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International Law and the Criminal Court

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One area that could receive more attention from libertarian theory is international law. On occasion I'll see some crank libertarians rail about international law, and this always puzzles me. Unlike modern municipal (national) legal systems—common law, civil law—that have been ever more corrupted by an unending wave of legislation (see my Legislation and the Discovery of Law in a Free Society), international law remains relatively decentralized and based on more or less general principles of justice—more like the original common law, ancient Roman law, and the Law Merchant.

Modern municipal law has become basically positivistic. The main arguments open to people to challenge a given unjust law are more or less technical argumented based on the pre-existing rules of the game. Or, as Belgian libertarian law professor Frank Van Dun writes, under modern law, it is increasingly the case that

the point of argumentation in a court no longer is to reveal which actions are justifiable and which are not but merely to determine which party complied with some set of arbitrary politically imposed rules. Then argumentation gives way to a contest in which one "legal mind" tries to outwit his opponent in a game that turns primarily on one's skils in combining officially recognized legal classifications of facts, legal rules, and other legal data as precedents, and currently fashionable notions into a "strong case."

Sure, advocates employ moral suasion, but that is more to try to persuade a judge or jury to act where there is a gap in the law or confusion or a gray area, or to construe a broader provision such as some of those in the American Constitution. But the role of normative discourse is, technically, irrelevant. Even if one could somehow establish, in court, that a given statute is "unjust," that does not mean that the judge won't enforce it. There is no "injustice" exception in modern statutory law.One promising aspect of international law, by contrast, is that it is much more normative than conventional municipal legal systems, and more subject to hortations of commentators, who are more free to insert common sense moral intuitions.

In fact, Article 38(1) of the 1946 Statute of the International Court of Justice, generally recognised as a definitive statement of the sources of international law, specifically refers to "the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law". Now this is not the primary source of international law. The writings of publicists is supposed to be only evidence of what the rules of international law are, and are only a "subsidiary means" of determining what the law is, but as the renowned international law expert Ian Brownlie as noted, "in some subjects individual writers have had a formative influence," and despite some publicists trying to influence what the law should be rather than "providing ap assive appraisal of the law" (which Brownlie seems to frown upon), "the opinions of publicists are used widely." Now imagine if our legal system included this as a "source of law"! At least we would have a fighting chance.

And the other sources of international law are not so bad either, compared with those in municipal legal systems, which is basically the will of the state or the majority as decreed by the state. These other sources include international conventions, international custom, and the general principles of law recognized by civilized nations. What are the "general principles of law recognized by civilized nations"? — things like, don't murder, don't steal (don't initiate war); cooperate (treaties); respect others' property ("sovereignty"); respect your agreements (pacta sunt servanta—agreements/treaties are to be abided by; etc.. It tends to say to belligerent states: your act of war is unjustified; protect civilians; etc. As noted above, international law is more akin to the ancient law merchant, roman law, and common law, which was less corrupted by state's influence than is modern municipal law (i.e., the law of given states).

Of course international law it has been corrupted to some degree by the UN's manipulations, but on the other hand, it to some degree even in its imperfection serves as an institutional impediment to the imperialistic aims of any one state. And it is much more based on sound principles of justice compatible with libertarianism than modern legal systems have become, precisely because it is not dominated by legislation and enactments.

Now, the sources of international law may not make it exactly synonymous with libertarian utopian dreams, but imagine if our modern states were held to such standards! Most of modern statutory law would not be able to withstand scrutiny. And since a primary basis of international law is "general principles of law recognized by civilized nations" rather than what a particular provision of a statute such as, say, the Americans with Disabilities Act, then the moral or normative opinions of commentators is likely to be more relevant. In this sense international law is more similar to a genuine common law system than today's statute-dominated systems. In a trial in which the judge is trying to do justice, it actually might be somewhat relevant, and maybe not even futile, to point out that it would be, well, unjust to rule a certain way. Whereas, even where legal experts are consulted to find out what the law is in a modern trial, the question is almost always what is the meaning of given statute, which itself is often not just in the first place.

Hell, Art. 38 even permits the ICJ to decide a case ex aequo et bono (according to fairness, or equity—what is "right and good") if the parties agree. Even in a private case between two parties in today's legal system, the court can't agree to this; at most, the parties can resort to private arbitration to achieve get a hearing based more on equity and justice than on statutory law (but even here, it can't stray too far from what the state's courts regard as "public policy," or the courts won't enforce the arbitral decision).

Having the opinions of "the most highly qualified publicists" enter into the picture as one authorized possible source of law would be a vast improvement over today's system—even if we grant that most law professors and academics are somewhat leftist. It is still the case that the policies favored by even conventional legal scholars, which at least sometimes take into account of simple moral intuitions, are far superior to those that tend to be embodied in state-enacted statutes. Such commentators are often anti-torture and anti-war, for example.

For these reasons I would say that international law tends to be more general and more consistent with libertarian general principles than municipal law, certainly modern statutory law.

***

I was spurred to do this post when I received today the article An Empire of Law?: Legalism and the International Criminal Court from the author, Ole Miss law professor Ronald Rychlak, with whom I've corresponded in the past. He seems to be fairly libertarian—see his previous correspondence with me, in which he was receptive to my defense of libertarian rights; he told me his co-author, John M. Czarnetzky, is big into Austrian economics and Rychlak also majored in economics, with Benjamin Rogge as a major influence—plus, his article rightly opposes the International Criminal Court. He concludes:

The quest to end impunity in human affairs and to punish those who commit gross violations of human rights is a noble cause that will, hopefully, one day bear fruit. History teaches, however, that the devil can dwell in the details of the most nobly intended institutions. The ICC [International Criminal Court], as it was designed in the Rome Statute, is a flawed institution which contains the seeds of the Court's eventual desuetude or worse, of causing greater harm than the crimes it was intended to redress. ...

An effective international tribunal, one which will do most of the good that its proponents posit for the ICC, cannot rest upon an unbridled faith in legalism. With the ICC, however, the yearning for an end to human-rights abuses has led a significant portion of the international community to look only toward mechanistic legalism, enforced by an unaccountable court. In doing this, the ICC is essentially imposing the "unconditional surrender" model of Nuremberg on all future transitional societies. No room is left for political compromise. This, of course, means that the ICC is taking some potential tools for peace off of the table. That is a dangerous thing to do.

Law itself is an instrument of politics, and therefore does not transcend human beings and our foibles. Though it is unfashionable to assert, humans have no choice but politics when we discuss just resolutions of difficult situations. Put differently, the fallible human beings who will run the ICC, though garbed in the mantle of positive law derived from noble human-rights norms, will still just be human beings. If history teaches anything, it is that human beings with unchecked, absolute power will eventually abuse that power. In the case of an international tribunal with the power decisively to affect the future of entire peoples, the stakes are far too high to deny such a truth learned through so much hardship over the centuries.

Rarely are law professors so sensible about the danger of centralized power. (And see also Michael S. Rozeff's LewRockwell.com article, To Back the International Criminal Court or Not?.)

For more international-law related commentary for libertarians with an interest in this:

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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