“The question is whether the welcome justice mobilization around the horrors he [Putin] has visited on Ukraine will also be applied to crimes committed by powerful Western actors.”
Here are the limitations of Reed Brody’s analysis:
“Any state could find a basis in law for almost any action, because ‘for every claim there is a counter-claim, and legalist opposition to war is therefore ultimately toothless’.”
Realists see the basis of global relations in the clash of state power. They are sceptical of ideas like globalisation and sceptical of the idea of international society. For them international law is no more than ‘a moralistic gloss on power politics’. It plays a useful role in obscuring the extent to which power is still the central determinant of how the world works.
The US wants and needs international law – consider the issue of patent protection or intellectual property rights, and so on. Yet it also needs its own freedom of manoeuvre. Because the US is the world’s most powerful state it has a greater capacity to manage and twist things to its own advantage, but all states reflect this ambiguity and thus so does international law.
There is an equally long history in international law where (and this must give Blair comfort) ‘great powers have always asserted a right of intervention in the affairs of small countries’.
To understand why this is we have to appreciate how international law emerges at the intersection of two processes. One was the development of the nation-state system, the other was the rise of capitalism. [China] Mieville argues that these are not separate or autonomous processes but developments that fed off and supported one another.
Because capitalism is a global system of commodity production organised through competing states, international law can only partially contain states. Inter-state competition is also the instrument through which international law develops.
Those supporters of international law who try to counterpose it to imperialism misunderstand its historical roots – imperialism made international law, and international law helped make imperialism and it continues to do so today. ‘Coercive political violence – imperialism – is the very means by which international law is made actual.’
International law cannot therefore transcend the system which gives rise to it. The legalistic argument is not only wrong because it cannot work. It is also wrong because those who support it fail to reflect on why international law is so ambiguous and limited.
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