International Law, Law Schools

4 Well-Intentioned International Law Ideas That Are Doomed to Fail

The United Nations

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International law enforcement is an enticing idea.

There are real villains and real victims. But sometimes an international legal solution is worse than no solution. This is true of a number of popular proposals on the table today for supposedly bolstering our international legal order. Here’s what proponents of those ideas get wrong about international law:

REGULATING ABUSIVE MONETARY AND FISCAL POLICIES

It’s true: There’s no clear way to police governments manipulating their currencies or lying about the state of their finances. No laws or institutions (not even the WTO) offer a remedy — and the market rarely self-corrects. So it makes sense that many want to put global monetary policy under greater international oversight. Such proposals come from all sides: Americans complain about China’s undervalued currency, the Germans about the European Central Bank’s pledge to help bail out Greece. 

But: International adjudication wouldn’t help. Here’s why: The European Central Bank and the IMF send signals to markets. Their intervention is designed to reassure investors, so that those investors will lend privately. International adjudication will make investors call into question the validity of these sensitive signals, exacerbating bankers’ and investors’ financial unease. 

What courts do well is clarify and create certainty. They can answer questions like “Who owns a patent?” or “Who has legal rights over land that investors want to use?” What they can’t do is build faith in struggling markets. Let’s leave financial policy-making and signal-sending to economic and political institutions that can actually respond to market booms and busts. 

A WORLD HUMAN RIGHTS COURT

It’s true: There’s no international body adjudicating human rights violations in Asia and the Middle East. Nor is there one to remedy the weaknesses of Africa’s human rights system. Frustrated human rights advocates want a global legal solution.

But: Regional approaches to judicial oversight are a much better solution than a single supranational rights court. There’s much disagreement about which human rights should be protected. Traditional societies want to protect local practices — which may not cohere with the growing demands of women’s and children’s rights movements. Some nations in Africa or Latin America believe they should be allowed to prioritize their own development, making up for years of colonial injustices, over due process or property rights; not to mention the impossible task the court would hold of reconciling Islamic ideas of justice with Western ones. 

Of course, relying on regional solutions means important human rights values may go unaddressed. Case in point: gay rights. Uganda and Nigeria have criminalized homosexual behavior, and Russia has made it illegal to advocate for homosexual rights. Russian laws are subject to European review, but it’s possible that African human rights bodies will cave to homophobia. Such a compromise may be a necessary evil to avoid further political backlash.

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