North Korea and international law

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To the whole world’s consternation, North Korea sent a missile flying across Japan. Kim Jong Un, North Korea’s young, unpredictable and arrogant leader, has threatened to make of Guam a target for his dangerous games. And while threats have flown fast and thick and the rhetoric has been upped several notches with the likes of Trump threatening nothing less than a reprisal of apocalyptic proportions, it seems that not very much can be done to rein in the mischief of Kim Jong Un.

And that, too many, is the impertinence as well as the impotence of international law.  In fact, some go so far as to wonder whether international law is really law, given that enforcement mechanisms are close to nil.  And that, of course, is not true only of North Korea but even of the United States.  The American government has, on several occasions, blatantly transgressed international law.  The capture of Noriega immediately comes to mind, and its withdrawal from the jurisdiction of the International Court of Justice, just as the Court was all poised to pass upon Nicaragua’s complaint provide ready examples.  

In the first place, thinking of international law as some globalized form of domestic law is a terrible mistake.  It is law, but law of a different species.  It remains law insofar as it is normative of conduct and prescriptive of state behavior.  The very hypocrisy by which recalcitrant states justify their violation of international law by some principle of law is proof of its currency, for if it did not exist, there would be no point to looking for some title by which to justify state misconduct.  

While there is an undeniable trend towards supra-state unities such as international organizations with state-analogous features, there is, like some counter-force, a trend towards tribalism of which Brexit and the furor that ignited it are good instances.  Shortly after Britons voted to leave the Union, there was talk of Frexit and other exits that, fortunately for the world, have not gotten off the ground.  And with the British Prime Minister’s utter cluelessness about the future of the United Kingdom outside the European Union, I do not think that too many will be following suit anytime soon.

Asean integration put more grit into the union of Southeast Asian Nations but has not come anywhere near the European Union.  One thing is that the economies are so diverse as to allow for the degree of integration that was possible for Europe.  To be sure, we in this part of the world have taken great strides, but each country remains jealous about claims to “sovereignty.”

Since there can be no such thing as an international police force (the slow progress taken by the International Criminal Court in establishing an international criminal law regime is only one facet of resistance to international vertical enforcement), the most effective enforcement mechanism in the world scene remains “horizontal”—enforcement by States themselves.  And that is why, law that is not enacted by a supra-national legislature or universal parliament can be more effective if arrived at by the consensus of states, and that is just what the nature of conventional law and customary law is.

But “horizontal enforcement” presupposes a common resolve of states to live by law and to be governed by law.  And while all realize at some time or the other that it does not pay to be outside the fold of the law, it belongs to the nature of international relations hat politics and law cannot be divorced from each other, nor is it practicable, really, to draw a strict line of demarcation between the two.  Somehow, the application of law will consider political realities.  But it will not do to sideline the law nor to allow for its transgression by acquiescing to violations, for laxity in this regard only weakens that essential network of collective resolve by which lone international law is enforced.

The world has to find a way of making clear to Kim Jong Un that it does not pay to be dangerously naughty!  And treating him seriously rather than dealing with him like some spoiled brat might just be a step in the appropriate direction!

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