International Law as Ideology: Theorizing the Relationship between International Law and International Politics

Shirley V. Scott¹

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Theorization of the relationship of international law to the broader political system of which it is a sub-system is of relevance to scholars of international law and international relations. The dominant post-war paradigm in international relations has been realism,² which dismisses international law as being virtually irrelevant to matters of `high' politics.³ The process of international politics is accounted for by the concept of power and international law is regarded as having no intrinsic significance.⁴ The retention of a power-law dichotomy has effectively blocked moves towards a more sophisticated conceptualization of the significance of international law to international politics. It is understandable that, as a group, international lawyers have perceived little to be gained from dialogue with proponents of realism and have remained sheltered behind legal positivism. The two disciplines have for the most part remained comfortably disengaged on the subject.⁵ And yet, international legal theorists have increasingly recognized their need for greater understanding of the politics of international law⁶ and stand to gain much from a fresh theorization of the international law-international politics relationship that subsumes the power-law dichotomy. Such a theorization would offer a more meaningful basis for inter-disciplinary dialogue, the goal of which would be a theory of international politics capable of incorporating legal debate itself.

I. Realism and International Law

The characteristic feature of modern realism⁷ is its use of the power concept to explain the course of international politics. The primary unit of analysis is the State which is regarded as operating in an anarchical system dominated by conflict.⁸ Foreign policy decisions are based on a rational calculation as to how most effectively to enhance State power.⁹ Realism aligns international law with power in so far as international law is considered a tool at the disposal of the most powerful. Yet international law and power are also frequently contrasted.¹⁰ A realist perspective deems international law to have no significance in its own right and so seeks to ascertain why it is that States obey international law.

The realist portrayal of international law is 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. Franck has recounted, for example, how, when protecting vessels in the Persian 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 US ships in the region. The State Department had determined that interceptance of the ship would constitute search and seizure on the high seas which was illegal under universally recognized rules of law and neutrality.¹¹ Realism is also unable to explain the strong commitment of the Third World to international law. Third World States do not appear to consider the system inherently incapable of helping them redress their grievances but, rather, have attempted to use it for precisely that purpose.¹² The behaviour of international actors does not seem to bear out the realist assumption of the impotency of international law.

The corollary to realism within international law has been positivism. Positivist lawyers have concentrated on determining a body of `legal' rules but have paid scant regard to non-legal political considerations that might influence the implementation of such law.¹³ Legal positivism does not deny the law-power divide of realism. The difference is a moral one; legal positivists believe that law should be obeyed even if it is not.¹⁴ Positivists see their role as the determination of legally correct behaviour, a view based on an assumption of the possibility of a legal-illegal categorization of political behaviour.

Realism and positivism, as they have been presented here, are obviously ideal types. But even though most writers do not advance a position as extreme as either of these, the tenets of realist and positivist thought remain dominant in the literature. So long as `power' continues to play an explanatory role in international relations akin to that of causation in other disciplines,¹⁵ and yet its relationship to certain key aspects of international politics fails to be explicitly theorized, realist assumptions regarding the impotency of international law remain unassailed.¹⁶

Unable to dismiss the realist power-politics equation, but just as incapable of integrating international law into it, many writers opt for analyses which do not incorporate the power concept into the structure of the explanation. Emphasis is directed away from the significance or impact of international law to its political role or function.¹⁷ Bull, for example, explains the international law-international politics relationship in terms of three political functions fulfilled by international law: to identify the idea of a society of sovereign States, to state the basic rules of coexistence among States and international actors, and to help mobilize compliance with the rules of international society.¹⁸

Coplin offers a system-level functionalist analysis of international law, in which he examines international law

as it allocates legal competences among states, as it constrains the political behavior of states particularly when it comes to the use of force, as it aids in developing world public welfare and, finally, as a device for communicating and developing a consensus on the international system.¹⁹

Chayes stresses the inadequacy of the prevalent though simplistic image of decision-makers choosing between `obeying' and `disobeying' international law.²⁰ In his functionalist analysis of the role of international law in US decision-making during the Cuban missile crisis, Chayes approaches the issue in terms of three ways in which law might be thought to have affected the action adopted: law as a constraint on action, law as a basis of justification or legitimation for action, and law as providing organizational structures, procedures and forums.²¹ Also aware of the illusory nature of any clear law-non-law divide, Boyle proposes that a legal positivist approach be replaced with a graduated scale of legal to illegal options available to policy makers.²²

Perhaps the best known and most sophisticated functionalist approach is the policy-oriented framework of enquiry advanced by McDougal and associates.²³ McDougal downplays international law as rules in favour of law as `a comprehensive process of authoritative decision'. He seeks to place international law within the realm of social and political forces. Like other functionalist analyses this work is valuable in illuminating the inter-relationship of international law and international politics. But while it highlights the political nature of law, it nevertheless fails to account adequately for the widespread perception of international law as a coherent body of rules which States are bound to obey.²⁴

It appears that a theory of the international law-international politics relationship must be a political one, for even though there is an inter-relationship between international law and international politics, international law is a part of international politics in a way that is not true vice versa. In order to overcome the inadequacies of the current realist interpretation, any new theorical explanation must deal explicitly with the relationship of international law to broader structures of power.

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1 The University of Queensland, Australia.

2 Abbott, `Modern International Relations Theory: A Prospectus for International Lawyers', 14 Yale J. Int'l L. (1989) 338. Keohane refers to realism as an interpretive framework. See R.O. Keohane, Neorealism and its Critics (1986) 7; while Gilpin considers it to be a philosophical disposition. Gilpin, `The Richness of the Tradition of Political Realism', 38 International Organization (1984) 290.

3 F. Boyle, World Politics and International Law (1985) 6-7.

4 Boyle, `The Irrelevance of International Law: the Schism between International Law and International Politics', 10 Calif. West. Int'l L.J. (1980) 198.

5 See Abbott, supra note 1, at 336-338.

6 Regarding `philosophical', `humanistic' and `scientific' as three kinds of sophistication that have existed in international law, Macdonald and Johnston comment that the late twentieth century appears to be characterized by a new approach that strives for political sophistication. Macdonald and Johnston, `International Legal Theory: New Frontiers of the Discipline', in R.St.J. Macdonald and D.M. Johnston (eds), The Structure and Process of International Law: New Frontiers of the Discipline (1983) 4.

7 `Realism' is used to refer to a body of writing dating from Thucydides' The Pelonnesian War (c.400BC) but `modern realism' is generally used to refer to works from about Carr's The Twenty Years' Crisis, 1919-1939 (1939) on. Classic modern realist works include H. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (1949) and G. Schwarzenberger, Power Politics (1951).

8 Gilpin pointed to three assumptions regarding political life which he considered characteristic of realism. These were that international affairs are basically of a conflictual nature, that the essence of social reality is the group, and that power and security are the prime human motivators in all political life. Gilpin, supra note 1, at 290.

9 Keohane identifed a set of three realist assumptions: that States are the key units of action, that they seek power, either as an end in itself or as a means to other ends, and that they behave in ways that are by and large rational, and therefore comprehensible to outsiders in rational terms. Keohane, supra note 1, at 6.

10 For example, Keohane stated that: `The struggle with Nazism cast doubt on the efficacy of international law and emphasized the role of power in world politics.' Ibid., at 9.

11 T. Franck, The Power of Legitimacy Among Nations (1990) 3-4.

12 See, inter alia Anand, `Attitude of the Asian-African States toward Certain Problems of International Law', 15 ICLQ (1966) 5; Bull, `The Third World and International Society', 32 The Year Book of World Affairs (1979) 15; Levi, `Are Developing States More Equal than Others?', 32 The Year Book of World Affairs (1978) 286; Sinha, `Perspective of the Newly Independent States on the Binding Quality of International Law', 14 ICLQ (1965) 121; F.E. Snyder and S. Sathirathai (eds) Third World Attitudes Toward International Law (1987); and Tieya, `The Third World and International Law', in Macdonald and Johnston, supra note 5, at 955-976.

13 Boyle discusses the evolution and contemporary prevalence of legal positivism in Boyle, supra note 2. A number of international lawyers have commented on their colleagues' tendency to remain aloof from political issues. See, for example, Fisher, `International Law: A Toolbox for the Statesman', 9 Calif. West Int'l L.J. (1979) 472.

14 Boyle, supra note 2, at 59.

15 It is contended that causation is the essence of all definitions of power. Some scholars such as Robert Dahl and Jack Nagel have actually defined power as causation. See discussion in Baldwin, `Power Analysis and World Politics: New Trends versus Old Tendencies', 31 World Politics (1979) 161.

16 Bull, for example, postulates four reasons why States obey international law: habit or inertia, coincidence, coercion, and reciprocal agreement. Bull 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'. H. Bull, The Anarchical Society: A Study of Order in World Politics (1977) 139-140. 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, therefore underpin the interpretation offered by Bull.

17 See generally, Johnston, `Functionalism in the Theory of International Law', 26 Can. Y.B. Int'l L. (1988) 3 and M. Koskenniemi, From Apology to Utopia (1989) 4 at n. 6.

18 Bull, supra note 15, at 140-142.

19 W.D. Coplin, The Functions of International Law: An Introduction to the Role of International Law in the Contemporary World (1966) 25.

20 A. Chayes, The Cuban Missile Crisis (1974) 4.

21 Ibid., at 7.

22 Boyle, supra note 2, at 164-167.

23 See M.S. McDougal, Studies in World Public Order (1960); McDougal, `Some Basic Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry', 4 Journal of Conflict Resolution (1960) 337; McDougal, Lasswell and Reisman, `Theories about International Law: Prologue to a Configurative Jurisprudence', 8 Va. J. Int'l L. (1968) 188; and McDougal and Reisman, `International law in Policy-Oriented Perspective', in Macdonald and Johnston, supra note 5, at 103-129. See also Higgins, `Policy Considerations and the International Judicial Process', 17 ICLQ (1968) 58 and cf. Falk, `The Validity of the Incidents Genre', 12 Yale J. Int'l L. (1987) 376.

24 See discussion in Allott, `Language, Method and the Nature of International Law', 45 BYbIL (1971) 79 and Onuf, `International Legal Order as an Idea', 73 AJIL (1979) 250-252.

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