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.

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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 detained by US Navy, in spite of American concerns that the cargo was being taken into a potential terrorist country. Similarly, in his book of The Power of Legitimacy among Powers, Franck gives a similar example. When protecting vessels in the Gulf in early 1988, the US Navy permitted the passage of a ship carrying a load of Silkworm missiles to Iran even though it perceived that this would increase the danger to both protected and protecting ships in the region. The permission of passage of the ship was only because the State Department had determined the interception of the vessel was illegal. (Franck 1990,3-4). The behavior of states does not seem to validate the realist assumptions of the insignificance of international law. Therefore, we need to further discuss why the realist perception of international law is wrong.

Why It is Wrong

As mentioned above, realists misunderstand the nature, functions and influence of international law. This misunderstanding is a logic chain. Their misperception of the nature of international law leads to their misunderstanding of the law’s functions and thus underestimates the law’s influence. In details, since realists see international as a body of rules, they will naturally categorize state’s behavior as legal—compliance with the rules, and illegal—incompliance with the rules. During this process, they allow no room for political consideration. Then if a behavior is illegal, there must be some kinds of punishment. Otherwise the rule makes no sense. Since there is no world government or global authorities, there is no punishment for breakers of international law. Therefore, the international law is nonsense.

Realists’ Misunderstanding of the Nature

The first and most comprehensive challenge of realist misunderstanding of the nature of international law was that of Myres McDougal and Harold Lasswell. For them, law itself was a political process instead of a body of rules. Based on the definition of politics as the adversarial process of decision about the distribution of values in society, they defined law as the subset of this flow of decisions that could be considered as both “authoritative” and “effective”. “Effective” means “controlling”, thus introducing the power element; “authoritative” means in conformity with values of a community. Defined as a flow of authoritative and effective decisions, law becomes the political and social process which ultimately determines its content while retaining the identity of law. In a domestic community sharing common values, the law can be identified as the authoritative expression of those values. But in the international system, no such values exist. Therefore, the function of international law is to support realization of values rather than the restraint of behavior. And it is the task of international lawyers, or “spokesman for the field of international law” in the authors’ words, to use a range of policy skills to determine which system of laws can best further “human dignity” and distinguish such systems from those that deny human dignity. And then the selected laws as “appropriately authoritative language can foster the realization of effective systems of public order at every level of inclusiveness up to and including the community of mankind, systems consistent and compatible with the overriding goal of human dignity.” (McDougal & Lasswell, 1996). In sum, by defining the nature of law as a social and political process, the law’s function is not limited to the restraint of state behavior. It is also the realization of values. The enhancement of international law’s function naturally increases its influence in international politics. As tool of communications and international law plays an important role in shaping world order.

While McDougal and Lasswell see international law as an integral part of ongoing political and social processes, Chayes and Boyle consider the nature of international law as international legal process. It concerns itself with the question: “How-and how far-do law, lawyers, and legal institutions operate to affect the course of international affairs?” (Chayes et al 1968, xii) Therefore, some of scholars of this approach concentrate on collecting empirical evidence demonstrating the role of international law in specific internationals crises. One good example is Chayes’ analysis of Cuban missile crisis. During the crisis, international law did help to shape the decision-making process of the US government. And from his analysis, we could understand the functions of international law as constraint, communication and justification. For instance, at the beginning of the crisis, the State Department lawyers advised the situation in Cuba did not constitute armed attack on any country and thus under the UN Charter, US could not use or threat to use military force to solve the problem. Here, international law works as a constraint on States’ behavior. In the crisis, a lawyer said the USSR had “a penchant for legalities and would be impressed by a good legal case”. Here, international law woks as a platform of communication for states with different ideologies. Later, according to the Article 52 of the UN Charter, US got the authorization of quarantine from the Organization of American States. Here, international law works as a justification. (Chayes 1974) With its function of constraint, communication and justification, international law creates some common standards, avoid the need for negotiating in similar circumstances, crate justified expectation and confidence on how other states will behave, and thus promote cooperation to pursue the common interests. These functions of international law definitely make it more important in international politics rather than at the disposal of the powerful states.

The above discussion of policy-oriented approach and international legal process approach is mainly to correct the realist misunderstanding of the nature of international law as a body of rules. As shown above, if we understand international law as a process, either political or legal, we can gain the insight to the more interesting nature of it; and as we have discussed before, since the nature, the function and the influence are closely correlated. The new and more precise understanding of the nature of international law leads us to realize more functions of it, and thus increase the influence of it. After discussing its nature, let us move to its functions.

Realists Misunderstanding of the Function

Fore realists, the function of law is to sanction or restrain states’ behavior. In order to clear up this misunderstanding, scholars develop two contradictory, but similarly motivated, maneuvers.

On the one hand, some scholars argue that international law is like domestic law, but domestic law operates in far more complex and subtle ways than by simply restraining behavior. For example, Chayes argue that domestic law is not so court-driven as people might think, and thus the lack of a judicial institutions in international level is a difference in degree rather than in kind.(Chayes et al 1968, xiii-xv). Meanwhile, some scholars differentiate domestic public law such as constitutional law and administrative law from domestic private law and argue although private law is enforced by the power of State, domestic public law is not. Thus, the absence of coercive forces in the international level does not make international law different from many important domestic laws. Furthermore, scholars such as Coplin argue that both international law and domestic law communicate society’s concept of itself (Coplin 1966). In short, this maneuver corrects the misperception on the function of international law by reinventing and reconsidering the functions of domestic law.

On the other hand, some scholars argue that the domestic analogy of international law is false and misleading. For example, in his book The Power of Legitimacy among Nations, Franck first cited the argument of D’Amato that “that the international and domestic legal systems are really twins—is elegant, but, ultimately, it rings false……The conduct of states in international relations is not like, not even quite a bit like, the way persons (or institutions) interact in a nation.” (Franck 1990, 31). Then Franck comes up with his own perspective that “Obedience to international rules is a recognition of the existence of an organized international community …… the function of this community is to legitimate, or withhold legitimacy, from its members, institutions, rules and mode of conduct, thereby affecting both the rights and duties of members and institutions, as well as the rules’ capacity to obligate and secure the community’s compliant behavior.” (Franck 1990, 39). In short, this maneuver corrects the misperception of the function of the international law by refusing its resemblance to domestic law and thus frees the international law from the limitation of functions of domestic law.

The above two maneuvers, although using different strategies, reach a common conclusion that the function of international law is not affected by the absence of central authorities in the world and is not limited to the function as the restraint to state behavior. It can perform a wider range of functions such as communication, justification, reassurance, monitoring and routinization besides constraint.

Realists’ Misunderstanding of the Influence of International Law

In fact, the realists’ misunderstanding of the nature and the functions of international law will inevitably cause them to underestimate the influence of international law. If they are right to say that the capacities or power rather than legal norms account for the behavior of states, we should witness the repetitive premeditated and deliberated violation of international law because realists holds that international law fails as soon as national interests diverge from what the law requires.

However, the real world situation is different from what the realists suppose. As what Chayes argues in New Sovereignty, although we see some worrisome cases of non-compliance such as Iraq’s invasion of Kuwait and North Korea’s refusal to the inspection of International Atomic Energy Agency, such cases are the exception rather than a common phenomenon. The non-compliance, as analyzed by Chayes, may come from the “ambiguity and indeterminacy of treat language, limitations on the capacity of parties to carry out their undertakings, and the temporal dimension of the social, economic, and political changes contemplated by regulatory treaties”.(Chayes & Chayes 1995, 10) But states do not do it intentionally.

Besides, we also witness a growing influence of the United Nations on international affairs after the Cold War. And the World Trade Organization offers us another good example of compliance. Therefore, realists misunderstand the importance of international law. This point will be further discussed in the following section.

Beyond International Legal Studies

All the above discussion is confined to the field of international legal studies. But after discussing realists’ underestimation of the influence international law, we need also to discuss some political response to this misunderstanding. Since the response from the literature of international relations theory is not the focus of this paper, we just discuss them briefly.

The first response comes from the regime theory, or the institutionalism. It disagrees with realism on that power is the only independent variables in explaining international interaction. They argue that the international regimes — sets of principles, norms, rules and decision-making procedures—also shape the states’ behaviors and expectations. Realism not only misunderstands the importance of international norms (similar to international law) but also misunderstand the nature of international politics. In fact, institutionalism and international legal studies share a common ontology of the international system: the actors, the structure with which those actors act, and the process of interaction. And both concentrate on the studies of improved institutional design for better efficiency and compliance.

While institutionalism attack the “power as only explaining variable” assumption of realism, liberalism attack the “state as the unit of analysis” assumption of realism. It emphasizes the interaction between states, domestic civil societies and transnational civil societies. Liberalism may complement institutionalism as the study primarily of law among liberal states, which is also a proposed topic of our course. Other international political theories such as constructivism also provide us insight to the logic of anarchy and self-help of states which is also an important assumption of realism. Since the limit of the space, we just skip it.

Some Possible Critiques of Above Arguments

One possible critique may state that it is not realists who misunderstand the nature, function and influence of international law but the scholars of international legal studies re-conceptualize their understanding of international law in order to response to the realist challenge. This critique is plausible because the realist challenge of international law was before the development of above legal arguments. But I think the purpose of research is not to argue who is wrong or not but to improve our understanding of the complicated international interaction. It is not important whether it is realists’ misunderstanding. It is important that we gain new insight into international law and international politics.

Another critique may be that in the above discussion we just present several legal approaches’ responses to the questions but we do not have a unified approach to account for all the aspects we’ve discussed. I think the possible solution may be the convergence of international legal studies and institutionalism, which will offer us better understanding to both international law and international politics.

Conclusion

In the paper, we mainly address three misunderstandings of realism on the nature, function and influence of international law. Instead considering international law as a body of rules of coercion without significance in its own right, we argue that it is a process with multiple functions and importance in its own right. We’ve examined and discussed several important international legal approaches and in the end, extended our discussion to the field of international politics a little bit. Although we still leave some problems unresolved mainly because we do not further the discussion of international law and institutionalism, this paper, as a summary of what we have learned in this quarter, is still meaningful, I believe.

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