Mulligans in The Golf Game of International Law

| May 2014
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A few years ago, attending a seminar at CCEIA, I heard one of the best “bumper-sticker” descriptions of the current system of international law and how it is enforced in the current global environment: it is a game of golf. The comparison, one which I use with my students at the Naval War College, is quite apropos. In a game of golf, the players are self-policing; the rules are known and published but there is no referee who stands with independent enforcement authority. If the players so agree among themselves, they may bend the rules or come up with particular interpretations or even throw rules out altogether. Depending on the power dynamic between the players (e.g. a wealthy investor with potential recipients; a boss playing with subordinates), the “weaker” players may be prepared to overlook infractions of the stronger even if the rules are enforced more stringently on them. The stronger player, in turn, may generally conform with the rules in order to keep the game running more smoothly–and the rules may become more important when two players enjoy similar endowments of power or influence (or, conversely, the stronger players may choose to ignore when a peer flouts the rules in return for similar consideration).

In the closing decade of the 20th century, the hope was that the world was moving beyond this understanding of international law as a golf game to something more binding; where the rules would be less subject to challenge. But, over the past several years, it seems that international law really is in the eye of the beholder–and that some states have less consistency in how they choose to apply the rules in governing their international behavior.

Kosovo, Libya, Syria, Georgia, Ukraine, Egypt, Bahrain … what we’ve seem from major powers, who are supposed to be the guarantors of an international rules-based system, is flip-flopping to bend or disregard rules in favor of a more ancient maxim for politics: support your friends, frustrate your enemies. So …

–a state’s territorial integrity is to be inviolate, until it is not

–borders should not be changed without the consent of the state involved, until its consent is not required

–a government has the right to put down insurrection against its authority, until it doesn’t

–a government elected in polls deemed to be free and fair should serve out its legitimate term in office, until it shouldn’t

–a government should not have the right to use force against peaceful protestors, until it should

–a sovereign state has the right to employ its armed forces as it sees fit on its own recognized territory, until it doesn’t

–a referendum of a region to secede from a state is illegitimate/legitimate, until it isn’t

–people who have exhausted their right to peacefully petition the government for redress of grievances have the right to turn to force in defense of their right to self-determination, until they don’t

–a government that comes to power through extra-legal/extra-constitutional means is legitimate, until it isn’t

–ethnic minorities who are majorities in particular territories of a given state don’t have a right to secede (although they have a right to substantial autonomy in their affairs), until they do

–A state which strongly supports and defends any of these precepts will do so, until it decides that its interests aren’t served (or that a close friend needs to violate these rules)

[These opinions are personal musings of the author and do not reflect any official position of the Naval War College or the U.S. government. They are personal reflections rather than analytic conclusions.]



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Category: Blog, International Law and Human Rights

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  1. N.Ethirveerasingam says:

    In 1960 as a Senior I took a course on intro to Intl Law at UCLA. The name of the prof is Ginzberg – visiting from Harvard. I need to check on that again. 20 odd students were given cases to study and present a brief and the Point of Law of the case. He called at random so all have to be ready. From the first day one student would say “in Intnl law, “Might is right.” Prof. G would argue against it. This happened 3 days a week. The same student. On the last day of the Semester, prof concluded that that student was right. He however appealed not to despair as some day it will not be the mighty that will be right. I guess that some day is centuries away.

    • JC says:

      This post is a nice addition to Ian Hurd’s contribution to the spring issue, where he argues that international law, “rather than being a universal institution that expresses the shared interests and goals of states” instead “provides political resources with which states and other actors legitimize and delegitimize contending policies.” Thus, Gvosdev’s list of either/ors fits into this definition, where states like Russia which want to pursue one set of policies in Syria but another in Ukraine will marshall the laws which best support those policies.