Bernie Sanders and the Salvation of International Law
Updated: Sep 22, 2021
It has been over a month now since Bernie Sanders dropped out of the US Presidential race and endorsed Joe Biden as Democratic nominee. Buoyed by a young and vibrant coalition of supporters, Sanders’s campaign offered a radical alternative to the establishment politics of stagnation and complacency in Washington DC that continues to cultivate and augment entrenched patterns of structural inequality—both in the United States, and, as this piece explores, across the world. As we reflect on the many ways in which Sanders and his ‘movement’ altered political realities, his biggest success might be in redefining and thus resurrecting the faltering constructs of international law. Many academics and politicians have criticised the inequalities inherent in international law but Sanders is the first among them to come within striking distance of the US Presidency--the one position in the world that could reshape it.
Why is the US foreign policy so integral to the effective shaping and enforcement of international law? Many other countries, including China, have recently engaged in flagrant violations of international law both within and outside their borders. Notwithstanding democratic backsliding and a partial erosion of its institutions, civil society, public participation, and the exercise of universal franchise in the US still shape who gets elected and consequently who shapes US foreign policy and engagement with international law, which cannot be taken for granted in several authoritarian regimes.
The Language of ‘Lawfare’ and Endless Wars
The Achilles heel of international law lies in its relative ambiguity in comparison to municipal law, and tellingly, in its lack of enforceability. This has allowed powerful countries, including the United States, to evade, manipulate or obstruct the global legal system—thereby puncturing it at critical junctures.
Major-General Charles C. Dunlap coined the term “lawfare” to describe the strategic use of the language of international law as a ‘weapon of war’ to further America’s strategic interests. US ‘lawfare’ reached its zenith as the US sought to justify its invasion of Iraq in 2003. Infamously christened the ‘Bush Doctrine’, US legal scholars advocated for an inconceivably expansive reading of the right to self-defense enshrined in Article 51 of the UN Charter that justified pre-emptive action even in the absence of a credible, imminent threat to the US. As we now know, Saddam Hussein was not harbouring weapons of mass destruction as was then claimed by the US. The US intervention sent the Middle East into a degenerative spiral and an ‘endless war’ that continues to this day. President Obama's administration similarly relied on an over-expansive reading of the right to self-defence to authorise drone strikes in Pakistan, Afghanistan, Yemen and Somalia, among other countries.
On the other hand, throughout his years in Congress, Sanders has been a consistent critic of American ‘exceptionalism. He has voted and advocated against use of force in Iraq, Chile,Vietnam, and Yemen and called for a limiting of drone strikes citing disproportionate civilian casualties. Well before the Snowden revelations apprised the world of the extent of global surveillance by US intelligence agencies, Sanders upheld the now globally recognised right to privacy by voting against the 2001 US PATRIOT Act and its subsequent updates, which gifted US intelligence agencies these exceptional powers.
Equality and Subsistence
Since its inception in the aftermath of World War II, the modern rules-based international order driven by the tenets of international law has had the potential to serve as a great leveller between sovereign countries and its peoples. As argued by Quinn Slobodian in The Globalists, however, this project may have been doomed from the start. The intellectual founders of modern global governance viewed the multilateral rules-based international order as a means of occluding the demands of democratic grassroots movements stirring within newly decolonised borders—an inherent ‘democracy deficit’ in world order.
In Not Enough, Samuel Moyn highlights the inadequacy of international human rights law when confronted with inequality, exacerbating market fundamentalism across national borders. Influence exerted on international institutions by an elite mix of powerful countries, multinational corporations, and like-minded academics—termed the Transnational Capitalist Class (TCC) by noted Indian scholar B.S. Chimni—has shifted the priorities of global governance away from fighting structural inequality. The goal instead has been limited to sufficiency, with rights guaranteeing only a minimum standard of living for everyone without addressing the gap between the powerful and the disregarded.
Sanders recognizes this. He has often argued that US foreign policy must account for "outrageous income and wealth equality" and called for tackling the international oligarchy through more robust taxation policies, fairer trade deals, and an international progressive movement founded on shared prosperity, security and dignity for all people.
A glimmer of hope
In 2017, Sanders delivered an iconic foreign policy speech at Westminster College in Fulton, Missouri—the same venue where Winston Churchill delivered his famous 'Iron Curtain' speech in 1946 highlighting the increasing divergence between the US and the USSR at the dawn of the Cold War. Sanders’s speech was premised differently—on the idea of a shared vision for human prosperity. He praised the vision of the United Nations as a forum for fostering dialogue while acknowledging the need for institutional reform. Meaningful dialogue however must break the shackles of capture by the elite few and engage people across nations at the grassroots level. Indeed, the language of international law is only as relevant as its ability to navigate political gamesmanship, and empower the vulnerable.
Bernie Sanders and India
Bernie Sanders and India got off to a rocky start, owing first to Sanders’s op-ed criticizing the revocation of Article 370 in Jammu & Kashmir last year and a subsequent tweet criticizing Trump’s silence on what he called “widespread anti-Muslim mob violence” in Delhi earlier this year.
These are politically charged issues and offering my opinion or analysis in this article will deviate from the core point I am trying to make. Instead, I offer three key takeaways for better engagement going forward.
First, Sanders spoke up using the language of international law and human rights--the same language he has used to criticize Chinese oppression of the Uighur minority and President Trump’s follies. He encouraged President Trump to do the same but in no way hinted at the encroachment of Indian sovereignty. Instead of dismissing his criticism as malafide, academia and government voices in India that disagree with him should use the same tenets of international law to oppose his views. As Monica Hakimi points out, providing a common language for fostering positive conflict between both states and non-state actors alike is ‘the work of international law.’ Actors in India must use this common language to articulate alternate realities of global politics while also not shying away from highlighting human rights abuses across countries, including in the US. That said, we must remember that the protection and celebration of sovereign equality is one of the core pillars of modern international law. While feedback and dialogue with external actors is positive, the final decision on India must be made by the Indian people and our Constitution alone.
Second, Sanders’s vision for a progressive international legal order takes leaves out of India’s foreign policy playbook. Pandit Nehru championed a liberal international order against imperialism and racism. Throughout the 1970s, India was part of a coalition of global south countries that sought to rewrite the entrenched rules of the existing economic order with limited success. Indian state actors and civil society have a renewed opportunity to play that role again across several emerging and contested domains of global governance including cyberspace, trade, and climate change. These legal regimes are not being contested and created only at the multilateral level. Transnational advocacy networks are galvanizing action on certain core issues and exerting pressure on policy-makers. Sanders’s progressive movement is a key example of such a network, which India should look to work with and shape. Again, agreeing on every domestic or foreign policy issue is not a prerequisite for engagement. Respect for international law is.
Finally, India’s constitutional fibre through its twin commitments to the preservation of civil liberties and the mitigation of structural inequality echo Sanders’s policy vision. Across party lines, the Indian welfare state demonstrated commitment to socialist ideals well before Bernie Sanders got going. As the world is ravaged by economic strife owing to the ongoing pandemic, India must act as a norm entrepreneur for these progressive ideals.
Going forward, it is possible that Democratic nominee Biden might adopt some of Sanders’ foreign policy ideas to draw votes from his supporters and mend the rifts in the Democratic party. Even if Biden fails to do so, Sanders has permanently changed the fulcrum of discourse on foreign policy in US politics. Progressive lawmakers such as Ro Khanna, Chris Murphy, and Alexandria Ocasio-Cortez can use this momentum both through formal debates in Congress and informal discussions across the Beltway. Thanks to Bernie’s campaign, politicians know that it is possible to win elections in the US without compromising on the ideals for a fairer, more just world. This is a beacon of hope for citizens of the emerging world.
(Arindrajit Basu is a Research Manager at the Centre for Internet & Society, India, where he works on issues at the intersection of geopolitics, technology, and constitutional governance. A lawyer by training, he holds degrees from the University of Cambridge (UK) and the National University of Juridical Sciences,Kolkata).