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Should the sheriff be above the law?

August 23rd, 2007

Daniel Drezner (supported by Megan McArdle and Glenn Reynolds, but not by Brad DeLong) has responded to my criticism of his claim that the US should be able to invade foreign countries whenever its “vital national interests” are threatened. Drezner narrows the gap between us a bit, saying that most members of the FPC are more skeptical about the effectiveness of military force than they used to be (though of course, plenty of members in good standing are pushing for a war with Iran that’s even more certain to fail than the war with Iraq), and saying

there is a big difference between not taking force off the table as a policy option and advocating its use in a particular situation. As Quiggin observes, force is a really messy option and carries horrendous costs.

Drezner dismisses concerns about international law, quoting James Joyner’s observation that the UN Charter prohibiting war has mostly been observed in the breach. Joyner only mentions the US, but Drezner goes on to claim that

This applies to every other state in the international system as well. Quiggin wants international law to be a powerfully binding constraint on state action. That’s nice, but what Quiggin wants and what actually happens are two very different animals.

A couple of questions arise here. First, is Drezner’s claim that the international law prohibiting aggressive war is a dead letter factually correct? Second, would the US (more precisely, the people of the US) be better off if the option of unilateral resort to (non-defensive) war was taken off the table or at least put further out of reach?

On the first question, I’m mildly surprised to find myself in partial agreement with Megan McArdle who notes “the wars that don’t happen in the Middle East, or Central Europe, because all the participants know that it would be a foolhardy invitation to US intervention”. The fact is that the (admittedly selective) enforcement of the interantional law against aggressive war, in which the US has taken the leading role, has had a significant effect in securing adherence to that law. But even without any obvious threat of US intervention, a great many states have abandoned the idea of military force as a legitimate instrument of public policy except in the context of (individual or collective) self-defence and UN-authorised peacekeeping and humanitarian operations. In particular, outright invasions of one country by another, with the objective of either annexing the target country or installing a puppet government, have been quite rare in the period since 1945. So the claim that international law is a dead letter is far from obvious.

It’s also far from clear how to view international law in general, from the Hobbesian starting point Drezner seems to be assuming. What is the point, for example, of elaborate agreements like NAFTA and the WTO (which Drezner appears to support) if states can get their own way by force whenever they don’t like the outcome of the rule of law.

But it’s the second question that is of more interest to me. Considered as a state, the US, is the state most likely to have both a “vital national interest” and a physical capacity to enforce international law against aggressive war. Hence the US has an obvious interest in voluntary compliance with that law, and in the willingness of other states to help in its enforcement even in the absence of any direct national interest. So that unless Drezner means to be taken literally in saying that ” every state in the international system” regards international law as an irrelevancy, US actions that undermine international law have adverse consequences for the US as a state. Conversely, a clear commitment from the US to uphold international law has obvious benefits.

If we disregard any effects of leading by example, it might seem self-evident that the US is always better off having more freedom of action than less. Implicit in this claim, though, is the assumption that the US state is a unitary, rational actor pursuing well-defined interests, and that these interests are at least broadly consistent with those of Americans as a group. The first part of this idea is particularly associated with “realism” in international relations, but I think it’s fair to say that the assumption as a whole is taken as axiomatic by members of the Foreign Policy Community.

On the other hand, the idea of the state as the direct embodiment of the national will is the exact opposite of the assumptions on which the United States was founded. The Founders sought, as far as possible, to divide and constrain state power to prevent its misuse, and this was particularly true of the power to make war (Congress was supposed to declare war, while the President was Commander-in-Chief). Libertarians in particular have stressed the ever-present conflict between the interests of the state and those of individual citizens[1],

So, it’s reasonable to ask whether Americans in general would be better or worse off if US Administrations were constrained from unilateral resort to force, for example by a legal requirement to act in accordance with the UN Charter. Of course, as we’ve seen in the Iraq case, any such restriction could be rendered ineffectual by an Administration willing to lie and to evade the law, but it seems likely that such a restriction would have at least some effect. Looking at the major recent cases of US use of force, Afghanistan was not a problem since it was clearly consistent with the UN Charter, and subsequent actions were supported by the Security Council. That leaves Kosovo and Iraq. In both cases, securing support from the United Nations would have been difficult, in the Kosovo case because of a likely veto by Russia or China[2], and in the Iraq case because most member countries, and most of the world’s population, opposed the invasion. However, it seems at least plausible that, if mass expulsions had continued in Kosovo, and the US had been willing to make some concessions to Russia’s perceptions of a sphere of interest, that some UN-backed action could have been organised, though with a delay that would have had tragic consequences for some. On the other hand, had there been a delay in the case of Iraq, the absence of the WMDs that were the purported casus belli would eventually have become undeniable, and UN support would never have been forthcoming.

At least as regards these two examples, the American people, and the world as a whole, would have been better off on balance if their government were more constrained from making war.

fn1. As has been noted many times, self-described libertarians like Reynolds have shown themselves unconcerned by this conflict in matters of life and death, despite being happy to reach for libertarian rhetoric when the state impinges on their recreational or financial interests.

fn2. THe anachronistic structure of the UN is a major problem here. Constraints on unilateral action imposed by international law would be more palatable if the relevant decisions reflect the views of the world as a whole (at least as represented by their governments) rather than the consensus of the Great Powers of 1945.

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  1. Hal9000
    August 23rd, 2007 at 23:18 | #1

    Good post, Prof Q.

    ‘At least as regards these two examples, the American people, and the world as a whole, would have been better off on balance if their government were more constrained from making war.’ Other examples beckon. Of course, every aggressor always cites some pretext for the act of aggression, but it’s difficult to recall one that stood up to much scrutiny once the bullets started flying, let alone in the wash-up at the end.

  2. owls001
    August 24th, 2007 at 06:52 | #2

    “In particular, outright invasions of one country by another, with the objective of either annexing the target country or installing a puppet government, have been quite rare in the period since 1945.”

    JQ do you in all honesty really want to stand by that assertions?

    Tim Worstall deals with it head on

    http://timworstall.typepad.com/timworstall/2007/08/interesting-ass.html

    Leave aside E Europe in 1945….that leaves Czechoslovakia in 1968…North Vietnam invading S Vietnam, N Korea ditto the South, Cambodia, Grenada, Panama, maybe Suez? Iraq II, (hey, we’re not being politically partisan here, we’re trying to list those wars which were to either annex or install a puppet government, whether we approve of who was doing the installing or not or of what was installed…and allowing either or any side to claim “puppet” status for the result), Uganda (Tanzania and others going after Idi Amin) the Arab wars against Israel (48, 67, 73….have I left one out?), Congo (say, Zimbabwe and others invading), how about Liberia and Sierra Leone? One or two other West African ones…didn’t Chad try to invade somewhere? Or was that Ghaddaffi invading Chad? The Falklands (either side can play the annexation argument here)? China and Tibet?

    Ethiopia and Eritrea? How about the Cubans in Angola? Or is that getting too close to supporting an insurgency rather than a full on war? South Africa and Namibia? I’m sure there are others, leaving those support for indigenous fighters ones alone (Nicaragua, El Salvador, Chile, half of Africa by the other half etc etc etc) as the original assertion does.

    My history isn’t good enough to compare this with earlier periods: is “quite rare” the right phrase here?

    Update: along with those in the comments: Syria and Lebanon?

    AND THERES YET MORE IN THE COMMENTS.

    JQ, what kind of DENIALIST shall we use for you then?

  3. Hal9000
    August 24th, 2007 at 07:34 | #3

    owls001 most of your examples are problematic.

    I think you’ll find the Cubans were supporting the government, not the insurgency, in Angola. Most of the African examples were multilateral interventions brought about by refugee outflows. Vietnam and Korea were artificially divided nations with no agreed-upon boundaries. In both cases the casus belli was the unilateral abrogation of settlement processes (elections of a constituent assembly) by the US-backed entity.

    Syria was an invited intervention (by the same Lebanese factions who are now labelled ‘anti-Syrian’) and also a multilateral intervention (Arab League).

    The Arab-Israeli wars are unique in that they were designed to secure annexations – the countries being invaded being the Arab ones. The ceasefire lines remained the same in 1973 as they had been in 1967, but by the same token the attempted recovery of illegally acquired territory cannot be characterised as ‘invasion’, so 1973 doesn’t belong here.

    Czechoslovakia, Grenada and Panama are clear-cut cases.

    By the same token, you haven’t mentioned Hungary, the Dominican Republic or Bangladesh…

  4. August 24th, 2007 at 07:59 | #4

    there is a nascent international law: law, courts and a variety of sanctions already exist. but the key element of all political discussion is power.

    the usa has great military power, and has been willing to use it to get what it wants. there is near universal acceptance that it can not be resisted, so long as it uses that power on ‘someone else’.

    in fact it can be resisted. any nation willing to follow the swiss policy of “free, or dead” can resist. this policy works. it worked for the swiss in ww2, it worked in vietnam, it may work in iraq.

    better yet, it doesn’t always require standing up to the bully with force. the international community could bring the usa to heel with economic sanctions. there is no will to do this among politicians, who are prospering in the western oligarchies under current conditions. they are not ‘boat-rockers’.

    the intelligentsia of the west are well content with the faux democracy that permits this militarism. they are not boat-rockers, either. so the usa will continue to pursue it’s national interest, many will wring their hands, some will cry “shame!” and nothing will be done.

  5. jquiggin
    August 24th, 2007 at 10:21 | #5

    Thanks, Hal. I’d made most of these points in comments to Tim’s post, but owl apparently didn’t read them.

    The difficulty of finding really clear-cut examples illustrates my point. Compared to either the continuous wars of the first half of C20 or the routine imperialism of C19, wars of conquest have become quite rare.

  6. gordon
    August 24th, 2007 at 17:57 | #6

    “Of course, as we’ve seen in the Iraq case, any such restriction could be rendered ineffectual by an Administration willing to lie and to evade the law, but it seems likely that such a restriction would have at least some effect”. Wishful thinking, I’m afraid. About as wishful as expecting Hitler to abide by the Munich agreement.

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