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B+ : good introduction to international law -- and its subversion by the jr. Bush administrations
See our review for fuller assessment.
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The complete review's Review:
Lawless World focusses on the role of international law in the contemporary world.
As Philippe Sands shows, the reach and use of international law has expanded with great speed over the past decades -- but it has, over the last few years, also hit a major road-block, in the form of the administration of American president George jr. Bush which has been trying to unilaterally change many of the rules (at least as they pertain to and affect the United States) as well as the generally accepted approach to international law.
A head of state is treated as the incarnation of the state itself -- "L'état c'est moi." This means that any restraint on the individual amounts to an interference with independence and sovereignty of the state itself. To arrest Pinochet was to impugn the honor and sovereignty of Chile itself.This expanded reach outraged many government officials, who obviously don't like the idea that they could be held responsible for actions taken while in office. Nevertheless, personal responsibility and accountability have been widely greeted, and even countries opposed to universal application of the principle (notably the US) have supported international tribunals and the like in bringing to justice (or at least charging) the most egregious cases of misrule (involving war crimes and the like, such as in the former Yugoslavia).
The International Criminal Court, set up under the Rome Statute of 1998 (extracts included in an appendix to the book) to handle cases of genocide, war crimes, and crimes against humanity is the first major example Sands cites of the Americans going their own way. The jr. Bush administration has, infamously, vociferously opposed the ICC, one of many instances where the petulant superpower insists that rules good enough for everybody else shouldn't apply to it. American concerns -- that the court will be used against American nationals for political reasons -- are oft repeated but, as Sands points out, unfounded. As he notes about American government opposition to the ICC:
some of their statements have been so far off the mark that I wonder sometimes if they are talking about the same statute.(President Bush jr. -- who, unlike many American politicians, has no training in the law -- has repeatedly demonstrated that he has no concept of (and little interest in) the letter of the law, so his misunderstandings come as no surprise; unfortunately, he does not appear to have legal advisers willing to correct his go-by-the-gut pronouncements (and, instead, twist things around beyond what most lawyers would deem reasonable in an effort to provide support for them).)
Lawless World does, then, become more and more about America and the Making and Breaking of Global Rules (as the subtitle has it), with an increasing focus on the actions taken as a result of the terrorist attacks in New York and Washington, D.C. in September, 2001. Sands makes the easy case for the illegality of the detention of foreign nationals (the so-called 'unlawful combatants') in Guantánamo and elsewhere in the bizarre (il)legal limbo that denied them any and all rights, easily dismissing the 'legal' arguments put forth by the Bush jr. administration justifying them. While opposition to the ICC remained more theoretical -- concerns about what might happen in the future -- Guantánamo was an active abandonment of principles America had long agreed to, a violation that most lawyers considered unthinkable and whose consequences -- unless rejected by the US in the near future -- could be terrible. (Even those who believe the holding of these particular individuals in this manner was justified (a dubious proposition, given how many of them were released without any charges being filed against them) must realise what a terrible precedent it sets for future American administrations -- not to mention for other states, who can now argue that if the US is entitled to act against foreign nationals in this manner, so are they.)
Sands also argues that the Anglo-American invasion of Iraq itself was illegal, going step by step through what led to the war in showing that the final step clearly violated international law. (Here as elsewhere Sands provides considerable detail but supporters of the war will argue that he fails to consider certain arguments -- but then no matter how closely argued a case one presents, there will also be those who deny the obvious; suffice it to say, Sands' arguments are compelling and convincing.)
Sands also tackles the human rights abuses suffered by detainees held by the United States in Iraq, Guantánamo, and elsewhere -- and specifically, the administration's policies and pronouncements on the treatment of detainees. It's outrageous stuff -- not just regarding what has been done (and, in some cases, continues to be done) to detainees, but simply regarding the interpretation and explanation of the law. As he says about the official statements and memoranda put forth by the administration:
In some cases it was plain wrong. U.S. assistant attorney general Jay Bybee's memorandum of Aigust 1, 2002, should be compulsory reading for every student of international law. It makes for mildly entertaining reading, until you pause to reflect that this atrocious legal advice could provide legal cover for actions which may have contributed to the mistreatment of large numbers of people, and perhaps even deaths in custody.Indeed, one of the remarkable points hammered home in the book is how both the administrations of the jr. Bush and of Tony Blair ignored widespread legal consensus and managed to put forth legal opinions of the most dubious quality (which happened to support the actions they wished to undertake). The jr. Bush administration ran roughshod over those who counseled adherence to international norms (including Colin Powell's plea to adhere to the Geneva Convention) and instead pretty much made up the rules along the way -- allowing for short-term success (of sorts), but, as Sands argues (and as surely is obvious), to the long-term detriment of the United States (and the world at large).
Sands also tackles the Kyoto Protocol (and international law on the environment generally), again suggesting how the needlessly antagonistic approach taken by the jr. Bush administration has not served them well (while playing into the hands of, in this case, Russia, for example). His discussion is again a useful introduction and overview of this particular subject, so often misrepresented in the United States.
Of particular interest is Sands' discussion of international trade law, which is the one area of international law that America has most consistently approved of and been involved in. As he notes, international trade law, and specifically the freeing of restrictions on trade and investment, have, until now, been a boon for the US. However, in recent years other nations, including developing nations, have been able to use international agreements such as those governed by the World Trade Organization against American restraints of trade. The EU and Brazil have already won major challenges to American restraints, and more are sure to come. The WTO and NAFTA, among others, impose obligations that the US likely will find onerous, and it remains to be seen how much principle (free trade) counts for after all. (The jr. Bush administration record suggests principle counts for very, very little in the US nowadays.)
Sands' discussions of environmental and trade law also point out some of the negative aspects of the suddenly increased sweep and scope of international law, including that many of the rules are not democratically decided on (i.e. citizens have no idea what their governments have agreed to) and that they can affect matters that citizens (and nations) might prefer -- at least when it applies to them -- to be purely sovereign domestic matters (as when international trade laws are in conflict with domestic labour or environmental regulations). As Sands points out, just because something is 'international law' does not mean it is good law, and unintended consequences do crop up -- but, as with all bad law, international laws too can be challenged and changed.
The broad American approach to international law under the jr. Bush administration is a combination buffet approach (pick and choose a few that suit it) and us-and-them interpretation (one set of rules for the US, another for everybody else). It is untenable and dangerous. 'International law' is no universal panacea, but the rule of law (and respect for and adherence to it) benefits all; America's go it alone attitude undermines that. Most depressingly, the American approach is so terribly misguided: opposition to to many international agreements is a knee-jerk reaction, rather than a well-considered position. Many of the public statements against many international agreements (including Kyoto, the ICC, and the recent UNESCO agreement) completely misconstrue their implications and the obligations they impose, and America's hostile attitude often has kept it from contributing to shaping these agreements (when, presumably, they could work to remove what they find objectionable).
As Sands suggests, the US -- by far the most powerful nation in the world -- seems surprisingly unsure about its role in the world, and how it should participate in the international community. Unilaterally imposing its will obviously only gets it so far, but it is reluctant to -- as it sees it -- cede any power (as international obligations might force it to). Nevertheless, the US has embraced a great deal of international law, and actively led in its implementation in many areas, even under the jr. Bush administration. In a chapter added to the American edition of Lawless World, Sands even detects a possible greater change in direction in the second jr. Bush administration, though it must be said that it does not appear to have been realised yet.
In dealing directly with current events, especially surrounding the Anglo-American invasion of Iraq, Sands also discusses the influence of politics on legal decision-making, and the book is of particular interest in tracing the inexplicable (and often apparently reluctant) but essentially unwavering support of the Blair administration for the actions and words of the jr. Bush administration. As Sands notes, Blair -- a trained lawyer -- really should know better, and while the motives of the jr. Bush and his cronies are obvious, those of Blair are less so, as his wholehearted support offered almost no tangible benefits to him and his nation -- and surely costs him many nights of lost sleep. (Personal allegiance is, however, not to be underestimated: former Secretary of State Colin Powell compromised himself (and any morals he might have had) again and again, choosing to serve a president he disagreed with rather than fulfilling his obligations to the American (and Iraqi) people (not to mention to all the abused detainees).)
Lawless World is a good overview of international law, covering cases from all facets of the far reach of this field, and showing both the weaknesses and strengths of it. It is also a useful quick overview of all the places the United States has gone wrong in the international arena under the jr. Bush administration (and the few where it has gone right, generally holdovers from previous administrations). Each case under discussion deserves more space, but as a summary-work, Lawless World can certainly be recommended.
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Philippe Sands was born in 1960. He is a practising barrister and teaches at University College, London.
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