Malignant delusions

OVER AT OPINIO JURIS, an interesting online symposium on challenges to public international law.

One challenge, it seems to me, is the prevalence of double standards.

An odd objection indeed. Glenn, that is not a “challenge.” If the standards are not consistent, it is simply not a regime of law, is it? It is a fig leaf for something completely different and, inevitably, something far less benign.

Which is, probably unfortunately, what all “international law” ever was, and in all probability ever will be.

No Responses to “Malignant delusions”

  1. Dr. Ellen Says:

    Double standard? That’s not a bug, it’s a feature!

  2. Ron Coleman Says:


  3. article 5 Says:

    Can someone explain if there are actual double standards here?

    So far the rejoinder seems to be that Iran and Britain are not at war (neither side have declared the other an adverse party to an armed conflict), so the GC may not apply. But Art 4 states that POWs may also be:

    “[t]he persons belonging to one of the categories enumerated in the present Article, *who have been received by neutral or non-belligerent Powers* on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give . . . “.

    In other words, members of the armed forces of a party (the Brits) to the conflict (Iraq War) [per Art 4(1)] who have been “received” by a purportedly neutral or non-belligerent power (Iran) would qualify as POWs as well.

    So their status may well turn on what “received” is supposed to mean. Would it include their alleged capture in Iranian waters?

    The Instalanche should send some international law experts this way. Answers if you please.

  4. Ron Coleman Says:

    Hunh. Instalanche surfing. There’s nothing that can’t be arbitraged these days, I guess.

  5. article 5 Says:

    Additionally, Iran (I think) is not a signatory to Protocol 1, so charging that the Iranians are contravening international law [Art 46(2) of Protocol 1] by stringing the uniformed Brits up on spying charges may be spurious as well. Clearly they can’t be derogating from treaty obligations if they are not party to it. (It may be that there is customary international law on this point quite apart from treaty mandated obligation, but I don’t know enough to tell one way or another.)

  6. Ron Coleman Says:

    But you know, Article 5, you remind of an important point. Most international law — and I am not the expert you seek, that’s clear — is, as I suggested, for show. But probably the most effective international legal regimes have been the Geneva Convention, if only sporadically (they did keep a lot of Allied prisoners alive during World War II but didn’t help much in Vietnam) and what you call the customary international law that applies to what happens on the high seas. They do set norms, but like most putative international law it seems to me they do ultimately founder, if you will, on the lack of the kind of enforcement that legal systems usually depend on for their legitimacy.

  7. article 5 Says:

    I suppose enforcement is applied only ineffectually (like a very ineffective judicial system with a corrupt police force) and ultimately for grave breaches the United States is the only guarantor of compliance by dint of force. Be that as it may, I don’t we should overlook the suasive force that such a regime may have on the conduct of international actors. It constrains the actions of states to a degree – however minimal – and it also forces states to couch their justificatory rubric in the language of international law. This too, puts some non-trivial restrictions on the way that states may behave – that is, at the very least, not wontonly.

    Short of force and punitive measures like sanctions, a lot of the pressure for compliance may be self-enforcing to the extent that states care about their reputations or their bargaining and treaty-making heft.

    In short, you’re right that under some theories of law, international law isn’t really law since there’s no Hobbesian or Austinian sovereign from which the law or its enfocement emanates. But it’s still behaviour-shaping in a way . . . however decrepit, ineffectual, and hollow the regime may be to most observers. Thanks for letting my questions piggy back on your bandwidth btw!

  8. Moneyrunner Says:

    Forgive me for bringing in a touch of reality, but we were speaking of double standards. They do not refer to the law, they refer to people.

    The double standard is the issue of posters like “article 5” and others in the commentariat who pontificate on things like the Geneva Conventions. So far in this short thread “article 5” has commented three times. In two of those comments he attempts to explain why the Geneva Conventions don’t apply to the Iranians and their prisoners. In the third one he explains that the Geneva Conventions are a good thing because they – at a minimum – provide a standard by which nations can be judged. But remember in the first two he argues that the Iranians should not be judged against those standards.

    I appreciate this example of double standards since without any doubt I am 100% sure that “article 5” has not posted reasons why the Geneva conventions do not apply to the terrorists captured by the US and its allies.

  9. Ron Coleman Says:

    You are forgiven.

  10. article 5 Says:

    Moneyrunner, if you note both comments, I actually explained how the GC may apply to the Iranians and their prisoners. I sought clarification on how this may be the case by inviting comments on the state of GC language re: Article 4, and also whether customary international law might bound Iran to the issues raised by Protocol 1 even though Iran is (I think) not a signatory of that Protocol.

    In my third comment, I explain how _international law_ may have some utility for nations despite being terribly inadequate and deficient in several respects.

    I did not “explain that the Geneva Conventions are a good thing” (they are sometimes – note the aforegiven example on WWII – but like much of international law on the conduct of armed conflict, are deficient in that they do not address the challenges of asymmetry on the battlefield). Please note the distinction between the Conventions and international law at large.

    As for . . . “I appreciate this example of double standards since without any doubt I am 100% sure that “article 5” has not posted reasons why the Geneva conventions do not apply to the terrorists captured by the US and its allies.”

    . . . Your certitude is quite unfortunate then, for I have indeed argued that the Conventions do not apply to non-state actors like al Qaeda and sundry terrorists. I appreciate that you might mistake a rigorous analysis of the law that charitably interpretes arguments from “the other side” as a somewhat partisan exercise, but you’re nonetheless mistaken.

    Alas no further comments on point of law seem to be coming despite the Instalanche!!

Attorney Ronald D. Coleman