International law is having a bad couple of decades. Militarily,
the 1990s were a disaster for the old-fashioned notions of state
sovereignty and the comity of nations. NATO waged an undeclared war
against Yugoslavia without UN permission; the United States sent
soldiers into sovereign Haiti and anarchic Somalia; and the
perennial problem of Taiwan was postponed midway through the
Clinton presidency by carrier diplomacy. In the humanitarian
department, Rwanda was left hung out to dry, every safeguard set up
by international law abandoned and ignored. The biggest bamboozle
in diplomatic history took place in the UN itself, where the
international community allowed Russia to seamlessly inhabit the
seat given up by the defunct Soviet Union, based on the idea that
opening that particular can of worms served no one’s interests.
The opening years of the 21st century have not been kind to
international law, either. What is happening in Darfur is and has
been expressly labeled genocide, and yet the world body set up to
prevent it from ever happening again continues to dither. The
untenable half-sovereignty of Iraq between the wars created a
bizarre zone of partially-enforced international law, benefiting
the Kurds but permitting Saddam’s government to flaunt standing
Security Council resolutions one after the next. The result was a
war that adhered to the spirit of international law but not the
letter of it, because the Security Council itself was driven by
France and Russia to reject the use of any coercive
enforcement of resolution 1441. After the murder in Baghdad of one
of international law’s best, Sergio de Mello, the United Nations
threw up its hands completely.
Then there is the little matter of nuclear proliferation. The
great powers agree that what happened in Pakistan and India cannot
be allowed to happen in Iran. But it did happen in Pakistan and
India, and the American reaction has, by necessity, been to cozy up
to the Indian program and hold it close. Meanwhile a fresh limbo is
thrown up around Pakistan, whose nuclear program is meant for the
sort of house arrest already penning in nuclear godfather A.Q.
Khan. And Iran, not to be trusted like India, is given no
quarter.
MANY OF THESE OUTCOMES are just as well, and some of them are to be
preferred over what would have happened had international law ruled
with an iron first. But the price of global policy entrepreneurship
has been an unprecedented weakening of the legitimacy of
international law. The Nuclear Nonproliferation Treaty (NPT) is a
dead letter; nuclear aspirants are dealt with ad hoc, on a messy
and inefficient case-by-case basis. Iraq has still not been
renormalized in the international system, because the people of
Iraq have more pressing concerns on their mind — such as the
desire of neighboring states for Iraq to be kept in yet another
limbo.
Across the board, on all the major issues of the day,
international consensus has disappeared. Sometimes even individual
crises and cases cannot meet the basic standard of unity required
of the planet by the post-World War II international order. The
case of Iran is as close to that unity as we have come since the
first Gulf War. But the dance of doom in which we are presently
engaged over a nuclear Tehran illustrates how unpopular the status
quo has become — even this status quo, which is brimming with
contradictions and lacunae.
HOW BAD IS IT? The experts, as is their wont, differ — we even
lack consensus on how much consensus we’ve got. Nuclear
nonproliferation is at the heart of the dispute, the perfect test
case for international legitimacy. Standard-bearer for the
international policy establishment Foreign Affairs
features a running battle between optimists and pessimists.
Professor Sumit Ganguly writes off illegitimacy as outdated:
The arguments the critics make are well-known and amply
rehearsed: giving such a concession to India will reward
irresponsible behavior (i.e., developing nuclear weapons while
keeping aloof from the nuclear Nonproliferation Treaty regime); it
will encourage further proliferation (from states such as Iran,
North Korea, Brazil, and Pakistan); and it will spur sales to
potential proliferators by other nuclear suppliers (such as China,
France, and Russia). Even if familiar and superficially plausible,
however, all these criticisms are without merit.
But former Assistant Secretary of Defense Ashton Carter argues that
the international legitimacy of nonproliferation benefits U.S.
interests
directly:
A crucial but underappreciated element of a successful
policy is getting as many countries as possible not to develop WMD
in the first place. The United States has dissuaded Germany, Japan,
South Korea, Taiwan, and Turkey from going nuclear by forging
stable alliances that offer these countries better security than
they could achieve through unconventional weapons programs of their
own. A peaceful and just world order led by the United States is
the reason why only a few of the world’s nearly 200 nations are
proliferation “rogues.”
Ganguly is right that dealing properly with India despite the
irregularities in nonproliferation policy that result. But Carter
is just as right to insist that consensus and control have an
inherent value — not just to “international peace and security”
but to the tangible national interest of the United States. In a
world where the only rule is there are no rules, it can be exciting
but exhausting to be a hegemon. That the modern international order
has often failed the world and disappointed American hopes to
enforce it with a coalition of willing states does not mean that we
should learn to do without an international order that works.
THIS IS THE REASON why Bush is right to have paid so much attention
to the United Nations, and why Bolton is right to diligently earn
the respect of his international colleagues. But it is also the
reason why we should take a look at the institutions that work —
NATO is paradigmatic for the U.S., and the EU for Europe — and ask
ourselves why they do. The inevitable answer is that organizations
like NATO and the EU embody the consensus that defined their
creation. Nations that share that consensus apply for membership
and are accepted upon meeting measurable criteria. The Kyoto treaty
on global warming was bad, from this perspective, because it failed
to hold all would-be member states to criteria acceptable to the
membership as a whole.
As we think about the real and necessary project of overhauling
the international order in tune with consensual legitimacy, we
should be prepared to establish new institutions that reflect the
desires of the world’s representative democracies — and in so
doing, lift international law out of its own limbo.
