Monday, September 29, 2008

Roadblaocks On The Road To An Age Of International Law

(image via unesco)

Can you feel the thickening of the network of multilateral institutions powered by the pulse and engine of History? "May you live in interesting times," the old Chinese blessing and curse is doubly relevant, it seems, to this historical age. The late Senator Daniel Patrick Moynihan's crystal ball was remarkably clear, while so many others' future-gazing media were opaque on matters regarding the global fundament. A sprint ahead of the curve, the former United Nations Ambassador and cabinet minister to three Presidents of both parties anticipated issues as wide-ranging as the rise of ethnicity in politics in the 1970s and 80s, post_Cold War Balkanization (the internationalization of his argument in Beyond the Melting Pot), the need for transparency in our intelligence agencies, and, of course, the subject of this post: the rise of International Law.

On the subject of the Law of Nations, it is not a matter of what but, we believe, when. To extrapolate from an oversimplified sampling from Modern History: the bilateral Cold War begat The Pax Americana begat the present pandemonium will beget, we surmise, an Age of International Law. Logical? And that time -- the time to confront the immediate questions proximate to how America might deal with Constitutional issues surrounding International Law -- might perhaps be now. From Noah Feldman of The New York Times magazine:

"Every generation gets the Constitution that it deserves. As the central preoccupations of an era make their way into the legal system, the Supreme Court eventually weighs in, and nine lawyers in robes become oracles of our national identity. The 1930s had the Great Depression and the Supreme Court’s 'switch in time' from mandating a laissez-faire economy to allowing New Deal regulation. The 1950s had the rise of the civil rights movement and Brown v. Board of Education. The 1970s had the struggle for personal autonomy and Roe v. Wade. Over the last two centuries, the court’s decisions, ranging from the dreadful to the inspiring, have always reflected and shaped who 'we the people' think we are.

"During the boom years of the 1990s, globalization emerged as the most significant development in our national life. With NAFTA and the Internet and big-box stores selling cheap goods from China, the line between national and international began to blur. In the seven years since 9/11, the question of how we relate to the world beyond our borders — and how we should — has become inescapable. The Supreme Court, as ever, is beginning to offer its own answers. As the United States tries to balance the benefits of multilateral alliances with the demands of unilateral self-protection, the court has started to address the legal counterparts of such existential matters. It is becoming increasingly clear that the defining constitutional problem for the present generation will be the nature of the relationship of the United States to what is somewhat optimistically called the international order.

"This problem has many dimensions. It includes mundane practical questions, like what force the United States should give to the law of the sea. It includes more symbolic questions, like whether high-ranking American officials can be held accountable for crimes against international law. And it includes questions of momentous consequence, like whether international law should be treated as law in the United States; what rights, if any, noncitizens have to come before American courts or tribunals; whether the protections of the Geneva Conventions apply to people that the U.S. government accuses of being terrorists; and whether the U.S. Supreme Court should consider the decisions of foreign or international tribunals when it interprets the Constitution.

"In recent years, two prominent schools of thought have emerged to answer these questions. One view, closely associated with the Bush administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint, the Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security. For the most part, that is, the rights the Constitution provides are for citizens and provided only within the borders of the country. By these lights, any interpretation of the Constitution that restricts the nation’s security or sovereignty — for example, by extending constitutional rights to noncitizens encountered on battlefields overseas — is misguided and even dangerous. In the words of the conservative legal scholars Eric Posner and Jack Goldsmith (who is himself a former member of the Bush administration), the Constitution 'was designed to create a more perfect domestic order, and its foreign relations mechanisms were crafted to enhance U.S. welfare.'

"A competing view, championed mostly by liberals, defines the rule of law differently: law is conceived not as a quintessentially national phenomenon but rather as a global ideal. The liberal position readily concedes that the Constitution specifies the law for the United States but stresses that a fuller, more complete conception of law demands that American law be pictured alongside international law and other (legitimate) national constitutions. The U.S. Constitution, on this cosmopolitan view, faces outward. It is a paradigm of the rule of law: rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order. What is most important about our Constitution, liberals stress, is not that it provides rights for us but that its vision of freedom ought to apply universally."

We are not so blithely naive as to believe that International Law will -- by fiat voluntas tua -- fill the universe with light and chocolates and a choir of celestial voices culminating, climactically, in "The End of History." The age-old conflict between the The Parties of Heaven and Hell will never melt, thaw and resolve itself into a dew. Tradtional power politics in its various iterations -- such as Conservative Internationalism -- will always exist but, we believe, those parochial philosophical aberrations will have to operate their pessimistic dark magic at the margins, past the spiderwebs, through the kaleidoscopic prism of international law.

There are and always be the Syrias of the world, utilizing "Syrian diplomacy," usually involves enough dynamite to level a Mideast city block. We are also not blind to Big Evil, alive and well in the arena of international politics (Name: Mwangaguhunga, Ron; born: Kampala, Uganda 1971). But as the forces of History propel us towards the growing importance of international law in resolving apparently unresolvable conflicts and, to that end, the multilateral pressuring of rogue regimes to conform to the inevitable collective will of the law, America, we predict, will have to navigate the treacherous narrows and rocky straights with what can only be properly construed as a sort of Wilsonian-Realism. Using this Wilsonian-Realism, the United States will have to protect itself from the traditional power political maneuverings of the Syrias and the Russias of the world, who will endeavor, mightily, to tilt the levers of the law towards their own Realpolitical ambitions. Of this we are most certainly not naive.

The issue of International Law is actually one of the fundamental questions of the 2008 Presidential race, whether or not anyone wants to admit it. The Corsair could see, for example, why the Obama campaign wouldn't want to bring this up: No one has ever won an American presidential campaign arguing over the vagaries of international law. It is a turkey of an issue in American domestic politics. Americans have historically been distrustful of international institutions and it would be a toxic addition -- for the Obama campaign, most certainly -- to introduce into the American political bloodstream. A skepticism towards "foreign entanglements" is embroidered into the very fabric of the American tradition going as far back as Washington's Farewell Address of 1796. We would be foolish to dismiss the paleoconservative "America First" tradition -- presently ascendant -- surfaces, in strength, whenever the United States is at an historical crossroads (Remember Neo-isolationism at the cusp of the First Persian Gulf War?).

International law was an issue that arguably influenced the Kerry campaign's loss in 2004. The Machiavellian same-sex marriage initiative in Ohio notwithstanding, we have never precisely calibrated the importance of the introduction of the Osama-bin-Laden video as well as Kerry's comments on international law in the closing days of the 2004 campaign on his defeat. "Kerry's Undeclared War" also originated in the New York Times magazine, this time by Matt Bai, but also with regards to international law. And the 8,000 word article was published late in the campaign, in the final weeks. Kerry told Bai in a fateful quote, "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance ... As a former law enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."

Predictably, the Bushies pounced, and -- mirabile dictu! -- Kerry lost (for many reasons, to be sure, including this). But an Age of International Law will come, after, perhaps, a prolonged period of international instability. Whether or not it comes in twenty years, or fifty years or far beyond our lifetimes, International Law is a logical conclusion to this present impasse and erosion of global will on the part of the soi-dissant "Party of Heaven." For further reference see: Somalian Piracy.

That Age will come, and hopefully not before we do such damage to our environment or ourselves through war that it becomes a survival imperative and not an elected choice by enlightened minds.

The full article here.

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