Observations On Perception

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Political leaders, jurists and commentators increasingly describe international law through two apparently opposed narratives.  One announces its death under the pressure of war, national interest and imperial power.  The other proposes its restoration as the foundation of a more just international order.  The first interprets every unpunished violation as evidence that the law has ceased to command; the second treats renewed fidelity to existing rules as the beginning of international repair.  Both narratives convert an institutional condition into a question of belief.  International law appears either abandoned by those who no longer respect it or recoverable by those prepared to believe in it again.

The relations grouped under the name of international law do not constitute a single authority capable of being abandoned or restored in that manner.  Treaties bind the States that have accepted them.  Customary law develops through State practice and recognition of legal obligation.  Peremptory norms restrict what States may authorize even by agreement.  Courts exercise the jurisdiction conferred upon them, while political institutions depend upon the powers assigned by their constitutive instruments and the cooperation supplied by their members.  Each relation establishes a different connection among obligation, judgment and consequence.  No relation contains the whole.

The States that created the United Nations accepted principles intended to govern international conduct: sovereign equality, good-faith performance of Charter obligations, peaceful settlement of disputes and the prohibition against threats or force directed at the territorial integrity or political independence of another State.  The Vienna Convention on the Law of Treaties later affirmed that every treaty in force must be performed in good faith.  Peremptory norms of general international law admit no derogation, while Article 103 of the United Nations Charter gives Charter obligations precedence over conflicting treaty obligations.  These provisions establish normative priority.  They distinguish superior obligations from political preference and prevent every government from determining for itself the entire content of international legality.

The States that recognized those obligations did not establish a sovereign authority capable of enforcing them against every government.  States retained their legislative powers, military forces, police authorities and control over national territory.  International courts received defined jurisdictions rather than universal judicial authority.  International organizations received functions whose performance continued to depend upon decisions and resources supplied by member governments.  The resulting order can articulate an obligation that exceeds the will of a particular State, but its institutions cannot ordinarily execute that obligation without the participation of States.

This separation does not by itself prove that international law has failed.  It identifies the arrangement through which States sought to remain sovereign while accepting obligations beyond national discretion.  The arrangement permits law to coordinate governments without placing them beneath a world government.  It also leaves the institutions charged with judgment dependent upon many of the governments whose conduct they may be required to judge.

The United Nations Security Council gives the separation its clearest political form.  The Charter assigns the Council primary responsibility for maintaining international peace and security, and United Nations members agree to carry out its decisions.  Article 27 nevertheless allows each permanent member to prevent the adoption of a substantive resolution.  The governments entrusted with authorizing collective enforcement therefore retain the power to prohibit that enforcement.

The veto did not enter the Charter solely as a reward granted to the victorious powers after the Second World War.  It expressed a theory of international order.  The founding governments treated agreement among the great powers as a condition of organized peace because an institution that attempted to coerce one of those powers against its sustained opposition might provoke the conflict it had been created to prevent.  Permanent-member concurrence kept the strongest States inside the organization by assuring each government that the organization could not direct collective force against its vital interests without its consent.

The same assurance also limited the universality of enforcement.  A permanent-member government could prevent collective action against itself or against an ally, while a State lacking comparable protection remained more exposed to Council authority.  The veto thus joined two purposes that cannot always be reconciled: preservation of peace among the strongest States and application of common rules across unequal States.  The Council manages that conflict by making great-power agreement a prerequisite for coercive action.  When such agreement is absent, the institution preserves the participation of the powerful by withholding the consequence that an asserted legal obligation might otherwise require.

The resulting paralysis cannot be diagnosed as an administrative accident.  Nor can it be reduced to the bad faith of a particular permanent member.  A government may abuse the veto to protect unlawful conduct, but the capacity to withhold collective action belongs to the design itself.  The design anticipates that peace may depend upon refraining from an enforcement action that the applicable legal principles might support.  International order is then preserved through an exception to the authority by which that order claims to govern.

International courts reproduce the separation between judgment and execution through jurisdictional rules rather than voting privileges.  The International Court of Justice can adjudicate a contentious dispute only when the States concerned have accepted its jurisdiction.  The International Criminal Court can investigate crimes, issue warrants and determine individual criminal responsibility within the jurisdiction established by the Rome Statute, but national authorities must arrest and surrender the accused.  The judges determine the legal question; governments control many of the acts required to give the judgment material consequence.

A government’s refusal to execute a judgment does not erase the judgment.  A judicial decision can identify an obligation, establish a violation, preserve evidence, affect diplomatic relations and alter the legal or political conditions under which later decisions will be made.  Powerful governments are not immune from every consequence.  They may incur reputational damage, economic pressure, diplomatic restriction or domestic political opposition.  Their power permits them, however, to delay those consequences, distribute their costs, contest their legitimacy or prevent them from compelling the conduct ordered by a court.  Less powerful States possess fewer means of converting an adverse judgment into an extended dispute over whether the judgment should matter.

The operation of international law is therefore neither universal compliance nor universal impotence.  Governments perform international obligations throughout relations in which reciprocity remains beneficial or compliance does not threaten a governing interest.  The separation between legal obligation and operative authority becomes most consequential when compliance would restrict military action, interrupt a strategic alliance, expose officials to prosecution or impose substantial costs upon a powerful State.  The law encounters its greatest limitation where the government capable of violating an obligation also controls a substantial part of the authority required to enforce it.

That limitation reveals the relation by which an international legal order becomes an international rule of law.  A standard does not restrain power merely because a treaty or institution has stated it.  If its application depends upon the inability of the judged State to resist, the standard remains available as an instrument of power even when its language is universal.  A legal rule begins to govern the relation among States when the government invoking it against another State also accepts the authority of that rule to examine its own conduct.

Reciprocal subjection is therefore not an ethical aspiration added to an otherwise complete legal structure.  It identifies the difference between a rule and a privilege administered through legal language.  The rule may produce different judgments because conduct and circumstances differ, but the identity and power of the judged State cannot determine whether the standard remains applicable.  Without that reciprocal exposure, a government may preserve its authority to accuse while converting its own conduct into an exception beyond comparable judgment.

Observers often describe selective application as evidence that governments have lost moral integrity.  The description registers the discrepancy between legal profession and political conduct, but it assigns an institutional practice to a deficiency of character.  When officials invoke international law against an adversary, contest jurisdiction over an ally and reject an adverse judgment against their own government, they do more than fail to honor a professed value.  They administer the boundary between the cases in which law will authorize consequence and the cases in which power will prevent it.

The continued production of legal justifications shows that governments still seek the legitimacy conferred by international law.  Officials rarely present military intervention, territorial acquisition, refusal to cooperate with a court or protection of an ally as unrestricted exercises of national power.  They invoke self-defense, necessity, jurisdictional limits, treaty interpretation or institutional excess.  Those arguments may address genuine legal disputes, but they may also allow the government controlling compliance to present political resistance as a dispute within the law.  The institution may pronounce judgment while the judged government retains the capacity to determine whether the pronouncement will alter its conduct.

The language used to describe that government can conceal how the decision is made.  International law must attribute conduct and responsibility to States, but no State deliberates through a single consciousness.  Presidents authorize operations, ministers formulate policy, legislators approve resources, diplomats cast votes, military officers transmit commands, government lawyers construct justifications and judges determine whether domestic institutions may intervene.  The statement that “America,” “Russia,” “Israel” or “China” has acted identifies the State to which conduct may be attributed, but it does not identify the office that possessed authority, the official who exercised it or the sequence through which the decision acquired force.

Institutional language can produce the same concealment.  The Security Council does not cast a veto; the representative of a permanent-member government casts the vote under authority received from that government.  The International Criminal Court does not choose to leave its warrants unexecuted; national authorities with territorial control decline or fail to arrest the persons named in them.  The International Court of Justice does not extend its contentious jurisdiction by declaring that jurisdiction desirable; States establish or withhold the consent upon which adjudication depends.  When those relations are compressed into the statement that an institution has failed, a veto appears as institutional paralysis, noncooperation appears as judicial weakness and the withholding of resources appears as an incapacity belonging to the international system.  The abstraction converts decisions into conditions.

Correcting that concealment does not require transferring every responsibility to individual officials.  Institutional, State and individual responsibilities arise from different relations and cannot replace one another.  An institution remains responsible for exercising the jurisdiction and authority entrusted to it.  A State remains responsible for the obligations it has accepted and for conduct attributable to its public organs.  An official remains answerable for the decisions made through the authority of an office.  Institutional limits condition individual action without performing it, while individual decisions activate State powers without exhausting the responsibility of the State.

The present condition did not emerge from the corruption of a previously impartial international order.  The governments that designed the postwar institutions acted within relations already marked by empire, unequal power and selective recognition.  They incorporated permanent-member concurrence, jurisdictional consent and dependence upon national enforcement into the architecture from the beginning.  An appeal to restore a lost rules-based order can therefore idealize an arrangement whose protections were never distributed with the consistency its universal language implied.

Open repudiation nevertheless changes the operation of a compromised order.  A government that constructs an exception still acknowledges that its conduct requires legal justification.  A government that sanctions courts, threatens judicial officials or denies the authority of external judgment contests the requirement to justify the exception at all.  The first government seeks to control how the law applies; the second claims the power to determine whether the law may judge.  The distinction matters because the demand for justification, even when manipulated, preserves a relation in which reasons can be examined and responsibility assigned.  Its rejection converts resistance to a judgment into a claimed prerogative beyond judgment.

Precise attribution cannot eliminate the veto, compel State consent or provide an international court with its own police authority.  It can disclose what those arrangements contain.  An allegation that names no legal obligation, jurisdiction or responsible authority cannot establish who has violated a rule or who possesses the capacity to act.  A declaration of institutional incapacity that does not identify the government withholding consent, cooperation or resources presents a political decision as an impersonal limit.  A judgment confused with its execution attributes powers to a court that the States creating the court never granted it.  An unexecuted judgment confused with the absence of obligation allows governmental resistance to determine the content of the law.

These distinctions do not constitute a program for reform.  They preserve the allocation of responsibility within the order that exists.  The institution must remain visible where its jurisdiction begins and ends.  The State must remain visible where international obligation attaches to public conduct.  The official must remain visible where authority becomes decision.  Removing any one of these subjects permits the remaining abstraction to absorb an agency it does not possess.

The highest command of the international rule of law can be stated only after these relations have been distinguished: no State may convert the law it invokes against others into an immunity it administers for itself.  That command follows from the difference between a general rule and a standard whose application remains controlled by the power it purports to restrain.  A legal obligation may exist without immediate enforcement, and a judgment may retain authority without execution.  The rule of law nevertheless fails when the government subjected to judgment can determine whether the same standard that binds another State will reach its own conduct and whether any adverse judgment will acquire consequence.

International law therefore need not be declared dead or summoned to moral renewal.  Its treaties, norms and institutions continue to articulate obligations, coordinate conduct, establish violations and preserve judgments that governments may prefer to erase.  The contemporary crisis lies elsewhere: the States with the greatest capacity to enforce international law also retain the greatest capacity to obstruct its enforcement, while the officials who exercise that capacity disappear within the names of institutions and States.

The international order recognizes normative limits that no government is entitled to define alone, yet it entrusts much of their operative force to governments capable of resisting them.  That contradiction cannot be resolved by assigning responsibility to international law as though international law were an acting subject.  Institutions exercise conferred authority, States accept and violate obligations, and officials make the decisions through which authority is exercised or withheld.  The law commands through those relations, and its command fails where the actors entrusted with giving it consequence retain the power to decide when it will count.

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