December 09, 2002


In this country and throughout Europe, antiwar organizations cite international law in urging President Bush not to overthrow Saddam Hussein. The National Council of Churches and other religious groups warn Bush that military action would "heighten concern in other countries about American respect for their integrity as nations, as well as for international law." The Campaign for Nuclear Disarmament in Britain threatens to haul Prime Minister Tony Blair into court and backs up its threat with long briefs and many footnotes.

All perfectly understandable; no one wants a world in which powerful countries feel free to go about smashing into weaker ones. The groups' reading of the law -- that the United States and its allies would have no right to take action without another Security Council resolution -- may well be correct.

And yet, given that they have taken on Saddam Hussein as their client, you have to wonder whether, if their reading of the law is right, there isn't something peculiar, something out of whack, about international law itself. Yes, national borders should be respected. But why should a gangster who has maintained power only by violating every norm of morality and law -- including international law -- be permitted the sanctuary of those borders? Why should his regime be entitled to the same protection as a government that represents its people?

This is an excellent question. I think that this affair has indicated that international law -- at least the structure of wishful thinking that has been erected under that name since World War II -- is broken, and in need of serious overhaul. It's funny how people who generally support the abandonment of "outdated" principles of constitutional law and federalism, though, seem to think that Article Two, Section Four of the U.N. Charter -- or even a particular interpretation thereof -- is sacrosanct.