By Alexandra Alexandridou, Analyst KEDISA
There are various reasons why nations comply or not with international law: reasons of coercion or national interest; the political identity that a country wants to project together with a belief in the legitimacy of the laws; communitarian benefit; and lastly reasons of legal process which lead to the internalization of certain behavioral norms, which are in turn followed voluntarily. There are two types of legal process, the international one and the transnational one. International legal process works horizontally in a state-to-state relation with the ultimate goal of persuading the states to obey international law. Transnational legal process, on the other hand, describes a vertical relation between state and non-state actors involved in international fora, with the deeper goal of not only international obedience to the laws, but also their internalization into the countries’ domestic law. Thus, participation in transnational legal process leads to norm-internalization, which leads to obedience and subsequent compliance with the norms, with the result of obeying them internationally.
Transnational legal process, first of all, presupposes interaction between the actors involved in appropriate fora, such as international courts, interpretation of existing laws and of any relevant past legal cases by lawyers who possess the knowledge to correctly do so, and the consequent internalization of the laws and compliance on the part of the states. Transnational legal process offers both a theory of how domestic compliance transforms into international obedience and the practical tools of how to achieve that. An illustration of how this process works in practice is the case of countries seeking the contribution of an international court or another country’s domestic legal opinion in order to deal with a national legal case. For example, the United States has regularly consulted the opinions of international and European courts regarding cases of affirmative action or death penalty. By examining how other countries deal with legal problems, different countries’ legal mentalities gradually converge and compliance with international law becomes more probable. There are, however, countries that persistently deviate from the above-mentioned process.
In the case of North Korea, the country has been characterized by suffering under a cruel dictatorship, international isolation and by possessing nuclear weapons. The international community, under the initiative of the United States, engaged North Korea into a multilateral diplomatic framework early on, since the end of the last century, in order to detain its nuclear proliferation. The concept was that North Korea recognized the economic interests and the advancement opportunities presented to it through international aid and developed a law-abiding political identity internalizing the nuclear restraint. The plan based on transnational legal process was actually working for a decade, until the Bush administration decided to abandon it in 2001 and use coercive methods instead. The president of North Korea, sensing an imminent danger of invasion, started accumulating nuclear weapons again, until 2003 when the American administration abandoned coercion and went back to transnational legal process again. The international community has been going back and forth in its treatment of North Korea since then, with the result that the latter felt even more confident to proceed with its nuclear program.
In the case of Iraq, the international community was using coercive methods and international inspections throughout the 90s in order to persuade Iraq to abide by international laws, but with the reverse outcomes. The Bush administration firstly resorted to diplomatic means in order to admonish Iraq, but it soon decided to maximize coercion and invade Iraq, since its goal was not only Iraq’s disarmament, but also its regime change. What the Bush administration failed to recognize is that by pursuing the legal process it had adopted at first, it could have still achieved the regime change, avoiding the attack and the violation of international law on its part. It would have spared lots of money and human lives and it would have abided by human rights and maintained legality without creating a bad reputation. Moreover, not only would disarmament have been achieved, but the Iraqi regime would have also stood trial for its deeds, something that could not be accomplished given the process followed by the US.
Apart from violating international law in the case of Iraq, the US has repeatedly committed various other violations since 9/11. First of all, it has not ratified the International Criminal Court Treaty referring to the rights of war, it has also violated the Geneva Conventions given its operations in Abu Graib and Guantanamo and the treatment of US citizens as enemy combatants and lastly it has not yet abolished the death penalty. Under the “Bush doctrine” the US prioritized the national self-interest over international legality and the protection of national security at all costs, even by violating international laws and invading other countries. Above all, it promoted unilateral action with complete disregard of the international community, and the use of coercion and enforcement in order to manage other countries’ affairs according to its interests. These tactics on the part of the US have created double standards insofar as the US intervenes when others violate international law, but it itself is not accountable to anyone when it does so. As a result, the efficacy of its soft power has diminished, as has its ability to motivate and persuade the international community, given the feelings of mistrust it has created. The US stands in many cases as the biggest outlaw in the international environment, since it is the first one to violate the laws it once took the lead to create and promote.
There is only one solution in order to go back to international legality and this is the return to the application of transnational legal processes. This can be achieved, in the case of North Korea, by the promotion and subsequent internalization of the norm of disarmament and in the case of Iraq, by a constitutional reform aiming at the internalization of respect for human rights. As far as the US is concerned, there are various social, political and legal means to achieve the internalization of the rules on all those levels. Firstly, the de facto return to the International Criminal Court, by ratifying the Rome Statute, by supporting the jurisdiction of the court and by taking into account its opinions. The return to the Geneva Conventions is also primordial, as is the definite repeal of the death penalty. Ιf these actions are indeed implemented, the faith in international legality and justice, which has been shaken given the policies adopted after 9/11, will be restored and through transnational legal processes the states will ultimately comply with international law voluntarily and naturally.