Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
By: Caleb P. Scott
The implications of choosing when and where one gets to follow rules and not obey the rules is a staple conversation when raising a family when children test what they can and cannot get away with. The embracing of the “rules for me, not for thee” fallacy is lackadaisical given a well recorded and established history. “International Law” in contemporary times is a vast field divided into a mixture of public and private interests and rooted in millennia of human history. For instance, some of the principles of today’s international law can be traced to examples of Grotius and Gentili’s treatises on the law of war in the late sixteenth and early seventeenth century or the Treaty of Westphalia in 1648 redefining the ideas of statehood and sovereignty; however, records of diplomatic agreements exist as far back past Rome into Ancient Greece and early Mesopotamia. With traces of international laws and agreements going back even before the Bronze Age, the field is ancient and yet one of the most important parts of mankind’s success. Over the ages, international law has grown from more customary dealings into a vast network of conventions, international custom, “general principles of law recognized by civilized nations”, judicial decisions of individual nations highest courts, and teachings of “highly-qualified publicists” as codified in the International Court of Justice (“ICJ”) definitions found in the ICJ Statute Article 38.
The concept of honoring international agreements is nothing new, trust and reputability help govern the wide field of international law with treaties such as the Anglo-Portuguese Treaty of 1373 still in effect to this day. As it became more evident isolationism in the United States and other countries was (and is) an ineffective strategy, the world started experimenting with supra-national organizations like the League of Nations and the Permanent Court of International Justice in the 1920s. Later, the United Nations and the ICJ were formed to carry on the former’s work post-Second World War and established as venues of which to keep the balance among the world’s states by providing neutral ground, frameworks, and methods for recourse when international incidents would otherwise devolve into conflict. Founded in large part thanks to the actions of the former Allied Powers, including – the United States, the international system as we know it today began to take roots greater than the jus cogen and opinio juris norms and bi and tri-lateral treaties in favor of supranational unions of states working together to achieve more than they could otherwise alone.
Granted, while all forms of treaties have existed for thousands of years, the United Nations and other supranational organizations like the African Union or Association of Southeast Asian Nations (“ASEAN”) have provided fertile grounds for international cooperation to flourish in an age where humanity is evermore interconnected. With major world wars having been avoided for almost a century, albeit international conflicts still occur just not in the continent encompassing scale as we did in the early Twentieth Century, any doubt as to the system’s success in providing a stable framework from which to achieve peaceful outcomes should be thoroughly reconsidered in the light of the amount of successes in avoiding world-wide war and in diplomatically resolving differences before they escalate into conflict.
Therefore, with such a long-standing history and track record of success, the ramifications of choosing where and when you follow rules given long recorded history makes such actions negligent at best, but more often purposeful. The importance of following international law commitments comes at a time where a myriad of issues faces the contemporary world. It is imperative, now more than ever, to honor and be transparent with a state’s commitments and agreements as the waves of reactionaries play to the “rules for thee, not for me” fallacy calling into question more and more agreed upon commitments from Bolsonaro to Trump. All despite the reputation that international cooperation on agreements are a key to success. Unfortunately, we are once more facing a timeline where we must deal with the effects of reactionaries at home and abroad preying on and fostering doubt among friends, global warming increasing disasters and tensions, and resource scarcity casting its shadow across much of the Global South while reactionaries attempt to escape issues altogether under the guise of “fake-news.”
It definitely does not help when chief among those states attempting to determine when and where it gets to honor commitments is the world’s pre-eminent superpower, the United States. Despite the United States’ diplomatic faux pas and resurgence of reactionary fervor in opposition to international cooperation, in comparison to many other countries it has directly benefited from the system it helped establish. As at home, so abroad — challenging the legitimacy of the ICJ or withdrawing from agreements on political whims (such as the United States withdrawing from the Paris Accords or the United Kingdom leaving the European Union) can have far reaching effects on diplomatic interactions. The Tory government in the United Kingdom has caused a great deal of grief in its handlings of leaving the European Union as well as at home. Domestic affairs in the United Kingdom have suffered from sweeping disapproval of government actions to the looming financial crisis and general poor management at home and abroad. The implications of making quick obtuse decisions against standing benefit is no new reality. As surmised by the Honorable Learned Hand’s, “When I hear so much impatient and irritable complaint, so much readiness to replace what we have by guardians for us all, those supermen, evoked somewhere from the clouds, whom none have seen and none are ready to name, I lapse into a dream, as it were.”
While international relations and international law researchers note and commentate on the new history being made in the current international status quo, the effects of jumping into and out of decisions have already made waves. For instance, the Biden Administration struggling to work with Iran after the Trump Administration unilaterally abandoned the Iran Nuclear Treaty and is now facing litigation in Iran v. United States as well as escalating tensions between the two countries, which the original treaty had tried in part to mitigate. Unfortunately for the United States, these actions not just harmed America’s reputability in making and honoring treaties, but also caused distrust in American domestic affairs with even Republicans breaking ranks from their president’s decision and many worried about our legitimacy in agreement-making if one president can withdraw the United States from its obligations. It is not the first time though, albeit becoming more frequent. Take for example, in the ICJ case Nicaragua v. United States, whereby American was funding, providing resources, and training the Contras in Nicaragua to overthrow their government in contravention of various treaties by the United States while simultaneously decrying the jurisdiction of the ICJ which it helped to form. While challenging jurisdiction is a valid legal strategy, challenging the validity of a court’s existence is not. Furthermore, all of this occurred while President Reagan decried the Court’s actions challenging jurisdiction, merits, and using its veto power on the Security Council to stop imposition of the Court’s finding that America had chiefly violated Nicaragua’s territorial integrity, among other issues. Flaunting the idea of American-exceptionalism and touting the United States being the exemplary nation-state while concurrently trying to absolve itself of its obligations is a hard from of dramatic irony and dereliction of the United States’ responsibility on the world stage.
Acting with one’s own self-interest and harming an institution is hardly an international matter for the United States though; rather, it can often be found seeping into the international system from domestic actions. The Supreme Court of the United States, for worse, undermined its own institutional authority in Dobbs v. Jackson Women’s Health Organization, 597 U.S.  (2022) this past summer overturning Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), and such political decisions deciding when and where rules can be followed undermine institutions. Ironically, with so much history to glean from showing the importance of progressing the world forward and why honoring commitments to better the world makes sense, it is lost on those making abrupt history altering decisions.
The most egregious issue however is that many of the actions by state-actors such as the United States or United Kingdom is that they set up and immensely benefited from the international system they, and others, copiously admonish from political pulpits. Benefits such as domestic centers of the world’s finances like New York and London, housing the World Bank, establishing free-trade networks which have allowed quaternary and quintenary service industries to thrive where they otherwise could not. Furthermore, by helping draft many of the international frameworks the United States has directly benefited in use of force and military interventions, nuclear weapons prohibitions, laws of the sea, and in its ability to project power long from its shores both diplomatically, economically, and militarily. However, and not fortuitously, now that other states call upon the former to honor the engines of international law, they find themselves uphill against the states who created the laws avoiding accountability by leveraging their diplomatic and economic prowess. Much to the chagrin of the United States and other world powers who established the current regime of international law, have benefited from the status quo the current international law system has fostered, and have been effectively playing with a “home-field” advantage, choosing to not follow the system due to whatever political melodrama occurs at home is hardly a basis for a system of governance. Governing in such a manner at the international stage in a world that is not getting less interconnected and where states, even the United States, nonetheless need partners to accomplish their goals despite domestic political cognitive dissonance.
Capricious unattenuated selfish behavior by international actors in when and where actions may be followed serves only to undermine one of the core principles of all law: implied good faith and fair dealing. This principle is cornerstone to a legal system adjudicating and resolving disputes and is critical to successfully doing so both domestically and internationally. After all, a legal system’s capability of doing anything is based on people and states alike abiding by the laws agreed to or observed. Existing in the midst is a patriotic duty to want your nation to do better and permitting the United States to act when it feels most convenient is at best slothful and at worse and abandonment of our core principles of liberty and justice for all people. In the present world there is no room for actors embracing the faux pas and fallacy of “rules for me and not for thee,” humanity cannot afford such a pernicious approach to international law now, nor ever going forward.
ABOUT THE AUTHOR:
Caleb Scott is a second-year law student and member of the Arkansas Journal of Social Change and Public Policy at the Bowen School of Law. Additionally, Caleb competes on the Bowen Jessup International Moot Court Traveling Team, serves as president of the OutLaw Legal Society, serves as an S.B.A. Honor Justice for the Second-Year Law Students, and is a court observer for the Bowen Center for Racial Justice and Criminal Justice Reform.