A central and recurring theme of this blog-site has been the question of global governance. In particular, the argument has tended always to lead back to the requirement for some sort of central, international legislative body (Blogs No. 131 on Naomi Klein’s ‘LEAP’ programme and No.132 on SIMPOL, being the latest in the series to deal with this aspect of the problem.)
In this blog, I set out the ideas of James Ranney, who argues that the hugely difficult task of erecting a central legislative body can be circumvented and that the current progress being made in the development of International Law could, by itself (and with tweaking) achieve the major objective of avoiding war.
Last month, my Blog No. 137, started with a brief introduction to his new book ‘World Peace Through Law’ https://khakispecs.com/?p=3521 In it he argues that the development of International Law, now being fed the steroids of globalisation, is developing so fast that it could be utilised to remove the Damaclean sword of modern warfare that dangles over our societies. The second paragraph of that blog reads:
In Ranney’s view, progress is such that the point could soon be reached where, given certain preconditions; the rule of right could replace that of might and wars no longer be viewed as a legitimate pursuit of political ends by other means. The attractive argument presented is that mechanisms can be found to replace war with law, but without the need of first having to cross the seemingly insurmountable obstacle of establishing some form of federal global government.
Ranney reinforces his arguments with copious references and notes, all of which offer far greater support than anything I could hope to replicate in this commentary. He starts with a chapter on the ‘accidental’ survival of our civilisation, after its seemingly miraculous avoidance of an inadvertent nuclear exchange between the two main protagonists during the Cold War.
Given the massive nuclear rearmament programmes currently instigated by the USA, which is having to be followed by Russia and China, it would seem only a matter of time before a total disaster occurs. Put another way: since the Manhattan Project, when humanity stepped off the roof of the Empire State, it has survived its exhilarating journey all the way down, past multiple floors. However, ‘so far so good,’ doesn’t lessen its chances of ultimately experiencing a terminal encounter with the tarmac!
Ranney’s book is written very much with the tarmac in mind. A way has to be found for nuclear weapons to be banned and binned. The only way this can occur is if nations feel so secure in the international rule of law that they have no fear of another nation attempting a pre-emptive strike, or threatening one, in order to extort some economic or strategic advantage. The chicken and egg problem Ranney tussles with, is whether or not nuclear disarmament can take place prior to the rule of fully implementable international law being already guaranteed and whether or not such a guarantee could ever be given, while some nations still possessed nuclear weapons, or any other form of overwhelming military superiority.
Usually, inside successful jurisdictions, domestic conflicts are settled through the rule of law. Between sovereign nations however, conflicts can still legitimately be resolved through either law or war. Currently, international law lacks the enforcement mechanisms available within states, thus the recourse to war as a means of dispute resolution between nations is an option that cannot be ruled out. Dispute settlement machinery needs to be backed by effective enforcement mechanisms.
Ranney argues that such an effective enforcement mechanism can be achieved without there being the need for a global legislature, but will be impossible without prior nuclear disarmament. He makes the point that the idea that law should make war unnecessary is not a new idea. King George of Bohemia was proposing something similar in the fifteenth century and Jeremy Bentham took the idea of “World peace through enforceable law” much further in the eighteenth. Instead of a world government, Bentham was calling for ‘an institution of international dispute resolution.’
The first half of Ranney’s book is devoted to demonstrating that the idea the author is projecting is by no means original and has significant antecedents to support it. However, in terms of the growing extent of the threat and the growing possibilities to avert it, through technological development and globalisation of international cooperation, the idea is overdue for serious re-consideration.
Roosevelt, Taft, Eisenhower and J.F. Kennedy are all quoted as VIP supporters of the concept of a radical reduction in national armaments and the development of formal international dispute settlement procedures. In 1961 the McCoy-Zorin negotiations between the USA and the USSR resulted in a ‘“Joint statement of agreed principles for disarmament negotiations.…arrangements for peace including a United Nations peace force that would have a monopoly on all internationally usable military force.”
At that point, perhaps, our world was on the point of pulling back from the brink. Sadly, on that occasion, Khrushchev, having decided he couldn’t expose the Soviet Union to such a leap of faith in regards to an international body, backed out of the agreement. In 1986, when Gorbachev attempted to resuscitate the deal, a triumphant USA, confident that it was on the verge of ‘winning’ the Cold War, was no longer interested.
The second half of the book deals with Ranney’s attempt to revisit the problem. He traces the development of international law and believes it to be rapidly developing along the same lines as did English common law. This is through the finding of multiple, common-sense, pragmatic solutions to problems posed by international interactions, resulting in an ever augmenting body of precedent and public expectations. Through globalisation, this process is over-spilling into multiple legal disciplines not previously considered as relevant to international law: for example, in many cases, environmental, human rights, criminal and family law are now no longer matters for purely national legislation or jurisdiction.
Ranney quotes opponents of his thesis (among who are many of the influential neo-con faction of the US elite) as rejecting the idea of there ever being a truly effective international rule of law without there being an effective world government. Clearly, this is something that, to their minds, would be so far in advance of current, nation-centric thinking, as to be inconceivable.
Ranney’s central contention is “that there is an in-between position – short of world government yet more than “global legalism” – that can carry us past the nuclear age to a new and more stable form of global security. It is called world peace through law.”… He cites as examples of the trajectory on which global relations seem now set, the WTO, which has the authority to impose sanctions on an offending nation without any requirement for international consensus, or likewise with the Law of the Sea Convention (UNCLOS) whose jurisdiction covers 70% of the planet’s surface area, which has compulsorily dispute settlement provisions that are not subject to any vetoes held by permanent members of the UN Security Council.
And all the while, alongside the major treaties, in multiple domestic courtrooms, day-to-day disputes with international dimensions are being argued and precedents set, in a process “which is gradually turning weak “international law into enforceable and effective “world law.” The author points out that if an American administration wishes to oppose the process it will simply be isolated and left behind.
However, before the vision of WPTL (‘a world subject to the global rule of law’) can be achieved, there are necessary institutional developments in the fields of both dispute resolution and effective enforcement that need to occur.
Ranney proposes that a World Conciliation Board and World Equity Tribunal should be created by international treaty. All international disputes would have to go before this tribunal and be subjected to :
• Compulsory negotiation.
• Compulsory mediation.
• Compulsory Arbitration.
• Compulsory adjudication.
However, the author does not believe the last two functions, essential for the establishment of WPTL, would be feasible without prior nuclear disarmament. A nation that possessed nuclear weapons would not necessarily feel obliged to submit to decisions made by international arbitrators, as no international body would have the enforcement capability required to overcome the level of resistance it could threaten.
The author goes on to devote a whole chapter to arguing that nuclear weapons must go because their possession threatens human existence and therefore defies logic. He supports his arguments with the fact that they are supported not only by those he terms ‘idealists’ such as Reagan and Gorbachev, but also by the advocates of Realpolitik such as George Kennan, Shultz, Nunn, Perry and Kissinger all of whom started off as advocates of the MAD system of nuclear deterrence and all of whom, ended up saying that it was in humanity’s best and urgent interest to rid itself of these weapons. https://www.prnewswire.com/news-releases/shultz-perry-kissinger-nunn-call-for-steps-to-reduce-nuclear-dangers-195535361.html
At this point I found myself agreeing entirely with the author that WPTL was a ‘need,’ if humanity is to survive, but questioning whether, or not, prior nuclear disarmament was anything more pressing than a ‘want.’ If the nations accustomed themselves to a world that was ruled by law rather than war, in due course, internal budgetary and public opinion pressures would bring about the atrophy of nuclear forces that no longer served any function.
If, well before the advent of the Atomic bomb, the argument could be used by such as Bentham and Taft that world public opinion would prevent nations breaking an international agreement to replace war with law, how much stronger and effective would be that opprobrium in today’s interconnected and internet-connected world, when faced with a threat by a rogue state to use nuclear weapons?
As a caveat, I offer the thought that in today’s pre-WPTL world, the decision to develop nuclear weapons by the current nuclear powers was, in each case, a decision to threaten other nations, potential aggressors or otherwise, with their use. However, it today’s world, when major powers, specifically the USA and Israel, threaten lesser powers with nuclear ‘fire and fury’ unless they conform to instructions, there is no effective manifestation of global public outrage sufficient to change the bully power’s behaviour. The reality seems to be that the leaders of the major nuclear powers also have developed the capacity to manipulate significant sections of public opinion into either apathy or into favour of such reckless and ‘immoral’ conduct.
One cannot help feeling that the author’s World Conciliation Board and World Equity Tribunal, should have a fifth function added to its rights and duties:, the right to “Compulsory access for the Tribunal’s arguments to all nations’ media streams” and the public information duty and function of “Naming and shaming.”
Ranney’s penultimate chapter deals at length with the necessary function of enforcement. Any law which is not, or cannot be, enforced soon falls in to disrespect, while the populations adversely affected by the failure, fall into despair. This task is to be entrusted to a United Nations Peace Force (UNPF) with three key functions:
• To act as the enforcement arm of international dispute resolution system
• To deter international and perhaps national violence
• To make redundant most defence expenditure at the national level.
While the permanent Security Council members retain the veto, no lesser nation could retain confidence in the equitable deployment of such a force. Franklin Roosevelt is quoted as writing as long ago as 1923, “Common sense cannot defend a procedure by which one or two recalcitrant nations could block the will of the great majority.” The SC veto is a mechanism designed specifically to allow recalcitrant nations ‘to block the will of the great majority.’
Other than the continued existence of the veto, there are other questions to be resolved.
· How can command and control be exercised so as to overcome the national loyalties of the UNPF’s members and potential conflicts of interest?
· Would a global ideological divide, such as that of the Cold War, make a joint force impossible?
· Without prior total nuclear disarmament nuclear and significant national, conventional disarmament, would such a force have to be so ridiculously powerful that it could never be funded?
Ranney argues that once the dispute resolution machinery is established, only minimum force will be required to enforce it. He quotes William Ladd “Where one man obeys laws for fear of the sword of the magistrate, an hundred obey them through fear of public opinion.” It is true that the effect of the ‘moral sanction’ of a globalised public opinion is growing apace, but there remain egregious black holes of purely selfish national enthusiasm.
To buttress his optimism, Ranney quotes the example of the European Union, which has courts making rulings on its internal disputes and which are upheld by the member states and yet, which lacks any form of armed enforcement agency. (However, other sanctions may apply!)
In his conclusion Ranney goes back to Jeremy Bentham’s three-legged stool …(1) reductions in offensive weaponry, in particular the complete abolition of nuclear weapons; (2) an international court with compulsory jurisdiction, preceded by compulsory negotiation, mediation and arbitration; (3) effective enforcement mechanisms, ranging from the force of world opinion to various other non-military sanctions to an international peace force.
All the above were advanced before at the Hague Conventions preceding WWI, but there rejected. Now times have changed and the ideas are ripe for urgent reconsideration.
My next blog will deal with recent developments in the enforcement of environmental law, which have the potential to make a significant contribution towards the development of James Ranney’s vision.
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