The Law of Nations

September 13, 1990|By TRB

WASHINGTON — ''America and the world must support the rule of law. And we will.'' -- President Bush

Washington. KUWAIT, embarrassingly, was not a democracy or a ''free'' country, as the term is commonly understood, before August 2, and still won't be one if the emir is restored. So to justify American actions in the Persian Gulf, President Bush cannot call upon the usual rhetoric about democracy and freedom. Instead, the reigning concept is ''order.'' Saddam Hussein, he says, has assaulted ''the very essence of international order and civilized ideals.''

The notion of ''order'' as a supreme value in the affairs of nations is not undisputed. It is at the heart of international law, an area of thought the United States government has not had much time for during the past decade. ''Order,'' and the related concept of ''sovereignty,'' assert that the status quo has its own legitimate claims, simply because it is the status quo.

The Reagan Doctrine was a specific rejection of international law as the illogical elevation of sovereignty over more important values such as democracy and freedom. Why should the forces for good sign a charter of self-abnegation? Legal rules are fine for fishing treaties, but not for important matters. In Grenada, in Nicaragua, as recently as nine months ago in Panama, the Reagan and Bush administrations gave scant attention to the TC claims of sovereignty, or of various treaties we have signed promising to eschew force against fellow signatories.

Even under international law, sovereignty doesn't trump everything. State Department lawyers have been able to cobble together some legal rationalization for each American adventure over the decade. But the efforts became ever more half-hearted. By the end, the contradiction could no longer be contained in any gray area.

Our assertion of America's right to promote American values was incompatible with even the least ambitious claims of international law to limit the use of force. Conservative thinkers circled in for the kill. As Daniel Patrick Moynihan overstates in his new book, ''On the Law of Nations'': ''In the annals of forgetfulness there is nothing quite to compare with the fading from the American mind of the idea of the law of nations.''

Yet suddenly, in the Gulf crisis, Mr. Bush cannot cite international law often enough. The occupation of Kuwait is ''illegal under international law.'' Iraq is an outrageous violator of ''international law.'' ''And so my message [to Iraq] is: ... Adhere to international law.'' International law -- it's not just for wussies, anymore.

International law serves two purposes for the U.S. in this crisis. First, with democracy unavailable, it is a high-minded value we can legitimately claim to be protecting, thereby avoiding undue emphasis on oil and other narrowly strategic concerns. Oh sure, a police state like Iraq is worse than a feudal kingdom like Kuwait. But you cannot ask Americans to die for comparative awfulocracy.

Second, the principles and procedures of international law have been essential to gaining the world's support -- Mr. Bush's greatest triumph, everyone agrees.

Robert Bork has written, ''The major difficulty with international law is that it converts what are essentially problems of international morality ... into arguments about law that are largely drained of morality.'' In fact, this is an advantage. Even without an automatic enforcement mechanism (international law's obvious defect), it is easier to get people to agree to apply a pre-existing set of rules than to agree ad hoc on the moral merits of a particular policy. And even if we disagree on the morality of a specific case, we still share a vested interest in the rule of law generally, which inclines us to follow the rules.

Also, as Senator Moynihan's book presciently notes, ''Allied and non-aligned nations ... can far more readily support (or at least accept) American policies if our conduct is seen to be based on law that binds us as well as them.''

Writing in Newsweek, George Will deplores Mr. Bush's rediscovery of international law. ''President Bush will regret this recourse if he decides his policy requires removal of Saddam Hussein.'' True: International law makes resort to war harder. But all of the president's hope to end this crisis short of war depends on other nations taking him seriously about international law.

Should he be taken seriously? Or is international law just a rhetorical convenience? Having sneered at it for a decade, then having found it necessary, will the U.S. abandon it once again when it ceases to be convenient? Even the rhetorical usefulness of international law depends on others believing that this time we really mean it.

Really meaning it means giving up our own freedom of action on occasion, and allowing our own case-by-case moral assessments to be constrained by rules that will sometimes strike us as wrong. It means respecting the sovereignty of governments we rightly don't like. It means allowing the judgment of other nations to stay our hand sometimes, even when we think that judgment is mistaken. Law that need not be obeyed if you disagree with it is not law. If we want meaningful international law to be available when we find it useful, we must respect it even when we don't.

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