International Law in International Politics

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International Law in International Politics

In the field of international politics, realism, either classical realism or neo-realism, has very little room for international law. It dismisses international law as being virtually irrelevant to matters of high politics. In contrast, in the field of international law, legal positivism has paid scant regard to non-legal political considerations that might influence the implementation of international law. Positive lawyers have concentrated on determining a body of legal rules and believe it should be obeyed even if it is not. Thus there is a power-law divide; realists, accepting legal positivists’ standing that law is a body of rules, deny the significance of international law on state’s behavior and distain international law as an epiphenomenal role in the ordering of international life.

This paper attempts to clear up realists’ misunderstanding on the nature, functions, and influence of international law in international politics. I argue that 1) realists misperceive international law’s nature as a body of rules instead of a process--either a political one as proposed by the policy-oriented approach (McDougal & Lasswell, 1996) or a legal one as proposed by the international legal process approach (Boyle 1985, Chayes 1974); 2) realists misperceive international law’s functions as merely constraint on state’s behavior instead of a wider range of functions such as communication, justification, reassurance, monitoring and routinization.(Chayes & Chays 1995, Franck 1990); 3) realists misperceive international law’s influence as having no significance on politics at its own right instead of closely relating and affecting politics. The paper is divided into three parts. In the first part, it discusses how realism understands international law and why it perceives international law as having no intrinsic importance on international politics. The second part discusses why realists are wrong with their perception on the nature, function and influence of international law. Besides, some political response to the realist challenge, such as institutionalism and liberalism, are also discussed. So are some possible critiques of our arguments. In the last part, a conclusion is drawn.

Realist Perception of International Law

The most striking feature of realism is its use of the power concept to explain the international political interactions. The primary unit of analysis is the State which is believed to operate in an anarchical international system dominated by conflicts (Gilpin 1984). State’s foreign policy is based on the rational calculation which is pursued to maximize the power of the state.(Keohane 1986). Realism aligns international law with power in so far as international law is regarded as a tool at the disposal of the most powerful. Thus, international law is considered to have no significance in its own right and only serve as the excuse of the powerful.

However, realists are confronted with the fact that States do comply with the international law in some circumstances. So they have to make efforts to explain this phenomenon. For example, Bull postulates four reasons why States obey international law: habit or inertia, coincidence, coercion, and reciprocal agreement. He recognizes that the interests of a State may sometimes coincide with international law but he does not believe that a very substantial degree of conformity to the rules of international law means that international law is a powerful agent or motive force in world politics. (Bull 1977, 139-140) Bull’s interpretation of international law is still consistent with realist assumptions that States act according to what they perceive to be in their own power interests and that international law is, in its own right, incapable of moderating those interests to any significant degree. In developing the above points of view, Bull embraces the legal positivist notion on the nature and function of law. He defines international law as “a particular kind of body of rules” and believes the function of law is to sanction the violators. (Bull 1977, 129 -130).

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In short, realist perception on the nature, function and influence of international law can be summarized as a body of rules of coercion without significance in its own right.

However, the realist portrayal of international law is still unable to account for occasions when powerful States show deference to international law even when to do so appears to be contrary to their power interests. For instance, in December 2002, the United States has allowed a North Korea ship carrying 15 Scud missiles and warheads to Yemen to proceed on its way after the vessel and its crew were ...

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