Tag Archives: ‘Voluntary’ International Law

The Decline of International Law: Reflections of a True Believer

27 Jan

[Prefatory Note: This post was initially published on January 27, 2020 in a Turkish online publication, Fikir Turu, and is slightly modified below.]

 

The Decline of International Law

 

There is widespread agreement that international law is experiencing a sharp decline in

relevance when it comes to foreign policy, especially in the eye of the public. At first glance,

this seems surprising. The digital age and economic globalization require more than ever a reliable regulatory framework to enable international transactions of many types. The growing complexity and networked style of international relations would lead most observers to anticipate an increased role for international law, and in many spheres of transnational activity, this has happened. In this respect, the public is somewhat misled when it generalizesits impression of decline to the whole of international.

 

The impression of decline derives from high profile issues of governments acting without regard for international law, especially in the area of peace and security. A recent such example is the drone killing of a leading Iranian general, Qasem Soleimani, while on an apparent diplomatic visit to Baghdad at the invitation of the Iraqi Prime Minister. More revealing, perhaps, is the seeming international disregard of flagrant war crimes by the Assad Government during the civil strife that has brought such mass suffering to the Syrian people since 2011. Also, the genocidal massacres of the Rohingya people in Myanmar or the military coup staged by General Sisi in 2013 against the elected Egyptian government of Mohamed Morsi raised few cries of official protest about such flagrantly unlawful behavior. Even the gruesome murder of Kamal Khashoggi in the Saudi Consulate in Istanbul last year, while bringing tears to the eyes of many, brought no meaningful international response to such an outlandish state crime.  

 

The Trump presidency has reinforced this impression of decline, bordering on irrelevance, by its unilateralism in foreign policy—the 2018 move of the U.S. Embassy to Jerusalem in violation of the UN consensus that the future of the city be determined by negotiations; the legalization of Israeli settlements in the West Bank despite their clear violation of Article 49(6) of the Fourth Geneva Convention and prior Washington policy, the disruptive withdrawal from the from the 2015 Iran Nuclear Agreement (JCPOA) and the Paris Climate Agreement finalized the following year. Overall, global issues that are reported on by the media strengthens this impression that international law is not respected by many governments, and nothing adverse happens to them as a consequence.

 

Yet there is more to international law than this negative impression leads us to believe. The entire fabric of the modern world is dependent on a generally respected international law framework. Without this framework every standard activity from tourism to diplomacy to trade and communications, as well as maritime and commercial air safety, would produce chaos on a grand scale. The reality is that we take most of the international law dimensions of the modern world for granted, never think about it, or if we do, we are grateful for bringing this kind of order into our everyday activities. On a larger scale governments and businesses plan many large-scale long-term operations on the assumption that international law guidelines can be relied upon. In other words, in many spheres of international life, international law is dependable, and is mutually beneficial both for ordinary people and for powerful actors.

 

Yet, the impression of decline is real when it comes to peace and security, human rights, and cooperative global problem-solving for such challenges as climate change and migration. It was not always quite this way. The United States, in particular, but many important countries believed in extending the rule of law as far as possible in international arenas. There was a widespread belief about World War II that a law-governed world order was essential to avoid the disastrous recurrence of major warfare and another economic collapse of the magnitude that brought on the Great Depression of the 1930s. Unregulated nationalism was seen as a severe threat to a peaceful and prosperous future for humanity, including those states with a geopolitical agenda. Even the development of a human rights architecture within the UN embodied the liberal faith that adherence to a common set of legally grounded values, as qualified by civilizational diversity, would be of benefit to the whole of humanity.

 

Yet, there were always major limitations to what could be achieved by a law-oriented approach to world order. Even the UN was framed in such a way that it exempted the most powerful, and generally the most dangerous states, from an obligation to comply with international law, including even the UN Charter. This exemption was signaled to the world by making the five dominant governments in 1945 permanent members of the UN Security Council, and more consequential, conferring on them a right of veto, which was a way of making international law inapplicablewhenever it was really needed to curb the behavior of these large states and their smaller friends who could always be shielded from legal obligations. Such shielding has been long done most spectacularly by the United States in relation to Israel. The best takeaway is that for geopolitical political actors, international law is a matter of convenience, not obligation.

 

There are also issues bearing on the effectiveness of international law that arise from the decentralized nature of world order. States even in the aftermath of a great war that caused widespread forebodings about the future were never willing to entrust the UN with enforcement capabilities. What enforcement occurred was the work of geopolitics, the willingness of large states to intervene for the sake of preventing severe criminality, itself usually instances of dubious legality. Arguably, this was what happened in 1999 when NATO acted to prevent Serbian criminality in Kosovo or when international sanctions were imposed by various countries on South Africa to bring apartheid to an end can be used as examples of extending international law in the face of state sovereignty and through circumventing a geopolitical veto. Yet depending on geopolitics to uphold international law is generally not a good idea. Geopolitical motivations are self-interested, strategically contoured, and ideologically driven, with the language of international law, democracy, and human rights often used as a cover to soften criticism. Over the decades, American sanctions were imposed on Cuba because of its Marxist orientation toward governance while countries with far worse human rights records, such as Guatemala or Chile under Pinochet, were not punished because they were allies. In other contexts, such as the struggle of the people of Tibet, Chechnya, and Kashmir, the costs of confronting China, Russia, and India were deemed impractical, with costs far too high to justify intervention, and to the extent concerns were expressed, it was done by way of hostile propaganda in which the moral message was submerged beneath clouds of partisanship.

 

Yet these structural problems of world order are also not the whole story. World history, which seemed in the struggles against fascism and colonialism and, later, in the collapse of the Soviet Union, to be heading toward greater reliance on international law, the UN, human rights, and the belief that only constitutional democracies were legitimate, but something happened to reverse these trends. What has happened in the 21st century is the rise of authoritarian leadership in virtually every important country on the planet, often by anti-democratic governing processes, but more surprisingly, by electoral choices in functioning constitutional systems such as India, Brazil, Philippines, and the United States, among others. The trend is global, which suggests structural dimensions, but each national narrative reflects particular conditions. Some explanations have stressed populist backlashes against neoliberal globalization and the impact of many dimensions of inequality it has brought about or the related effort to strengthen feelings of national identity and community in the face of migrants or the homogenizing impacts of transnational franchise capitalism. The cumulative effect of these developments is to elevate even the most arbitrary authority of the national leadership beyond any notion of accountability to international rules and institutions, making the perception of decline real, alarming, fostering a nihilistic mood at the very historic moment when constructive cooperative action is desperately needed. Added to these negative features of the present reality,  current prospects for reversing this decline are not favorable seem virtually non-existent.

 

Yet we can take a small comfort in the radical uncertainly of the future in which what is anticipated rarely happens. Less visible contradictory forces are present, mostly below the surface, making despair inappropriate, and calling on all of us to act on and struggle for the future we seek. It is this uncertainty that alone allows us, even mandates us, to be hopeful about the future, and to act as citizen pilgrims seeking a better future for humanity.

‘Voluntary’ International Law and the Paris Agreement

16 Jan

 

Now that the celebrations by the diplomats have ended, it is time to take a hard look at what was and was not accomplished by the Paris Agreement. No one can deny that it was impressive to obtain agreement from all 195 participating countries, an outcome many doubted. A further achievement was the acceptance of the scientific consensus that global warming was an unprecedentedly severe global challenge that needed to be addressed with a sense of urgency and commitment by the world as a whole. Further, it was important that the agreement set forth in its text the ambitious goal of 1.5C degrees as the prudent ceiling for tolerable warming, while seeking to avoid an increase of 2C degrees, even while being aware that this latter would still result in serious additional harm but would be far less likely to be catastrophic than if emissions are allowed to increase without a global cap.

 

Worrisome Concerns

 Closer examination reveals several worrisome concerns. It is widely understood that international law is often ineffective because it lacks adequate means of enforcement when it prescribes behavior that obligates the parties. That is, international law is inherently weak because unable to enforce what is agreed to, but Paris carried this weakness further, by raising serious question as to whether anything at all had even been agreed. The Paris Agreement went to great lengths to avoid obligating the parties, making compliance with pledged reductions in carbon emissions an unmistakably voluntary undertaking. This is the core cause for doubt about what was agreed upon, raising the haunting question as to what emerged from Paris is even worth the paper upon which it is written. Only time will tell.

 

Prior to the Paris Agreement there were two models of an agreement process to address climate change. Both of these are now viewed as failures. There was the Kyoto Protocol of 1997 in which a mandatory treaty framework was negotiated resting on a sharply delineated division between developed countries that were required to make enumerated reductions in carbon emissions and the rest of the world that was under no obligation because their right to unrestricted development was affirmed. Then there was the Copenhagen Accord contrived on an ad hoc basis in 2009 mainly at the behest of the United States, a loose agreement reflecting American post-Kyoto concerns that the only viable international response to the threat of global warming was by way of obtaining a series of unverified voluntary pledges from national governments.

 

It is evident that in its central endeavor the Paris Agreement seeks to improve upon the Copenhagen model while rejecting the Kyoto model. In effect, the stability of an obligatory framework has been exchanged for the benefits of an inclusive arrangement that involves all countries, that is, weak on substance, strong on participation. What makes Paris seem a success whereas Copenhagen was written off as a dismal failure is partly atmospherics, or put more concretely, the skillful French management of the proceedings so as to create an impression of genuine collaboration and transparency. Also helpful was the American adoption of a low profile, operating behind the scenes, exerting the kinds of influence that did not create the sort of resentment that so badly marred the Copenhagen outcome.

 

This repudiation of the Kyoto approach is disturbing in some respects, but understandable, and even laudable, in others. Kyoto, although legally authoritative, only managed to gain the participation of states accounting for 12% of total emissions. This tradeoff between the two agreement models parallels the experience of the League of Nations that respected the sovereign equality of states, contrasting with the United Nations that privileges the five states that prevailed in World War II. The more idealistic League was a total failure because several crucial states, including the United States, refused to join, while the UN, although disappointing in relation to its war prevention record, has managed throughout its entire existence to achieve near universal participation. Even alienated and isolated states have valued the benefits of their UN membership and refrained over the decades from opting out of the UN. This experience supports the significant generalization that international lawmaking often does better when it is procedurally ambitious than when it tries to override and constrain sovereign discretion to act in areas perceived as matters of vital national interest by leading states. In the climate change context this choice can be further rationalized by an acknowledgement that the US Congress has the capacity to block any legally binding agreement, and without the United States as a participant the whole effort is wasted. It should be appreciated that the US Congress may be the only governmental site of influence in the world where a majority of its members reject the scientific consensus on climate change and gives aid and comfort to the deniers.

 

Can International Law Effective When Adherence is Voluntary?

 Although this voluntariness is problematic, it may not doom the Paris Agreement. Some non-obligatory international norms have produced important results, managing to obtain voluntary compliance, and even exceeding the original expectations of their supporters. Among many examples in international law, upholding the diplomatic immunity of ambassadors is a clear example of where the norm is unenforceable yet diplomats from small countries have almost always received the same protection over the centuries as those from the largest and most powerful countries. Why? It better serves the interests of the powerful to sustain a reliable framework of diplomatic interaction than to diminish the status of diplomats from weak states. From a different domain of international concern, we can point to rules of the road on the ocean designed to promote maritime safety. International law tends to be effective whenever compliance is more or less automatic. This can happen either because there is no significant incentive to violate what has been agreed upon or there are reciprocal gains achieved by maintaining reliable standards.

 

There are additional settings where international law is effective. One of the most prominent instances, although controversial, is the selective implementation of international norms prohibiting the acquisition of nuclear weapons. The United States acts as a geopolitical enforcer, and has been relatively successful in preventing those governments that it distrusts or opposes from acquiring the weaponry. The nonproliferation regime is defective from a rule of law perspective to the extent it is not applied equally to all non-nuclear states. Israel’s secret acquisition of nuclear weapons has been overlooked, while Iran’a nuclear program has received unprecedented scrutiny with a commitment to enforce nonproliferation by recourse to war if necessary. Beyond this the NPT regime became negotiable in 1968 only because the nuclear weapons states formally committed themselves to seek in good faith nuclear disarmament. Their failure to do so should have undermined the treaty from an international law point of view, but so far this refusal of compliance has been rhetorically noticed by non-nuclear states, but without producing a challenge to the agreement itself.

 

Paris Vulnerabilities

 

Part of the reason to be skeptical about the Paris Agreement is that the United States is unable to play the role of being a credible enforcer, and this means that there is no robust informal extra-legal pressure to comply. This weakness of the Paris arrangement is accentuated by several other factors:

            –the challenge of global warming is truly global in scope, yet the agreement reflects the aggregation of national interests. Its voluntary nature reflects the ethos of the lowest common denominator. International society can often cooperate to solve transnational problems, but it falters when the problem is truly global, especially as here where the various states have vastly different policy priorities, material circumstances, and divergent perceptions as to how fairly to apportion national responsibility for emission reductions and financial transfers;

            –many governments are constrained by mass poverty and low levels of development and seem likely to give priority to jobs and economic growth if facing economic pressures, making them also susceptible to manipulation by the private sector and international financial pressures;

            –the Paris Agreement seems particularly vulnerable to ‘the free rider problem,’ creating incentives for states to make minimum contributions while benefitting from the contributions of others; this is especially true in the climate change context since the problems are not correlated with international boundaries and the causal connections between emissions and harm are notoriously difficult to establish. This means that a state will benefit from systemic responses even if it fails to do its agreed part, while being only marginally protected by its own emission curbs;

            –often the success of a negotiated complex agreement is a result of diplomatic leadership, which has been a role that the United States Government has played in the period since 1945. The elaborate treaty establishing the public order of the oceans, one of the great success stories of international law, came about only after a decade of negotiations that were shaped by American leverage, persuading groups of states to accept concessions in exchange for benefits. For instance, the territorial sea off the coast of countries was expanded, and an exclusive economic zone was established, in exchange for preserving the freedom of the high seas for naval vessels. Because of the unevenness of national circumstances in relation to climate change the need for this kind of leadership would undoubtedly have led to a more robust agreement. This was politically impossible because the US Congress is opposed to any US national commitment with respect to climate change that results in any economic burden or commitment relating to energy policy, and the Executive Branch, despite its acceptance of the scientific consensus as to the severity of the climate change challenge, could not ignore this weakness of domestic support without suffering a humiliating rebuff as happened after Kyoto that seems more damaging to regulatory efforts than giving up an insistence on binding legal obligations;

            –without enforcement or even an obligation to comply, there are some circumstances where ‘naming and shaming’ create pressures can induce a fairly high level of compliance. The Paris Agreement by emphasizing the transparency of commitment, the monitoring of pledge fulfillment, and the reset opportunities given at five-year intervals would seem to create a situation where naming and shaming could partially compensate for the absence of formal compliance mechanisms. Unfortunately, governments of sovereign states are normally very reluctant to criticize each other in public space, absent hostile relations. The UN also refrains except in extreme cases from voicing criticism of the behavior of its members that names and shames.

 

The Waiting Game

 

Against this background, it becomes evident that the Paris Agreement should neither be celebrated nor rejected. It is a process that is only scheduled to go into effect in 2020, with an assessment period of five years, meaning that there will be no official audit as to the adequacy of the pledging approach until 2025. Even should the pledges on record be upheld, which seems unlikely, the trajectory relating to climate change points toward an increase in global warming by over 3C by the end of the century, far above the 1.5C recommended by experts, and exceeding the 2C degree ceiling that the Paris Agreement sets forth as a goal. This gap needs to be made visible to the peoples of the world, and steps taken to raise pledging expectations to a level of problem-solving credibility.

 

There are two perspectives that are each useful in evaluating the Paris Agreement. First, there is the problem-solving perspective that views the essential issue as adjusting energy policies to global warming prospects through cuts in carbon emissions and increased reliance on renewable forms of energy. The discussion above, as well as the inter-governmental text emerging from Paris, viewed climate change as a problem to be solved, with success or failure measured by reference to the rising of global mean average temperatures throughout the planet.

 

Secondly, there is the climate justice perspective that focuses on the fairness of the negotiated arrangement from the distribution of burdens and benefits, and by reference to those who are most vulnerable to global warming. Those most vulnerable are societies and regions that seem likely to become hotter than the average or have low-lying, heavily populated coastlines and lack the financial resources and technical knowhow to prevent and react in ways that minimize the damage. It is also the case that the 350 million indigenous peoples were unrepresented in Paris, and for various reasons are particularly exposed to the harmful effects of climate change. Issues related to pre-2020 ambition involving financing and control of emissions are also mentioned in the Preamble. Also Finally, Paris did not make any serious effort to represent, worry about, and take account of the rights of future generations.

 

Due to pressures mounted by the governments of vulnerable states and by the civil society groups, climate justice concerns were not totally ignored, being enumerated as a laundry list in the Preamble. These concerns focusing on human rights are not addressed in the operational provisions that are the heart of the Paris undertaking. Their relevance is, however, acknowledged in the Preamble to the Paris Agreement. Normally, the language of the Preamble of an international agreement is window-dressing, without substantive relevance. Here it is different. NGOs can invoke the language of the Preamble to hold governments accountable.

 

In the end, the fate of the planet will be decided by people, and not by governments. It is only by populist mechanisms of mobilization that the human and global interest will be articulated and protected. Governments can cooperate to promote common or overlapping shared interests, but where these national interests are so diverse and often contradictory, the aggregation of national interests is not capable of generating an agreement that adequately serves the human and global interest. This limitation of state-centric world order is magnified in relation to climate change because of the numerous disconnects between the locus of emissions and the locus of harm; only a globally constituted framing of the climate change challenge could produce an outcome that was satisfactory from both problem-solving and climate justice perspectives, and this will never be achieved by way of a Paris style meeting.

 

A responsible and equitable response to climate change after Paris depends on militant civil society activism that builds a transnational movement that both monitors the harms and the behavior of governments, but also focuses attention on the root causes of global warming: the capitalist drive for consumption, the militarist drive for dominance, and modernist drive toward

Technological solutions. Beyond this what is at stake is the recovery of the humane wisdom and spiritual consciousness of indigenous peoples that survival and happiness depended on respect for the natural surroundings. Of course, we should not romanticize the pre-modern or demonize the modern. What we need and should seek is a moral epistemology that reconnects knowledge with human values configured so as to achieve justice, sustainability, and the pleasures of ‘a good life’ (community, material needs, humane governance, spiritual alertness, opportunity and enlightenment). Such is the knowledge background needed to launch the revolution of our time.