Should the sheriff be above the law?
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,
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, 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.