The Use and Abuse of Law

Feb. 23, 2016 We examine the relationship between law and power in geopolitics.

|February 23, 2016

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By Jacob L. Shapiro

In the West, the rule of law has become a sacrosanct principle. Whether the rule of law is applied in an equal manner is a different story – but in the West, by and large, law defines what is acceptable behavior and what behavior will be punished by the state. Laws, however, are also an illusion. A sheet of paper that says murder is a capital crime means nothing without the power to investigate, prosecute and punish. And having the law on your side doesn’t mean you have power. Power is the ability to force someone to do what you want them to do. Law can be a useful way of doing that – but laws are not always respected. This is true in every aspect of political life – from the very local to the international – and we have witnessed this in many recent and historical geopolitical developments. Let’s pick just three examples – criminal justice, nationalization and international legal organizations – to demonstrate.

On Feb. 21, the South China Morning Post reported it had uncovered court documents showing that law enforcement agencies in Macau had turned over both Hong Kong residents and Chinese citizens to the Chinese government for investigation and prosecution. Macau is a former Portuguese colony that was only integrated into China in 1999, and even then as a special administrative region. The Macau Basic Law stipulates that Macau is to operate with a high degree of autonomy – which includes maintaining its own legal and law enforcement system – until at least 2049.

Two of the cases in question occurred in 2007 and 2008 and, at the time, Macau’s Court of Final Appeal ruled that the extraditions were illegal and undermined rule of law in Macau. So neither the 1999 agreement with China nor the protestation of a Macau court, prevented Macau authorities from turning over these two individuals, both of whom were residents of Hong Kong – another of China’s special administrative regions – despite the fact that the defendants were produced illegally.

To any China watcher, this comes as little surprise. Among the numerous indications that Chinese President Xi Jinping is becoming more of a dictator with each passing day are his attempts to censor and control the spread of information inside and outside China. In October and November 2015, five men associated with the Mighty Current book publisher and the Causeway Bay Bookstore in Hong Kong, both of which are known for selling books critical of Chinese leaders, disappeared – only to reappear a few months later. One, a Swedish citizen, confessed last month on Chinese state television to a fatal hit-and-run accident; another, a British citizen, is reportedly “cooperating” with an official Chinese investigation. None of these extraditions were legal. And yet, they occurred. The force of law did not help the Hong Kong booksellers or the Macau and Hong Kong residents, all of whom now face Chinese justice on the mainland.

This is not strictly a Chinese issue. The United States – a country where laws are so important that its soldiers must first swear “to protect and defend the Constitution,” not its citizens or leaders – also engages in such behavior. In 1985, a Mexican national named Humberto Álvarez Machaín was allegedly involved in the kidnapping, torture and murder of a Drug Enforcement Administration (DEA) agent in Mexico. Five years later, Álvarez was kidnapped by a U.S. bounty hunter paid by DEA agents and brought to the United States to stand trial for what he had allegedly done.

The U.S. had an extradition treaty in place with Mexico at the time – but kidnapping was certainly not permitted under the treaty. The legality of Álvarez’s appearance before an American judge reached the U.S. Supreme Court. Writing for the majority, former Chief Justice William Rehnquist found that the extradition treaty “[did] not purport to specify the only way in which one country [could] gain custody of a national of the other country for the purposes of prosecution.” Álvarez’s trial went forward despite intense protests from the Mexican government, and though Álvarez was acquitted in the end, due to lack of evidence (and not because his kidnapping was deemed illegal), the underlying principle is still clear. Mexico believed Álvarez’s abduction was illegal – and that did not help Álvarez at all once he had been seized by a private American citizen.

Another example of the hollowness of legal conventions is the nationalization of private companies by states. There are two ways these nationalizations can play out, either with a price or without one. An example of the former can be found in Saudi Arabia. In 1933, Saudi Arabia granted Standard Oil of California (today’s Chevron) a concession to search for oil – and in 1938 it discovered its first oil field. The subsidiary in charge of the project was called the California-Arabian Standard Oil Company – which changed its name to the Arabian American Oil Company (Aramco) in 1944. Needing additional buyers for the massive quantities of oil discovered, Standard Oil of California transferred interests to the companies known today as Exxon Mobil and Texaco.

The founder of Saudi Arabia, King Abdulaziz, first threatened nationalization of Aramco in 1950, which worked effectively enough to get the kingdom a 50 percent share of the profits. The intense prosperity of Aramco and the rise of Arab nationalism made even this compromise untenable. The Saudis did not want to nationalize Aramco overnight, recognizing they still needed the technology and skill of these American companies – but they were also not content to let these companies keep Saudi oil profits for themselves. The Saudis completed the nationalization of Aramco in 1980, paying $1.5 billion, according to Petroleum Intelligence Weekly. It’s unknown just how much Aramco is worth today, but the estimates are between $1 trillion and $10 trillion. That’s not a bad return on investment.

To see how nationalization plays out when the state does not pay for taking over ownership, look no further than the 1959 Cuban revolution. The U.S. “freed” Cuba from the Spanish in 1898, and in the decades that followed, American companies made a great deal of money in Cuba. Historian Hugh Thomas estimates that, in 1926, the U.S. owned 60 percent of Cuba’s sugar industry, to cite just one example. Under Cuban leader General Fulgencio Batista, this status quo became acceptable and Cuba and the U.S. maintained very close relations. William Wieland, the director of the Caribbean Division and Mexico at the U.S. State Department, told Newsweek: “I know Batista is considered by many as a son of a bitch, but American interests come first… at least he was our son of a bitch.” Only when it became clear that Batista was in danger of being overthrown did the U.S. halt arms sales to his forces in March 1958.

In 1957, the New York Times described the Cuban revolution as a “new deal” for Cuba. And it most certainly was. Fidel Castro passed agrarian reforms that prevented non-Cubans from owning land and seized any previous holdings for the state. Besides becoming an ally of the Soviet Union, Castro’s regime seized American and foreign-owned oil refineries, banks, sugar mills and other assets. American companies alone filed 5,913 claims worth, at the time, almost $2 billion to the U.S. Foreign Claims Settlement Commission. The Cuban government has not paid a dime toward these claims and this remains one of the sticking points between the U.S. and Cuba as they normalize relations. In the end, Cuba paid no price, and Saudi Arabia paid a discounted price – the key point is that the companies in both scenarios had no say in their nationalization. No piece of paper or previous agreement prevented Saudi Arabia or Cuba from nationalizing these assets.

A last example of the weakness of law is in international legal organizations. At Geopolitical Futures, we write a lot about the inefficacy of the European Union, and how power rests not in bureaucratic meetings in Brussels but with the various nation-states that consent to sit in the meetings. But there are plenty of other international organizations whose pronouncements mean very little. The United Nations is one example. On Dec. 9, 1948, the U.N. adopted the Convention on the Prevention and Punishment of the Crime of Genocide. In it, the U.N. agreed that genocide is “a crime under international law” and that U.N. member countries are charged with both preventing genocide and punishing those responsible. Yet, the U.N. has failed to prevent genocides – from Rwanda to Sudan and elsewhere – while many of the perpetrators of these genocides have gone unpunished.

The International Criminal Court (ICC) is another example. The ICC is supposed to be the enforcement mechanism for a convention like the one cited above. But the ICC has no military or police force of its own. Most of the people the ICC has indicted are from African countries – no leader or soldier from a major world power has been indicted. Both Democratic and Republican administrations in the U.S. have opted not to sign the Rome Statute, which created the ICC, because neither want the U.S. to recognize the ICC’s jurisdiction. The ICC issued an arrest warrant for Sudanese President Omar al-Bashir in March 2009. And yet, al-Bashir is still the president of Sudan, and Sudan is still recognized by most of the rest of the world. International law has been used to prosecute leaders only when these leaders were old and dying (Augusto Pinochet of Chile) or had been defeated in war (Slobodan Milošević of Serbia). The ICC, the U.N.’s International Court of Justice and any other similar organ can issue as many warrants as they want. The words themselves mean nothing without some sort of power to back them up.

My intention is not to judge whether the behavior of the U.S. and China when it comes to extradition is just, or whether the actions of the Saudis or Cubans are fair, or whether the task international legal organizations set for themselves is righteous. I am merely demonstrating how power works – how laws and conventions are expressions of power, and not power in and of themselves.