The Nature of International Law: Response to Kinsella

The purpose of this brief essay is to make a belated reply to Stephan Kinsella’s “International Law, Libertarian Principles, and the Russia-Ukraine War,” which we published in April 2022 and which he has also hosted on his own site. He has returned to the topic since, and I will take the excuse to state my own view, not as a refutation of his argument so much as a different way of understanding what is meant when people invoke “international law” with that peculiar mixture of priestly solemnity and gangster convenience that modern politics has perfected.

When people speak of international law, they generally assume that they are confronted by a stark moral choice. Either everything our rulers choose to call a treaty is binding upon all states everywhere, from the regulation of borders and armaments down to the claim that children have an enforceable right to free school dinners, or else the entire concept is a fraud, a rhetorical fig leaf for power, and no great power should ever restrain itself except where prudence demands it. On this view, international law is either sacred scripture or a confidence trick, and the only sensible posture is to choose which view makes better sense.

This is a false choice, though it is one that flatters both the lawyers of empire and their nihilist critics. The realists are correct up to a point. There is no global sovereign, no effective enforcement mechanism capable of compelling obedience from the great powers. Treaties and institutions that are solemnly described as repositories of international law are, in the final analysis, what Hobbes called covenants without swords. They bind only where the cost of compliance is lower than the cost of defiance, and they are discarded the moment that calculation changes. To deny this is not idealism but superstition.

It does not follow, however, that we should abandon all expectation of restraint in international conduct, or resign ourselves to a world of unlimited predation. The absence of enforcement does not mean the absence of norms. It means that norms, if they are to exist at all, must arise from interest rather than command, from calculation rather than revelation. The question is therefore not whether international law exists in some metaphysical sense, but which patterns of conduct are likely to reduce the frequency and savagery of war, and which are likely to make it more common and more destructive. The serious question is not, “What does the law demand?” but, “What forms of hypocrisy, restraint, signalling, and limitation allow rival powers to coexist without turning every crisis into a massacre?”

Here I need to clarify where I stand, because too much writing on this subject degenerates into competitive posturing from unstated moral assumptions. Whether or not I believe in one, I do not see an external arbiter of right and wrong as worth discussing. Perhaps there is a God issuing commandments to states, a cosmic tribunal distributing punishments and rewards according to moral merit. The problem here is that there is no general agreement on the existence of a Supreme Being, and no agreement on what that Supreme Being wants. This being so, it is better to ground all practical morality, whether private or public, in human desire. In practice, this arises most plainly from the desires of those with the capacity to impose their will. What is called moral behaviour can therefore be reduced to nothing more than a pattern of actions deemed desirable by those who matter, stabilised over time into habit and convention. This is not a cynical observation. It is either an acceptance of irreconcilable disagreement over wider claims – that, or a refusal to indulge in consoling fictions.

Now, if my guiding preference were racial supremacy, my moral reasoning would appear incoherent to anyone who did not share that preference. I might invoke legalistic interpretations of rules when they suited me, and dismiss those same rules as irrelevant when they obstructed me. I might quote Thucydides approvingly on the prerogatives of strength, insist on peace where injustice favoured me, and advocate war where it did not. None of this would trouble me, because the apparent inconsistency would be resolved by reference to a single underlying desire. Moral outrage is almost always a failure of translation between rival preferences, and the most offended people are often those least willing to state what they really want.

That is not, however, my preference. War is a great evil, not because it violates some external moral law – though it may – but because it produces suffering on a scale that most human beings, if pressed, would prefer to avoid. It is not something that I like. If you like it, I cannot persuade you otherwise, though I can at least observe that you will rarely enjoy it in the form you imagine. If international conduct is to be restrained at all, it will be because a sufficient number of powerful actors share the desire to minimise the occurrence of war, and to limit its conduct when it cannot be avoided. This is not a universal truth. It is a conditional one. If you value peace more than glory, purification, or vengeance, then certain constraints follow whether you like them or not, and the rejection of those constraints is not “realism” but the cultivation of disaster.

The most important of these constraints is predictability. Great powers that conduct their foreign policies according to known and limited interests are easier to live with than great powers that proclaim universal missions. Reasonableness and predictability tend to converge, not because states are virtuous, but because limited aims are easier to signal and easier to defend. A power that declares its interest in territorial security, the protection of trade, and the safety of its own citizens abroad may still fight wars, but those wars will usually be visible long in advance and constrained by shared expectations. Conflict does not disappear, but it becomes legible, and therefore containable. The world becomes less moral, perhaps, but it becomes less murderous.

The system begins to break down when states redefine their interests in expansive or abstract terms. A truly hegemonic power could, in theory, impose a universal creed on the world and achieve a grim stability through overwhelming force. If a single state possessed both the will and the capacity to enforce the global promotion of Buddhism, Calvinism, or environmental salvation, the result would be oppressive but predictable. War would be minimised because resistance would be futile. The world we inhabit is different. What we have instead is a cluster of great powers, each insisting that its own conception of justice, democracy, security, or human rights should be binding upon everyone else. Enforcement is selective and costly. There is no consistency. Sometimes there is intervention, sometimes silence. No state can be confident which it will face. This uncertainty is corrosive. It invites miscalculation and provocation, and it makes international relations unstable by design.

The domestic consequences are equally destructive, and they are rarely admitted by the moralists who demand foreign crusades while assuring their own populations that the cost will be modest and the virtue will be shared. Wars of defence require little propaganda, because they align naturally with the instincts of a population. Wars waged in the name of abstract values do not. They require lies and the deliberate cultivation of hatred in order to suppress dissent. These poisons do not disappear when the fighting stops. They distort the conduct of war itself and corrupt the prospects of peace afterwards, because victory achieved through moral hysteria is rarely satisfied with restraint. Punishment becomes an end in itself, and the settlement becomes a continuation of the war by other means, which is the opposite of what diplomacy exists to achieve.

The war in Ukraine is clear illustration of this dynamic. Russian interests in Ukraine are neither mysterious nor newly invented. Russia has no natural frontiers to the west and a long memory of invasion from that direction. Whether outsiders approve or disapprove is irrelevant. What matters is that Russian policy has been consistent for generations, and that Russia possesses both the will and the capacity to act upon it. Western powers may have their own reasons for attempting to detach Ukraine from the Russian sphere of influence, but they have shown, in practice, a reluctance to bear the costs that would be required to impose that outcome. The result has not been the vindication of international norms but the prolongation of a catastrophic war. Willing an end without possessing the means to achieve it is not moral seriousness. It is irresponsibility dressed as virtue, and it is a form of cruelty because it invites a weaker party to continue fighting on the promise of support that cannot be delivered on the required scale.

None of this requires the abandonment of ordinary moral judgement, provided one understands what that judgement is and what it can do. Theories of just war can be accepted precisely because they tend to reduce suffering, provided one already regards suffering as undesirable. Kinsella himself notes the connection between international law and traditions of just war reasoning, even if he is more optimistic about the legal vocabulary than I am. The same is true of the loose settlement that emerged from the Westphalian order, which limited the scope of legitimate interference and treated sovereignty as a stabilising fiction. These arrangements were never sacred. They were useful, because they humanised power and aligned restraint with interest. Their erosion has not made the world more just. It has made it more dangerous, because it has reintroduced holy war in secular dress.

The behaviour of Israel demonstrates the limits of moral rhetoric divorced from interest, and it also demonstrates the ease with which moral rhetoric can be used as an accelerant. Israel seeks to incorporate territories it considers strategically necessary and possesses the capacity to do so. In that sense, it behaves as great powers always have. This observation explains Israeli conduct without excusing it. The treatment of Palestinians has been accompanied by extensive and credible allegations of atrocities, including torture and ill-treatment of prisoners. Civilian suffering in Gaza has been the subject of sustained international alarm, including provisional measures indicated by the International Court of Justice in the South Africa v. Israel case, which repeatedly emphasises the vulnerability of the civilian population and the urgency of preventing irreparable harm.

Even if one brackets the moral judgement and looks only at interest, the pattern is self-defeating. A state that behaves like an ancient empire of terror cannot expect a stable peace unless it intends permanent extermination, and even extermination has its limits as a long-term policy in a world where retaliation exists. Wanton atrocity may secure obedience for a time, but it also guarantees endless enmity, and it makes every future settlement harder because it persuades the other side that compromise is merely a pause before further humiliation. The hard men who insist that fear is enough are often the same men who later discover, to their surprise, that fear is a seedbed of despair, and despair is a seedbed of suicide tactics.

American conduct in Venezuela and Greenland belongs to the same category of explanation without absolution, though it differs in technique. Venezuela has for years been subjected to heavy US pressure, including sanctions against the country’s oil sector and wider efforts to shape political outcomes. You may argue about the justice of this, but the structural point is clearer than the moral one: these are policies exercised within a claimed sphere of influence, justified as necessary, and pursued because the United States expects to bear the costs with manageable inconvenience. When great powers act like great powers, they do not first consult a textbook. They consult their capacities.

The distinctive feature is not the action itself, which is unexceptional in the history of power, but the manner in which it is justified. Invading a country to secure resources is common. Proclaiming the act as a universal moral precedent is destabilising. It invites imitation and escalation, and it also invites resentment among allies who realise that they are expected to applaud in public what they will pay for in private. The same is true of the practice of treating foreign leaders as fair game for abduction or domestic prosecution: there is nothing sacred about heads of state, but removing that convention removes one of the remaining brakes on total war, because it tells every endangered ruler that surrender is personal extinction.

This is why the recent rhetoric surrounding Greenland is more dangerous than the demand itself. Annexation for strategic reasons is as old as politics. What undermines restraint is the abandonment of pretext, the refusal to cloak interest in the language of necessity. Trump has publicly raised the Greenland question, and the European reaction shows that the old veneer of “rules” is already cracking into naked anxiety about security. Norms survive not because they are never broken, but because breaches are denied or disguised. Hypocrisy is often contemptible, but it can also serve a civilising function. It allows exceptions without destroying the rule. It preserves a shared vocabulary of restraint even as power quietly overrides it. To discard that vocabulary entirely is to invite a world in which nothing limits violence but exhaustion, and exhaustion is a brutal governor because it only applies after the bodies have accumulated.

Nothing I have argued depends on any force external to human desire. If one prefers war to peace, or purification to coexistence, then these arguments will fail to persuade, and the failure will not be mine but the world’s. If, however, one agrees that limited wars are preferable to unlimited ones, and that peace is preferable to both, then certain patterns of behaviour follow whether one likes them or not. These patterns are not laws in the juristic sense. They are habits of power that reduce catastrophe. If one wishes to call them international law, then let it be so, through stripped of its present sanctimony. What matters is not the name, but the restraint it once helped to enforce, and which we abandon at our peril, because the world without shared pretence is not a world of honesty, but a world of blood.

If modern international law has any value, it lies not in its pretence of binding force, but in its capacity to keep the great powers talking in a language that implies limits. Once that language is discarded, it will not be replaced by clarity. It will be replaced by the oldest truth in politics, which is that men who believe themselves righteous are often those most willing to kill.