Just Musing

[jackofallgeeks]

This is
something that's bugged me from time to time, whenever I read about
International relations. To put a name to it, the fact that there seems to
be relatively few ways to actually enforce international 'rules.' The
article is talking about how the head of Sudan has been accused of war
crimes, but Sudan doesn't recognize the court that's making the
accusations. I believe it was Locke's view that international relations was
as close as modern man got to "the state of nature," which rather cynically
holds that brute force is the only true rule (might makes right, mostly
because who's going to stand up to you?).

Comments

[dikaiosunh.livejournal.com]

Hobbes.

Also, "might makes right" isn't really the rule in the SoN. Hobbes' idea is that, in a SoN, you have a "right of nature" to take whatever you want (there is no justice without enforceable agreement). But, the first *law* of nature is "seek peace" (since reason will tell you that the war of all against all is against your interests). For Hobbes, only a state can bring peace, and so you should seek to create a state (Leviathan) to enforce contracts. The logic of this argument pushes in the direction of a global state - the usual reason given for not having one is either relative non-interaction of states (false, at least now) or simple impossibility.

On your original point... there's a huge discussion here, but I'd point out that enforcement isn't the end-all and be-all of law. For instance, if all law had to be enforceable, US Constitutional law would not be law (as Jackson said, "Justice Marshall has made his decision. Now let him enforce it.")

[jackofallgeeks.livejournal.com]

I've never read Hobbes, though I have Leviathan sitting on my shelf and (like most books) I keep intending to read it. Over and over, though, it seems many of the things I attribute to Locke come from Hobbes.

As for the second point, though, I guess it depends on how you define a law. I'm not exactly sure what you mean by Constitutional law being unenforcable (my general understanding of the Constitution is that it's mostly restrictions put on the Government, not the people, but I was never a great Civics scholar). That aside, though, what good is a law if it's unenforcable? Without teeth, a law might as well not exist, no?

[dikaiosunh.livejournal.com]

Well, SCOTUS decisions are primarily binding on the legislature (these laws you made don't count) or executive (don't enforce these rules). It's only secondarily that they are enforced on the people (now the police can come for your medical marijuana, no matter what California says). But the SCOTUS itself doesn't have any power to make the President, etc. do anything.

But I don't think that we should say, "oh, well, SCOTUS decisions are irrelevant." Most of the time, they are obeyed - and even when they're not, it's rare that anyone just says, "nope, not going to listen" (I mean, the current admin has gone to a lot of trouble to "reinterpret" SCOTUS decisions on detainees, rather than just ignoring them). You could say that this is because there's a kind of "enforcement" through societal legitimacy - if the President just started blatantly saying that he was ignoring the constitution, there might well be a coup or revolution (or at least a price to pay in November). But that sort of "enforcement" is also present in the international system (trust me, if you want sweetheart trade deals, you'd rather be Ghana than Sudan).

[uhlrik.livejournal.com]

One of the issues with international law is that it often runs up against one of the biggest issues in international relations: sovereignty. Essentially, there are jurisdictional issues that are fundamental to the modern conception of the nation-state (dating back to the Westphalian Peace) that run counter to having such a thing as international courts interfering with individual governments / officers when they're acting within their own borders.