS a quasireligious moral code for hundreds of years more than it has been an organized system of written treaties. It shouldn't surprise us that some people still get things confused, or that others see treaties primarily a way to codify their morality.
In particular, it is still very easy for people to believe that whatever the leading nations of Europe are doing is "civilized" and hence superior to whatever other nations are doing. And yes, every time someone comes up with a way to divide the world between "civilized" and "uncivilized" nations, it becomes an excuse to deprive the "uncivilized" of freedom. This applies equally to American invasions and to European attempts to prevent Israel from defending itself.
This is a great case in point for what Logicnazi was saying.
Israel is not a signatory of the Nuclear Non-Proliferation Treaty. Iraq was, and as such has certain legal obligations and responsibilities to which they agreed. Israel does not. As Logicnazi pointed out (paraphrasing), these 'international law' arguments are used as proxies for moral or political arguments.
There are non-binding resolutions (not Security Council resolutions) calling for a nuclear free zone in the mideast. This is not "international law", though.
The resolutions passed regarding Iraq and weapons inspections were Chapter VII Security Council resolutions, which have the force of law *and* can authorize the use of coercive measures if they are not followed.
(If you understand the mideast, you recognize the irony that the majority of countries are very likely more afraid of Iran having nuclear weapons than Israel, for a variety of reasons, some of which would coincide with the reasons for our own tolerance.)
In any event, IMO Israel is a poor choice around which to frame a general discussion about international law. The UN is incredibly biased against Israel, and the political machinations by the bloc of Islamic nations and their allies muddy the legal discussion a bit.
Thank you very much for pointing out the difference between Chapter VII resolutions and those by the general assembly. Its a fundamental distinction that is too often lost.
1. Enthusiasm for international law goes in waves. A fairly high degree of support for it is to be found in Article VI of the US Constitution and the Alien Tort Claim Act (1789), which recognise (some treaties) and some principles of "the law of nations" as part of US law. Other key moments of enthusiasm are probably the period immediately after World War I (the founding of the League of Nations), and again after World War II (the Nuremberg Trials, the founding of the United Nations, the European Communities and the European Convention on Human Rights).
2. The main motivating factors in those cases seems to have been an understanding that resort to naked power in international relations, even when it "works", happens at enormous human cost, and that it would be better if the self-interested deployment of power were to be tempered or replaced by more peaceful means to resolve disputes in accordance with widely accepted or agreed normative principles. A lot of effort is directed at making states play by the rules, which includes establishing institutions to decide authoritatively what those rules are (one of the major weaknesses of international law) and/or to enforce them (a second huge weakness). Enthusiasts naturally dislike states who wish to dine a-la-carte, invoking principles that suit them and disregarding those that do not, because it weakens (or reveals the weaknesses) of international law.
3. From the point of view of international law, it "trumps" national law because otherwise it would not be law. If international law only applied if any given state chose to apply it, it would have no normative force at all. Whether international law "trumps" domestic law from the point of view of domestic law itself is something that international law (normally) has nothing to say, and different states vary in their practices.
4. There is a quite separate, and probably entirely sterile, debate among philosophers of law as to whether international law is part of the same "system" of law as domestic law, or forms a different "system". This recherche debate has more to do with what one means by "system" than with anything of practical significance.
What you call the "cult" of international law represents a belief in universal, nongovernmental humanitarian principles that stand against governmental oppression of civilians -- either a nation's own citizens (e.g., the German Jews and Gypsies); or your enemies' civilians (e.g., the residents of Hiroshima and Dresden). As such, "international law" really embodies a sort of cultural ideal rather than any specific legal principles. It's aspirational, not legal, and it is naive to say the least that international law always does or should trump domestic law. All human rights activists understand this, even while invoking "international law" to try to get nations to change their behaviors.
When most people talk about Israel violating international law they are usually referring to violations of UN resolutions. Are UN resolutions international law? Not according to the Restatement quoted above. So what are you left with? An uneforceable, undefined, so-called body of law that has no real rules and no real buy in from the countries that it purports to govern.
The fundamental problem is that your "rule-based"/Kantian structure still requires a "power-based"/Hobbesian power (read US) to allow it to function at all. Without the US (or some other body) protecting the overall system, the "rule-based" system will necessarily fail because someone will always come around who doesn't respect rules, only power.
I recommend Robert Kagan's Of Paradise and Power or if you don't want to buy the book, he was a long essay on it.
Common law in the US and Britain is basically custom or was derived from custom.
Sure there is. Argue that the treaty is unconstitutional.
International law doesn't exist. It's real like a Veggieburger.
Second, even if IL isn't adjudicable and enforceable by some central institution, does that really mean it's not "law"? Are all the constitutional provisions that fall under the political question doctrine not "law" because the political branches have to figure them out without assistance from the Supreme Court? Last I checked, Congress couldn't call 911 to get the President to honor its authority to declare war. I'm not sure you can sharply distinguish between law, on the one hand, and politics and morality, on the other. To varying degrees, every legal question has a bit of both.
With regard to David Bernstein's original question, I think the problem is with people's failure to acknowledge precisely this. Every legal question has a political/moral aspect. It's never satisfying to justify enforcement of a legal rule by saying, "Of course it should be enforced, it's the law!" You need some account of why it's good to enforce the law in that case or why it's good to enforce the law without exception.
This is even more true for international law, which lacks centralized institutions for its promulgation, interpretation, and enforcement. If you can't point to any reason why State X should have Obligation Y other than "It's the law!" then good luck convincing X to respect that obligation (or other states to enforce it).
I happen to think that most international law is desirable. As other posters pointed out, cooperation is good for everybody, even the most powerful actors. But that's a tough issue and there are intelligent arguments on both sides.
In any case, insofar as David's post is a criticism of people who invoke international law, I think it's misplaced. Insofar as it's a criticism of people who invoke The Law (of any sort) to avoid engaging with tough questions, then it's spot on.
You happen to like Hobbes and to believe that power is everything (veeeery modern thinking, last time I checked, Hans Morgenthau was so passe, but anyway.), I happen to like Kant and veggie burgers.
If china becomes the power political scientists believe it will become, settling for Kantian veggie burgers instead of believing one was still the 900 pound gorilla might be the healthier diet.
@mookie: excellent point.
You really think China will respond to rules rather than power? Your argument exposes a fundamental flaw. You fatally assume that in a world where there isn't a dominant power, that China will voluntarly adhere to the "rules". I posit China is much less likely to adhere to them than the US is (particularly if you reversed the US and China's positions).
d: the nsa's domestic survellience program violates the law.
r: but the program is necessary to preserve american national security.
d: but it violates the law. if its really necessary, the president should have asked congress to convene a secret session and pass a law authorizing it.
[etc. etc. etc.]
would we describe d has having a "fanatical, quasi-religious" belief in obeying the law? you could record the same exchange with pretty much any other strongly held moral principle.
So police power is one way to enforce international law, and witholding economic benefits in another, perhaps more effective, way for enforcement. One could argue that 'power' can be guns, and it can be money. Sometimes the two go together!
I'd say those Arabs stole the land from the Romans.
This is many people's instinctive reaction and it seems intuitively plausible but it's not so simple. The counter argument is that the US federal government (for example) has to be relied upon to comply with its own laws, voluntarily. It can't be forced to adhere to its own laws since it controls both the military and the budget but that doesn't mean that US law isn't "law."
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This is not to deny the existence of real international law based on various treaties that has accumulated over the years. But those who devise "international law" with an agenda (for example, the UN wants to abolish the 2nd Amendment rights of Americans) are - at least insofar as I am concerned - outside the pale. The danger of such "international law" to American citizens, is that the United States has a better record than most nations when it comes to honoring treaties. So we (and the Senate) need to be very careful just what treaties we ratify, particularly if they will have an effect - most likely negative or restrictive - on our liberties.
It strikes me as just too convenient, too easy to cite custom when you want to and disregard when you don't. And isn't law, by its very nature, meant to overcome such tactics and apply universally.
I believe also that there is confusion, like many have pointed out here, in the difference between domestic law (Constitutions, statutes, common law) and International Law, which traditionally has been based on international norms. Treaties occupy both spaces in our case because the US Constitution makes treaties domestic law. In doing so, we add another dimension of complexity.
Who cares?
I'd say those Arabs stole the land from the Romans.
Well I say those Romans stole the land from the Jews, which is never brought up when people talk about how Israel is land stolen. Really, and who was there first?
Even "Passion of the Christ", there were Jews and there were Romans, where are the Palestinians. Oh yes, they had not been kicked out their homes by the Arabs yet. They were moved into modern day Israel when the Arab countries kicked them out of their original homes.
If anything, these international law people should be screaming to the Arabs to take back their own people. Give them back the homes of their ancestors. Of course, they may be killed for advocating such a policy.
International law has ever changed when one or more powers of sufficient significance has come to the conclusion that its vital interests would be more threatened by playing by the current 'rules' than by declaring new rules, or at least that it would no longer adhere to the old rules.
As long as there are groups - be they tribes, peoples, nation-states or alliances - which believe that sovereignty inheres in the group (and hence that only the group may determine its destiny), there will be no ultimate authority on earth except the willingness and the ability to resort to force: ultima ratio regis.
The UN and the post-WWII framework of "international law" is no more than the set of rules set up by the victorious powers in WWII and agreed by them. To the extent that international law is binding, it must be enforced by those powers. To the extent those powers do not believe that framework is sufficiently valuable that they are willing to enforce it by military means (when necessary), it will wither deservedly away.
The case of Israel is straightforward. The they see is between national survival and the alleged 'demands of international law' -- the question isn't even close. No people with the means to resist will commit suicide, or even take a significant chance of doing so.
To the extent any framework of international law demands choices of that sort from representative governments, the framework is flawed and not worth preserving.
The best answer to anyone who cites international law: "So go enforce it."
The second best answer is to find other violations of international law and ask if we should enforce that. For instance, how many nations are violating human rights as outlined in UN Charters? Probably at least 30% are in serious violation. Maybe 100% if we get technical.
What square foot of this earth has not been "stolen" from someone at some point? Right now I sit in the "illegally occupied" lands that were stolen from Mexico in 1848 (and in which we also situated a nuclear arsenal).
International Law feels like the only legitimate vehicle for bringing recognition to that wrong.
"Israel violated international law" sounds better than "the Jews are our misfortune", which is what they really mean.
This is rare enough domestically. Anybody have any examples internationally? That doesn't mean a well-insulated individual of a country insisting on the disadvantaging of other citizens of his country. I mean the personal disadvantage of the invoker.
Except when it is the law of equity. Seriously, law is about settling disputes; it works because people are continually confronted by the law, and it about equally breaks for and against them. Thus, the immediate disadvantage or advantage is not important.
This idea of coercive law does not encompass the entire legal system. Plenty of disputes are adjudicated willingly by both parties involved. I think you are much too much thinking of 'criminal law' wherein you are deprived of life and liberity if not also property. Such a scheme destroys the concept of a repeated game to which I was earlier alluding. It's one round (and the state can't really lose).
It would be helpful to recall that prison was once referred to as a 'peculiar american institution' (and has really only existed for ~100 years, barring debtor's prisons, political prisons, and other extreme cases).
There is no international legislature (the UN ain't it), there is no international monarch. They are the two groups that make laws. When there is a 1:1 correlation between cause &effect, if you don't have the cause (international legislature) you can't have the effect (international law).
So despite the lies that a bandied about, international law doesn't exist.
What people often mean when they say "international law" is "treaties," but they usually have some agenda they are hiding behind and intentionally misleading you. I assume that since God is dead and humans can no longer appeal to the moral authority of God that they feel the need to appeal the moral authority of some other fictitious being. In this case, international law (aka global standards).
Now on to treaties.
Treaties are just agreements between governments to enact laws. They aren't law by themselves. The US Constitution gives the President the authority to make treaties, but Congress gets to ratify and then make laws based upon them.
So, the US &AU make a treaty to do W, X &Y
When it gets run through the AU Parliament they don't like W. So they pass a law that allows for V, X &Y. That law is only enforceable in AU. It is an imperfect implementation of the treaty, but an implementation nonetheless. It is like a standard that is implemented but not fully.
Same thing happens in the US Congress. But they pass law with X, Y &Z.
Now you have 2 national laws. A AU law. A US law. You don't have an international law. Why? No international legislature remember.
You can sue in AU under the AU law, but not the US law. So in AU you are entitled to V, X &Y.
You can sue in US under the US law, but not the AU law. So in US you are entitled to Z, X &Y.
No where can you sue under the treaty. You never are entitled to W. Because te treaty (which entitled you to W) isn't a law, just an agreement to make a law.
You can't sue in NZ under either the AU or US laws. Because NZ, has neither of these laws and their courts don't care about US or AU laws.
Now we mis-use the term "treaty" to refer to both the AU &US laws collectively, but neither of them is really the treaty as negotiated by the PM/President.
Hey what about these international courts?
Well, they are really arbitration bodies.
They have no legal power beyond what the individual nations give them.
The UK may pass a law giving ICC judgments full effect, but that is due to the UK ceding sovereignty to the ICC, not because the ICC is inherently morally superior or because of some international law (which doesn't exist remember).
Now the US doesn't agree to cede its sovereignty to the ICC. So the ICC has no effect in the US.
Why no power beyond what the individual nations give them?
It comes down to a concept called jurisdiction.
See, ultimately might does make right. Not moral correctness, but the right to do something is ultimately based upon your ability to enforce that right.
To enforce a court order to, for example, the ability to forcibly imprison someone, take their personal and real property from them, you need an army and a police system. Nations have these things. NGO bodies don't. Even the UN has no standing military. It relies on borrowing the military of its member nations.
If the ICC has a judgement it wants enforced in the UK, it needs to get the approval of the UK government to use the UK police force to do that. Alone, the ICC is impotent.
Ultimately, every country acts unilaterally. Every country implements their own version of treaties. Every country decides whether or not to cede sovereignty to an international arbitration board.
People can't even get history right, and appeals to so-called international law just help the lies get repeated.
To those who ask why is this all about Israel: it shouldn't be, but as long as the UN wastes about half its time and energy passing double-standard rules against this state, it has to be.
The original inhabitants of Israel/Palestine were various tribes, the Philistines, etc.
From what we know, the Jews of old massacred every last one of them when taking the promised land. As such, despite whatever Arabs came that in afterwards, the Jewish people properly have claim as the oldest owners of the land (since the previous owners met with uhh... misfortune).
A great example is G-Bay and the Geneva Conventions. The I-Law crowd tends to hew to a line that we should either "charge them" with a crime or let them go...however the TEXT of the GCs specifically prohibits criminal charges (except for crimes that they commit while under detention). Similarly, the Administration's distinction between legal and illegal combatants (and the different GC protections that accrue to both) is absolutely part of the GCs--indeed, the requirements of a recognized command structure and duty of both parties that seperate the classes was deliberately put into the GCs to protect civilians. Blur this distinction and you remove some of those protections...with the tragic results we now see.
Until the I-Law crowd is willing to take the clear restrictions of their texts seriously, ity is very difficult to argue that it exists as anything more than a rhetorical device designed to support their policy preferences.
As the Humble Law Student, perhaps he's never heard the definition of "aborigines"--they're the people who wiped out the previous group so successfully that no one's ever heard of them.
Neanderthals.
I could believe there were half a dozen groupings living in the area, some dying off, some being killed off, and some being driven off--all of that before the Israelites decided to slaughter the Philistines out of their property and claim God said it was okay.
Every tribe has about always claimed God said it was okay...
When someday they're silicon based lifeforms observed slaughtering the hydrogen breathers, someone of them will claim God said its okay.
What, I should be pissed at the Italians for what they did to Boudiccae?
Yours, TDP, ml, msl, &pfpp
The fact that poeple can legitimately question the mere existance of "international law" while others take its existance as a given, adds weight to Berstein's point that you can "just substitute "God says so" for "international law says so.""
The reason some people seem have "a fanatical, quasi-religious belief in "international law"" is because the individuals expousing "international law" have, by and large, rejected the trappings of traditional religion and adopted a new "universal truth" to belive in. This universal truth is "international law," which if only everyone followed it we could all live in a peaceful paradise like Adam and Eve before they disobeyed the law and ate from the forbidden tree.
The irony here is that all the Left has done is reject the trappings of Christianity while internalizing what they believe are its fundamental truths. To a Christian the natural state of the world is peace, and this is one reason why they spend so much time trying to "explain" the outbreak of war instead of explaining the outbreak of peace.
Everyone has to have something to believe in and the Left has rejected traditional religion, so now they have to find a new religion to believe in.
International law, environmentalism, and communism fill the void and give people something to believe in that is greater than themselves.
The international law acolytes believe in "universal principles," also known as jus cogens, that, if they are followed, will lead to paradise on earth. Nevermind the fact that "international law" was used by Germany to prevent U.S. intervention in Yugoslavia after Germany sparked the civil war by appealing to international law.
Environmentalist priests worship mother nature, some of them going so far as to think that the earth has "bones" and "feelings." Nevermind the fact that millions of Africans have died, because "environmentalists" care more about birds and the use of DDT.
Communists believe in the eventual triumph of the proletariot, which will bring about a new paradise on earth. Nevermind the fact that Stalin and Mao each murdered more people than Hitler.
It is always amazing what kinds of actions people can justify when they have a fanatical believe in the rightness of their cause.
I think this also applies, to some extent, to people who are not athiest but are preferring to rely on "reason" for the sake of arguments (a noble goal, I guess).
Under the "traditional" international law model, these laws only regulate the conduct of nations towards one another and do not create any rights in citizens of the nations, who were considered "objects" of international law rather than its subjects. The original "sources" of international law were treaties and custom (how nations historically acted towards one another), and the laws mainly concerned commerce, diplomatic relations, and the conduct of warfare.
In the 20th century, international law changed more dramatically, and was viewed as creating rights in people, and not just in nations (this is a bit of a simplification, but the gist is true). Still, some of these new "laws" might be called mainly aspirational rights (such as the UN's Universal Declaration of the Rights of Man), which means that nations are not legally obliged to follow them, but they may be evidence of where the law is going (kind of like "evolving standards of decency"). Other laws do carry the force of law, in that they can be, and have been, enforced through legal actions in many countries; an example of customary international law, derived from treaties, creating rights in persons is the right not to be tortured. This right is based on treaties, but creates a right in an individual who is a citizen of a country that signed these treaties not to be tortured. There have been several successful US civil cases brought by victims of torture against their torturers, based on violaton of this right (e.g., the Filartiga case).
Another international legal right pertains to piracy and the right to bring legal action against pirates for seizing one's property (this is an older right, going back to before the founding of the USA). The Aliens Torts Claims Act, passed in approx 1789 (I thought it was passed in 1791), expressly grants standing in US courts for a non-US citizen to sue another for violations of the "Laws of Nations" and was passed to grant standing in US federal courts to ship owners whose ships were seized by pirates operating off of the North African coast. It has since been invoked by the torturers.
It is hard to know which "international law" arguments that email correspondents of Professor Bernstein are supposedly invoking in a "cult" like fashion, as we have only his summary of their comments. I will say that nations follow international law, even to their detriment, every day when they abide by WTO decisions going against them, submit matters to the International Court's jurisdiction and accept that court's adverse decision, recognize diplomatic immunity of another nation's embassy personnel who have committed a domestic crime, etc.
But, for matters viewed as really important, nations often (surprise) don't follow international legal obligations ---whether these laws are treaties, UN Security Council resolutions, or customary international law---and do whatever they think is necessary. If the conflict is with a treaty, the nation simply withdraws from it. However, there is no ability to "withdraw" from the supposed legal force of a UN Security Council resolution, or from "customary" international law. Israel's defiance of UN Security Council resolutions pertaining to returning land it captured during the 1967 war is an example of a matter where Israel deems its ability to set its own borders, and to keep captured land and settle it, more important than abiding by "international law" as defined by the UN Security Council. (By the way, the legal problem with the security wall is that it doesn't recognize the pre-1967 borders, and is built on land that Israel is supposed to give back).
Of course, some might argue that Bush is ignoring US and international law in the War on Terror (e.g., NSA surveillance, Guantanamo) in certain areas because his administration views the costs of compliance as too high.
In short, laws are like pants, they shouldn't be passed around indiscriminately. It's astonishing how much of what Chesterton said about WWI pacifism remains relevant today. As early as 1914, he mentioned the pacifist tendency to get caught up in catchwords.
If you've yet to discover the delights of Chesterton, you don't know what you've been missing.
--Mike Perry, Inkling Books, Seattle
Um okay? So, the the Philistines acted like "aborigines" and wiped out the people before them. I hardly see how that is relevant.
The Jews were resilient enough to survive extinction (unlike the Philistines). As such, the Jewish people have the longest claim to the land in Israel/Palestine.
The UNSC resolution being referred to here is UNSCR 242. Mr. Cooke, if you wish to talk about this Resolution then do us a favor and discuss the entire resolution and not just the half that you want to talk about, because it can be used to bash Israel. As someone who tried to bolster his position by telling us that he has "studied and researched international law" I would hope that you could at least present both halves of this resolution.
You remind me of someone who tells a roomful of undergrads, right before the the invasion of Iraq, that UNSCR 1441 "does not require the use of force" while failing to tell your audience that neither did UNSCR 1441 prohibit the use of force. In other words, if you are going to be an advocate, then please let us know, so we can weigh your statements accordingly.
Begging the question to defend "international law" probably became a widespread practice when media and communication advances exposed the concept to a serious and sustained intellectual challenge.
humble law student, who cares who has the oldest claim when we're talking about arguments going back thousands of years? if we took that standard seriously we'd have to reallocate every scrap of land on earth except possibly israel.
If International Law as a framework has grown out of custom and historical international diplomatic relations, and if diplomatic relations are conducted by the executive branch, then doesn't the willy-nilly recognition of international law within our borders amount to granting the president unconstitutional legislative powers? I'm not a law scholar, but I always thought that's why treaties have to be ratified by the senate, as the GATT treaty was in 1994:
If one makes a distinction based on ratification, then "ratified international law" can be viewed as OK since a recognized legislative body voted on it. "Unratified international law" is the imposition of the policies of the president and any dictator/oligarch buddies abroad dream up, perhaps after a period of time for those policies to become "customary" and "historical". I'll go out on a limb and say that it is the "unratified" kind of international law that alarms most commentators.
On the contrary, according to the "customary" and "historical" tests you have alluded to, and if you consider the practices of Middle Eastern kindoms and Communist dictatorships from the last century, Bush is probably well within the norms of international law there.
here is the relevant language of Resolution 242 (which I was too lazy to look up when writing my last post):
The Security Council:
"Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:
Withdrawal of Israeli armed forces from territories occupied in the recent conflict;
Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;"
Of course, you are right (if this is your point), that Arab countries are not paying attention to the second point--termination of all claims or states of belligerency."
(it has been many years since I looke at this)
My understanding is that the US position has been that Israel's annexation of most of the land it conquered during the 1967 war (via settlements and the fence) is not consistent with the first point, but I understand that the key language is "territories occupied" which could mean either "all of the territories" or "some of the territories." The US view is that this language means that some minor border adjustments are consistent with the resolution, but Israel can't keep everything.
I was not intending to be an Arab propagandist, but I think my point about Israel's unwillingness to cede to the UN Security Council the ability to decide its own borders and security is still valid, and that Israel will decide what it wants to do about these borders regardless of this resolution.
Heck I'd like to know who these lawmakers are and how they got a job like that...
Could we all take a moment and reflect that there are enough places where you can read a sentence like that.
Yours, TDP, ml, msl, &pfpp
I'm no lawyer, but I know when I first encountered the attitude in someone who was: 1995, Roger Dingman's 'Ghost Ship,' an analysis of an incident in World War II in which a US sub sank a 'cartel ship' and paid Japan damages.
Professor Dingman's book was largely devoted to analysis of international law of prisoners. In very brief summary, neither country trusted the other to adhere to international law, so both participated in confidence-building measures, leading to a safe conduct granted to a Japanese ship.
What struck me, a mere newspaper reporter, was that Dingman carefully crafted a story in which two countries agreed to disregard international law in order to reach an idiosyncratic arrangement (in my layman's view, a contract), which broke down in the event.
Dingman then faults the US action on the basis of international law.
I cannot think of an earlier example of blind genuflection in front of international law, and a quick search of scholarly reviews does not turn up any comment on it.
Me, I was shocked, but then maybe it is harder to shock a lawyer.
I think DK and KenricH have really got it right. "International law" is basically Judeo-Christian morality without God, and with a cosmopolitan "citizen of the world" aesthetic thrown in. Its supporters get to (1) have an absolute moral view, while at the same time living a life (2) free of the religious faith they find primitive, and also get to (3) show that they are sophisticated in that they know about and care about people who live far away from, and are far different than, they are.
In a sense, a reliance on "international law" can be seen as an expression of moral superiority by people who