International Law for International Relations Basak Cali Chapter 2 Perspectives on international law in international relations How does international relations (IR) scholarship perceive international law (IL)? o International law often appears to be relatively invisible in theories of IR. And thus students of IR may question the need to study international law. o Nonetheless, argues the author, IR engages implicitly, if not explicitly with IL In fact è IR scholarship which directly engages with international legal agreements and legally constituted institutions often approaches them through the language of norms, institutions, and regimes, rather than through the language of law. There are 5 paradigms or theoretical schools of thought in IR (è theoretical frameworks that guide intellectual inquiry by suggesting what subject matter should be focused on and how the subject matter should be approached and understood): 1. Realism 2. Liberalism 3. Institutionalism 4. Constructivism 5. Radical Approaches (Marxism, Feminism, and Critical Theory) Why studying these theoretical approaches? Because o Many objects of study in international relations are heavily legal in content, but are described using the language, terminology, and assumptions of IR theory. In order to understand the ways in which IR and IL address common concerns, it is important to become familiar with the different language and approaches used in the two disciplines. Let s see how these approaches view IL 1. Realism From classical realism we find an emphasis on how power and self-interest shape politics 1
bb From tbhis we thus find that the contours of international law and its effectiveness are a product of the interests of powerful states or the balance of power amongst states In other words the famous dictum proposed by Thucydides, 'The strong do what they can, and the weak suffer what they must.' 1.1 Actors Realists view states as the primary actors in the international system è states are treated as natural actors in world politics For Waltz and other realists è state behavior is best explained by the balance of power in the international system, as measured by material factors, such as size of territory and population, and the strength of the military and economy o è taken this way IL is relatively irrelevant This, however, creates an analytical problem for IR scholars è it makes it difficult to analyse developments in international organizations and international law in which states voluntarily comply with international law, give up aspects of their sovereignty, or share sovereignty with other actors. 1.2 Processes For realists the processes that occur within the IS are the results of states negotiating power relations (e.g., power balancing) as such: o the emergence of legal norms, rules, and institutions as being largely a product of the interest and influence of powerful states o international law and its application can be viewed as a form of victors' justice that reflects the interests of the powerful è mostly Western countries More specifically, realists see the emergence of IL resulting from: o the laws of war codified in the late nineteenth century represent the interests and views of the powerful Christian states o norms of decolonization and self-determination can be viewed as emerging out of the US challenge to the old order of European empires o the international legal order embedded in the United Nations can be viewed as a codification of both the power structure (membership of the UN Security Council) and normative commitments (liberal individualism as a focus of human rights law) that reflected US interests at the end of World War II. 2
What sorts of problems do you think may arise from this Western-centric body of IL? 2. Liberalism It is important to note that Liberal and institutionalist arguments in international relations (discussed in the next section below) are often intertwined, as liberal institutionalism, and have often been offered by the same IR scholars Liberal theory can be seen as the ideological opposite of realism For instance They disagree, first, that the structure of the international system (in other words, international anarchy or lack of world government, and the balance of power) is the primary determinant of state behaviour. Liberalism places more emphasis on: o the type of government and constitutional order that states have o on domestic politics o on civil society o on individual beliefs. o on the interests and preferences of actors and how preferences are aggregated and negotiated Another characteristic of the liberal paradigm is: 2.1 Actors o A central argument of liberal IR theory is that the nature of the domestic political and constitutional order matters for understanding state behaviour. Liberal and democratic states, on this logic, are more likely to comply with international law and to conduct their relations, at least with other liberal democratic states, in a legally ordered fashion Liberal IR scholars do not reject the importance of the state as an important actor in the IS è they don t believe that it is the only one o They in fact look at other domestic and international state and non-state actors Non-state actors are defined as follow: Non-state actors (NSA) are entities that participate or act in international relations. They are organizations with sufficient 3
power to influence and cause a change even though they do not belong to any established institution of a state. Examples are: Non-governmental organizations (NGOs) typically considered a part of civil society è these can be religious, political, or environmental groups Quakers and other religious sects are quite active in their international advocacy efforts. They have in part founded other non-state actors such as Amnesty International, Greenpeace, Human Rights Watch, Save the Children, and OXFAM. Multinational corporations (MNCs) for-profit organizations that operate in multiple sovereign states. The International Media Violent non-state actors Armed groups, including groups such as ISIS or criminal organizations, for example drug cartels. Transnational diaspora communities Ethnic or national communities that try to influence their original and current territories. Cities, Provinces and States State actors are defined as: a state actor is a person or organization who is acting on behalf of a governmental body. Intergovernmental Organizations, or IGOs are a type of state actors established by states, usually through a treaty. Examples of the most well-known IGOs are: the United Nations the International Atomic Energy Agency the International Monetary Fund the International Criminal Police Organization (Interpol) World Bank Group World Trade Organization It is important to note that NGOs are viewed by liberals as being part of a global civil society of non-state actors and interest groups that exists in parallel to the state system. 2.2 Processes For liberals the IS works differently and they might focus on how norms and rules emerge in domestic contexts (see above) and then spread to the international 4
sphere. Liberals, in contrast to realists, argue that states often comply with IL (e.g., IHL or International Humanitarian Law) for reasons beyond simple self-interest Liberals also tend to focus on the functional role played by international law o collective action o international regimes 3. Institutionalism This is a functionalist approach to the development of international law o It looks primarily at the rational actor è in this case the state: states create institutions out of self-interest in order to facilitate cooperation, to help them to achieve goals and aims which they could not do singly è focusing on è the rational self-interest of states 3.1 Actors For institutionalists, states are still key actors in the international system, but so too are the institutions which they create, which can come to have an autonomous agency of their own. The importance of institutions within the IS is the encouragement of greater levels of reciprocity, leading to higher levels of cooperation and stability Also important to point out is that many institutionalists will also argue that once created, institutions develop an identity and power of their own, constraining state behaviour even where states may wish to deviate from agreed rules 3.2 Processes Institutions are important for the working of the IS because they create stable expectations, facilitate cooperation and linkages, and help set standards of legitimate behaviour Individual and shared interests are at the core of international institutions (e.g., environmental protection) è long-term mutual engagement on issues, allowing them to develop patterns of reciprocity and stable expectations about the behaviour of other states 5
Thus the question must be asked: o Why do states comply with international norms and political agreements? o Why do states comply with international law? o The answers are found in a key argument that: even without coercion and central enforcement, legal rules and procedures can help shape the structure of international politics by creating incentives for rational self-interested states to engage in sustained cooperation with one another. 6