By Tommy Gale
To some, international law is the bedrock of international order that acts as the unique force of unity and reason for the international community. To others, international law is not even considered worthy of inclusion in the subject of ‘law’ and is instead seen as a futile and dysfunctional melange of customs, agreements and principles that does not control, but is controlled by, the all-powerful system of the balance of power in an anarchic and self-interested world of sovereign states. I will argue that in some ways, it is indeed correct that international law has provided (especially since the establishment of centralised institutions like the ICJ) a form of international order, most notably in the spheres, for example, of economics and human rights, and that in an overwhelming majority of cases international law is respected by states. Unfortunately, however, the minority of cases in which the law is not respected are also the most important with regard to the maintenance of international order; in particular, those surrounding war. In some cases, I will argue, international law not only fails to facilitate the development and maintenance of international order, but actively serves to work against it. Whilst international law is clearly of value in certain domains, in those which matter it is more a product than a provider of international order.
I will first turn, however, to what international order actually constitutes as a basis on which to determine if international law is a provider of it. Whilst almost all definitions of order contain some reference to regularity and predictability, and conform at least to some extent to the Augustinian (in Bull, 1977, p. 4) conception of order as ‘a good disposition of discrepant parts, each in its fittest place,’ there is significant variation beyond this. Many realists, for example, propound the idea that order is derived from the pre-existing workings of the international system and that it is the maintenance of the balance of power equilibrium (as demonstrated during the Cold War, for instance, by the bipolar relationship between the USA and the USSR) that is the real determinant of international order. In other words, they see order in the international system not as a result of any particular form of global governance (in fact, Hedley Bull (1977, p. 7) specifically states that order should not be defined in terms of adherence to rules because they are only a means to creating order as opposed to part of the definition of order itself) but as a resultant product of the relations between individual sovereign states. Given that, as Bull (1977, pp. 5-6) put it, order is both elementary (to the existence of society), primary (in the sense that other goals presuppose it) and also universal (in that all societies seem to aspire towards it), any action that increases order is likely to be the preferred course of action. Conversely, those theorists who adhere to the more liberal school of thought see order far more as a concomitant result of global governance and international law and as something that, through the thickening web of cooperation and interdependence, will be achieved through the emergence of a universal set of common values. In essence, the realist tradition has tended to propound a system of order based on the principle of coexistence (that is, with the state remaining as the principle agent in world affairs) whilst the liberal tradition has tended to lean more towards a system of cooperation where international organisations transcend state boundaries to catalyse and maintain order. It is on this basis that the two schools of thought fall on either side of the question ‘can international law provide international order?’
In many ways the liberal case for international law as the basis for international order would appear to have been substantiated since the end of World War Two. Its assertion that international law maintains order in a way that transcends state borders has been shown to be justified on both a sub- and trans-state level. At the sub-state level, individuals have become, in many cases, the subjects of international law as opposed to the state itself. This has been shown (as noted by Bull, 1977, p. 145) through such instruments as the Charters of the Nuremberg and Tokyo War Crimes Tribunals, the Universal Declaration of Human Rights of 1948, the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights of 1966, and the European Convention of Human Rights of 1950. At the trans-state level, too, international law has become far more prevalent. In the domain of social issues, bodies such as the World Health Organisation and UNESCO provide international services whilst the International Telecommunications Union and the International Civil Aviation Organisation preside over communications and air transport respectively. I would argue, however, that the most significant example of the increasing scope and power of international laws as instruments to maintain international order is found in the domain of the ever-globalising economy. By its very nature as a homogenised and globalised system, the global economy requires common laws and institutions in order to effectively and consistently govern its markets and practices. Such institutions as the United Nations Economic and Social Council, UNCTAD, the World Bank and the International Monetary Fund have key jurisdiction over international economies. In this sense, the global economy is a good example of a system in which international laws provide international order, although evidently these laws are not always successful in their maintenance of this order given, for example, the 2008 financial crisis that was spurred to a large degree by inadequate legal regulation over bank leverage ratios and the sub-prime mortgage market, among other factors.
Furthermore, international law has become far more effectively enforced through the centralisation of both its creation and enforcement. As Morgenthau (2006, p. 263) notes, the ICJ especially has moved beyond the partisan decentralisation of its predecessors to become a ‘truly centralised judicial agency’ that is effective because of its hierarchical organisation and its adherence to the rule of stare decisis. Whilst it is true that there are still many other smaller courts created by special treaties for exceptional parties and specific types of disputes which are not bound by the strict hierarchy of the ICJ or the rule of stare decisis, it is nonetheless the case that on the whole the system is far better prepared to deal with the maintenance of international order than it once was. Clearly, then, the system is by no means perfect and some liberal scholars have argued that although the international law may not be able to adequately provide international order at present, if the system was further improved it certainly could in the future. For example, theorists such as Richard Flack (referenced in Bull, 1977, pp. 148-49) have suggested a ‘solidarist’ approach to international law by moving away from a system of consent to one of consensus. Instead of basing international law on the explicit permission of signatories, he argues, it would be far preferable to base it on a majority vote to avoid the situation where issues which cannot be unanimously agreed on cannot be legislated on either given that consent will be witheld by objecting states. Whilst this may lead to a similarly unsatisfactory situation in which, given there is often no consensus, there would just be groups of countries claiming to represent ‘consensus’ whilst in actuality just undermining traditional rules, it may also help to move the situation towards one where it is possible to allow internationl law to facilitate internatinoal order on a more regular basis and thus the relationship between the two would be postiviely developed if only by virtue of repetition and habit. Other, perhaps more radical, theorists have called for the interpretation of international law to progress further in order to conform to a system of ‘policy-orientated jurisprudence’. By this, theorists such as Röling (referenced in Bull, 1977, p. 151) refer to what they see as the necessary change from a situation where law ‘is interpreted statistically and mechanically, and is therefore necessarily out of touch with the changing values of the world community’ to a situation where law ‘is expounded dynamically and creatively and can keep abreast of these changing values.’ Clearly, there is a danger that a shift by lawyers towards an approach that emphasies the values of subjects like sociology, ethics and politics could actually lead to a decline in the role of international law in international relations (the opposite of the proposed effect) and also that if the distinction between interpreting existing laws and creating new ones (in other words, replacing the law with non-legal values) is not maintained, then international lawyers would cease to have anything distincitive to contribute and law would no longer be a distinct social science. Despite these potential problems, however, it is still a distinct possibility that, if this trend of improvement in the practice of international law continues, the liberal idea of international law providing international order could still be realised.
It is important to note, however, that in a vast majority of cases the methods of enforcement described above are not needed because states voluntarily comply to most international law on the basis of the extensive national benefits this compliance entails. As Morgenthau (2006, p. 267) points out, ‘[m]ost rules of international law formulate in legal terms…identical or complementary interests’ and therefore they ‘generally enforce themselves’. This means that ‘the great majority of rules of international law are generally unaffected by the weakness of its system of enforcement [to which I shall turn next], for voluntary compliance prevents the problem of enforcement from arising altogether.’ This is the case, for example, with regard to many diplomatic rules and commerical treaties of financial benefit to the signatories. Unfortunately, though, this is not consistent across all situations and, as Morgenthau (2006, p. 268) concludes, in a ‘minority of important and generally spectacular cases’ where ‘compliance with international law and its enforcement have a direct bearing upon the relative power of the nations concerned’, the ‘problem of enforcement becomes acute’. In these cases, he writes, ‘considerations of power rather than of law determine compliance and enforcement.’
It is these ‘spectacular cases’ on which theorists on the opposing side of the question tend to primarily focus, and it is perhaps with justification given that these cases are far more catastrophic when they fail and subsequently have a more pervasive impact on international order (war being the key example of this). These theorists tend to be of a realist persuasion and thus hold, according to Armstrong et al. (2007, p. 79), five key principles: that states are the only significiant actors in world politics; that the international system is anarchic and fiercly competitive; that material factors (like military resources and the balance of power) matter far more than non-material factors (like norms, institutions and international law); that states are rational actors (in a world where rational action depends on self-help); and finally that a systemic approach should be taken by default when exploring questions of international relations. If Hedley Bull’s (1977, p. 65) three key aspects of international order (‘a sense of common interests in the elementary goals of social life; rules prescribing behaviour that sustains these goals; and institutions that help to make these rules effective’) are taken to be broadly comprehensive, the realist approach seems to provide very little ground on which these conditions could be fulfilled, and thus on which order could be provided.
First, Bull (1977, p. 66) dismisses the idea that can ever be a sense of common interests unless a specific end has been defined as the point towards which the common interest must aim. Therefore Bull sees it not only as unable to prescribe the behaviour of states, but still less as a critereon that is objective and able to distinguish between moral and immoral foreign policy, for example. That said, he does recognise (1977, p. 67) that it is at least possible that there could be a ‘development of common interests in the elementary goals of social life’ based around people’s fear of unrestricted violence and their desire for their country to remain secure and independent, among other things. Nonetheless, he does not see these factors as precise guidance as to what behaviour is consistent with these goals; this, he argues (1977, p. 67), ‘is the function of rules.’ By ‘rules’, Bull does not exclusively refer to international law, but also moral rules, custom, established practice, operational rules, and ‘rules of the game’. Even at this very early stage of rule formation there are clearly problems. In order for the rules to encompass a wide enough range of state interests for it to acceptably represent the ‘common interest’, they are necessarily vague and ambiguous (something seen notably in the Charter of the United Nations). Similarly, the Briand-Kellogg Pact of 1928 that aimed to renounce war as an instrument of foreign policy was extremely unclear and there was confusion over whether it was a law, a pact, or some other form of rule. As Morgenthau (2006, p. 261) damingly wrote, it is important to note ‘the weakness of a legal system that is incapable of giving a precise answer to so fundamental a question as to whether it forbids collective acts of violence for certain purposes.’ Clearly, then, the first two aspects of Bull’s three levels of international order do not give much hope for the development of international order based on international law. But it is the third level – that of institutions – which provides Bull and other realist thinkers with their strongest argument against the question.
Specifically, the decentralised nature of the international system of states as propounded by the realists stands in direct opposition to the centralised and global form of government that is necessarily required to facilitate the establishment and enforcement of international law. For one, the objective and mediating nature of the law is compromised by the inevitable distortion of rules in favour of particular states. In the decentralised sytem of international law, all states are likely to use their own legal advisors in order to twist the law (or even ignore it altogether) in whatever way happens to best suit their interests at the time, and this is made all the easier by the fact that the laws [as discussed earlier] are necessarily vague and ambiguous in order to accommodate the diverse array of state interests in the first place. This particularly leads to an abuse of international law by larger states and Great Powers where laws are violated and enforced in their favour simply because they do not have to fear effective sanctions levied by the smaller states. Conversely, when smaller nations wish to influence the system, their only option is to look to their more powerful allies for support on the international stage. In other words, international law is not enforced by a consideration of law-enforcing mechanisms but instead depends upon political considerations and the actual distribution of power in a particular case. As Morgenthau (2006, p. 267) notes, this idea that the rights of a weak nation that is threatened by a strong one are determined by the balance of power as it operates in that particular situation has been demonstrated by numerous historical cases. The rights of Belgium, for instance, were safeguarded in 1914 against their violation by Germany because the powerful interests of the states neighbouring Belgium depended upon it. Similarly, when the USA and some of its allies including the UK and France came to the aid of South Korea in 1950 it was not out of any particular desire to uphold international law but in order to maintain the balance of power in the Far East. On the other hand, the rights of Colombia, when the USA supported the 1903 revolution that led to the establishment of the Republic of Panama, and the rights of Finland, when it was attacked by the USSR in 1939 were violated with impunity because, as Morgenthau (2006, p. 267) puts it ‘[t]here was no balance of power which could have protected these nations.’
This influence of the balance of power is also noted by Bull (1977, p. 74) who writes that the activities ‘that go to make up ‘protection’ of the rules of coexistence are themselves the subject of further bodies of rules, such as those which regulate the balance of power, diplomacy, and the special position of great powers.’ He gives the example (1977, p. 89) of the prosecution of Nazis at the Nurenbourg trials, arguing that the fact the Nazis (the defeated) ‘were brought to trial by the victors was an accident of power politics.’ If the outcome of the war had not been as it was, clearly international ‘law’ would have been enforced in a very different way. It seems fair to argue, therefore, that all international law does is reflect the current balance of power. Mazrui (in Bull, 1977, p. 92) gives the persuasive example of the conflict between justice and aggression being overlooked by international law, writing that ‘international law condems aggression, but once aggression has been successful it ceases to be condemned.’ To make this worse, he suggests that there is no way out of this conflict because although the law ‘is at loggerheads with elementary justice’, if it were based upon justice as opposed to the realtime events occuring around the world ‘it would so lose contact with internal reality as to be unable to play any role at all.’
So strong is the influence of the balance of power on international order, according to realist theories at least, Bull (1977, p. 88) even goes so far as to argue that any suggestion that justice is reconcilable with international order is ‘inherently revolutionary’ because it is ‘to enter into conflict with the devices through which order is at present maintained.’ For example, given the dearth of effective centralised mechanisms capable of altering laws (especially in a short space of time), often the only way for countries to change laws is to disobey them in order to show they are no longer accepted. In other words, the lack of effective centralised governing institutions means that the only way to alter rules designed to promote order is through disorder.
This is just one of many contradicitions in international law. Even more significantly, there are many cases where international law not only passively contradicts itself, but actively serves to work against the maintenance of international order. In the case of preventive war, for example, international law declares it illegal because no injury has been done by one state to another. Under the balance of power system, on the other hand, the only way to maintain international order would be to attack the state which has become a threat to the balance of power even if no legal injuries have been exchanged. Similarly, there is a clash between the two sets of imperatives with regard to sanctions against aggressive wars. Bull (1977, p. 144) gives the example of the Italian invasion of Ethiopia where it was widely held by international lawyers that Italy had gone to war in disregard of its obligations under the Covenant of the League of Nations and that therefore Italy should be sanctioned. From the point of view of the international community looking to maintain the balance of power, however, sanctions would simply have had the effect of driving Italy further into the arms of Germany which would have put the efforts of Britain and France to maintain a balance in relation to Germany in jeopardy and thus threatened international order. In the same vein, intervention and the threat of force are prohibited (in most cirumstances) under the UN Charter but in many cases have played instrumental roles in maintaining the balance of power. The threat of force especially has been seen to play this role, most notably, perhaps, in the case of Mutually Assured Destruction between nuclear powers in the Cold War (and, indeed, to the present day). Finally, realists see human rights law that asserts human over state rights as subverting the system of sovereign states that maintains world order in favour of an idealistic cosmopolitian society. As Bull (1977, p. 153) puts it, ‘in our own times the international discussion of human rights and duties of international law is more a symptom of disorder than of order.’
Some would argue, though, that despite these violations and contradicitions, it is not true that international law has overtly failed because often violation takes place against a backdrop of conformity. For example, after the German invasion of Belgium in 1914 that violated the 1839 treaty that had neutralised it, they continued to respect other international laws and even based their international relations upon them. Furthermore, even in cases of blatant violation, states still attempt to demonstrate that they still consider themselves bound by international law. The Germans, for instance, attempted to justify their remilitarisation of the Rhineland in 1936 by arguing that the agreement prohibiting it had lapsed given that it had been violated by other parties and even that it was not valid in the first place. Similarly, the breaching of USSR air space by an American U2 plane in 1960 was justified by the USA as an act of ‘necessity’ in the ‘vital interests’ of the country, thus implying that it was an exceptional act. Theorists of this position also argue that even when international law has been specifially rejected, this has only been seen on a regional basis as opposed to the entire international system. This has been the case, for example, with regard to Bolshevik Russia and the laws of succession and in certain African and Asian states regarding the legitimacy of colonial sovereignty and foreign property rules. These arguments, however, often seem to assume that states have followed (or at least proclaimed to follow) international laws out of respect for them, but in reality there is no necessary relationship between the two. Bull (1977, pp. 139-40) gives three examples of how this could be the case. First, that states follow the ‘international law of community’ where they have some obligation to a wider set of values which are seen as an end in themselves. Second, that states could be subject to an ‘international law of power’ where they are coerced into obligation by some larger state bent on enforcing an agreement (this is seen, for example, in cases where vanquished states continue to accept the terms of peace treaties long after their defeat because they are too weak to challenge the arrangement). Finally, he argues that states may be following an ‘international law of reciprocity’ where it is in the mutual benefit of both states to continue respecting an agreement (for example, with regard to respect of sovereignty, the keeping of promises, and the law of war). Whilst it may be the case that violations of international law are sometimes compensated for by conformity, it is not clear that this conformity has any relation to international law itself, rather, it is actually based upon various forces outside legal juristiction.
Ultimately, then, it is clear that a number of variables can have a significant impact on the creation and maintenance of international order. In many cases, international law is the key provider of this order and it is generally the case that most states accept most laws most of the time. However, Morgenthau is correct in arguing that in a small number of crucial cases, international law is simply not strong enough to prevent a regression back to order based on the balance of power. Fundamentally, it seems that it is not international law that maintains international order, but rather international order than maintains international law.
Armstrong , D., Farrell, T. & Lambert, H., 2007. International Law and International Relations. Cambridge: Cambridge University Press.
Bull, H., 1977. The Anarchical Society. London: Macmillan.
Byers, M., 1999. Custom, power and the power of rules. Cambridge: Cambridge University Press .
Morgenthau, H., 2006. Politics Among Nations: the Struggle for Power and Peace. London: MacGrawHill .