squashed:
If we’re going to surrender bits of our sovereignty to an international body, I would want a few guarantees. First, I would want that body to apply its law neutrally and consistently. Secondly, I would want that body to protect civil liberties at least as well as we do. We have some room for improvement on that front—but compared with other countries, we’re not so badly off. Thirdly, I would want clearly defined, static expectations. Fourthly, I want the body to be independent and isolated from international politics.
The ICC fulfills these requirements easily, and the principle objection in academic and political circles to US participation in such bodies is not that they’re inconsistent, biased, undefined, or insufficiently protective of rights. They’re not. They offer due process, accepted legal definitions of responsibility, normative evidentiary rules, and the like.
Rather, the objection tends to invoke “power politics” and an admission that international affairs are the province of partially amoral calculations of interest; while international law is a variable in any such calculation, it is dwarfed -in this line of argument- by the self-interest of the state, in economic, militaristic, or other senses.
This view has intellectually serious adherents, although I am not one of them. It concludes that a state, and its leaders, are responsible to its own citizens above the citizens of the world, and that when sufficiently desirable any course of policy is appropriate, whatever its relation to treaties, laws, and so on.
This is the operating philosophy of the US, whether we’re discussing our stockpiles of VX gas, our nuclear arsenal, our military activities, our economic policies, anything. What is best for us is what we do; when it behooves us to do so, we use international law. When it behooves us to violate said law, that’s acceptable.
Now, and I stress here that John Brissenden more or less disabused me of any comfort I had with this philosophy, proponents of this view claim that an international community of states pursuing their own interests is a balancing and stabilizing system, that some use of international law is beneficial, and that -like a free market- over time this yields the fairest and best results.
Balance is a component of this moral justification, and in the formerly bipolar era of the Cold War, it was often suggested that we had a “mature” global system, with minimal flashes of instability and violence (small consolation for those situated in them). Now, with fewer “checks and balances” (so to speak), the international order is more unstable.
The plain counter-argument: humanity should aspire to maximum lawful order, the largest scale of participatory contractual law as possible (i.e., global), and consistent justice for all states and their leaders. You may find this desirable or persuasive, or the previous “realist” argument, but those are the terms of the debate.
There is no question that the US violates international law; the question is whether international law trumps the interests of the state. Do we want leaders willing to engage in lawless international exploits for a perpetually-expanding economy and internal security? Or does violating international law always reduce security and prosperity for states over time? To what extent are we to be global citizens, as opposed to citizens of our states?
That is the real issue we discuss when the applicability of international law is debated.
[Brief note: Bunnynico and Squashed are awesome, aren’t they?].