A rigorous understanding of the interactions between nation states[1] relies in large part upon knowledge of the norms and rules that describe, and some argue, constrain, their behaviour towards each other. This essay argues that international rules & norms (or “international law”) created by a multilateral process make sense of international relations. The current norms have developed over centuries and are continually being modified to suit the aims of the international community or individual states. Most important to contemporary international law are the principles of multilateralism and sovereignty; international law is usually considered instituted if it has the consensus of a large number of states. The realist theory of international relations argues that laws and norms in international politics are ineffectual and inconsequential, and the behaviour of states towards each other is explained purely in terms of a struggle for relative gains. Liberalism predicts that increasing interconnectedness and interdependence resulting from the creation of international political, economic and cultural institutions can enable absolute gains and mutual benefit. This essay will describe the nature of international law and the significant role it plays in state interactions, and thus how, by extension, an understanding of it is essential to a thorough analysis of international relations.
The rules regulating international relations fall into three major categories. Firstly, legislation of large international organisations (United Nations [UN], European Union [EU]), secondly, multilateral (as distinguished from bilateral) treaties and, finally, norms, or “customary law.” (Reus-Smit 2008, 283-4) Societies form for the protection of each participant from the insecurity of anarchy. (Hobbes [1651] 1985, 204-5) This liberal explanation of human society can be applied to international affairs. Under conditions of anarchy, individuals (states) trade some freedom for greater security under law. However, unlike individuals’ relations within states, international relations are not licensed and arbitrated by a greater authority, Thomas Hobbes’ “leviathan.” A community of states adopt laws which limit aggression and domestic interference. The mutual security derived from these agreements provides incentive for states to observe them. (Bull 2002, 13, 18) Norms develop in a subtler, more gradual way than the laws created by treaties and organisations. Often norms are taken for granted and the states that recognise these laws may impose them upon a non-consenting minority. For example, a state’s right to self defence was not codified until the League of Nations was formed but this right was already accepted by custom. The numbers of states for and against is the contemporary method of determining a law’s existence. Organisations like the UN officialise this system.
In previous eras states followed different norms to those in place today. If the relative power of states were as important as realist theories suggest, meaning that international laws and norms are negligible, then those types of interactions that have previously been the norm should still be observed. That this is not the case is demonstrable. The conqueror’s right to rule the conquered is not accepted as it once was, and as a consequence states are prevented from territorial aggrandisement by the opinion of their fellow states. Contemporary international law asserts the right of nations to self determination. Although influential, the word of a stronger nation is no longer considered binding upon weaker nations. Instead, binding international rules and norms are established by multilateral opinion. (Reus-Smit 2008, 288-89) The changing composition of international law suggests that it is effective at representing changing ideas which can overrule realist objectives.
Precisely what constitutes international law in addition to the questions of how and when enforcement is justified are constantly subject to debate. The ideal that multilateralism constitutes authority grew from nineteenth century liberalism in Europe and is now the dominant determinant of international law. Multilateralism is practiced when a number of states agree to cooperate for the purpose of creating “reciprocally binding rules of conduct.” (Reus-Smit 2008, 285) Customary law, or norms, are inter-state practices so widely accepted as to bear the force of law. An example is the law of the sea. (Reus-Smit 2008, 283) It is a fact of history that the laws and norms regulating inter-state relations have changed considerably over the centuries and continue to do so. An important change in the early twentieth century occurred when it became generally accepted that the consent of states to a law is the basis of the law’s legitimacy. (Reus-Smit 2008, 285) Before this development international law was believed to be founded upon absolute standards of divine origin.[2] Contemporary international law suffers from a problem of legitimacy stemming from this change in ideology. The debate concerns the right of the majority to impose its law upon a non-consenting state.
When international trade law is institutionalised the relations between states are profoundly affected. Consistent law is prerequisite to a secure environment conducive to trade. Individual companies lose their incentive to trade when contracts are not honoured. International law facilitates the exchange of goods, services and ideas. In its absence, (that is, under total anarchy) countries are more likely to resort to war as a means to secure resources. (Bull 2002, 5-6) This belief led the USA and Great Britain to assert in the Atlantic Charter of 1941 that all countries should have access through trade to the materials they needed to develop. (Principle 4) This principle is still recognised today. Internationally consistent law is necessary for the development of interconnected economies, the like of which exist throughout the world.
In the absence of a leviathan states do not behave as if there were no laws binding them. Because the nature of international laws and norms is to evolve to match changing attitudes, interpreting them can be difficult. The lack of an effective international tribunal to resolve disputes further supports the claim that international law is impotent. The consensus among nations has manifestly failed to prevent states and coalitions of states from behaving in certain ways, but it has also served to prevent some violations and tempered others. The 2003 invasion of Iraq by a coalition defied the international law created by the Charter of the UN. The charter requires that all wars not fought in self defence must be authorised by the UN Security Council. (Taylor and Curtis 2008, 323) The states involved went to elaborate lengths to justify the invasion, using norms and treaties that they considered superior to the law established by the UN. (Taylor and Curtis 2008, 327) On the occasion that a rule or norm is broken, the offending party attempts to justify its actions, usually by alleging the broken law is overruled by a superior law. The importance of international law to international relations is manifested by the concern shown by states to at least appear to be following it.
An international norm which is increasingly accepted justifies breaching a non-consenting state’s sovereignty on humanitarian grounds, it is an uncomfortable reality for realists that a great deal of public interest and political debate exists over the allegedly unimportant issue of legality. (Bellamy and Wheeler 2008, 524-26) Realist ideology holds that the issue central to inter-state affairs is the relative strength and weakness of states economically and militarily, and their varying wealth in resources and land. (Mearsheimer 2001, 30-31) A problematic example for this theory is that of Britain in the lead up to the Iraq war. Prime Minister Tony Blair and his government were faced with the challenge of justifying a war to an unconvinced electorate and they made use of international law to do so. Domestic and international opponents to the war also justified their stance by appealing to international law. Although, given that there is no supranational arbiter of such disputes, no party has been vindicated, it is fair to say that proponents of, and adherents to both positions considered that international law was the highest authority to appeal to and that the legality of the conflict was a central concern. (Sands 2005, 1-2) This case and others are indicative of a recent extension to international law, an extension that deals with justice among and within states and not merely order. (Reus-Smit 2008, 287) Humanitarian grounds for intervention in a state’s domestic affairs are not universally accepted, but it has been an increasingly prevalent norm of international relations over the past two decades.
International law has been agreed upon by states with the intention of protecting themselves from the insecurity of anarchy. Contrary to realist ideology, states agree to behavioural codes and reciprocal treaties in the pursuit of more secure and regulated interactions. Organisations, treaties and custom are all responsible for the present body of law that inhibits unilateral state behaviour and regulates international affairs. For the benefit of all states, similar or identical trade rules are broadly accepted. International rules have a significant effect upon the international relations of states.
Works Cited
The Atlantic Charter. 1941.
Bellamy, Alex J, and Nicholas J. Wheeler. “Humanitarian Intervention in World Politics.” Chap. 30 in The Globalization of World Politics, edited by Steve Smith, John Baylis and Patricia Owens, 522-39. Oxford: Oxford University Press, 2008.
Bull, Hedley. Anarchical Society: A Study of Order in World Politics. Columbia University Press, 2002.
Burnside, Julian. Watching Brief: Reflections on Human Rights, Law, and Justice. Carlton North: Scribe Publications, 2007.
Chomsky, Noam. Rogue States: The Rule of Force in World Affairs. London: Pluto Press, 2000.
Hamilton-Hart, M. “Internationalisation: What Scholars Make of It.” Australian National University. 1999. http://rspas.anu.edu.au/ir/pubs/work_papers/99-5.pdf (accessed October 2009).
Hobbes, Thomas. Leviathan. Camberwell: Penguin Books, [1651] 1985.
Machiavelli, Niccolo. The Prince. Translated by George Bull. Camberwell: Penguin Books, [1532] 2003.
The Fog of War. Directed by Errol Morris. Performed by Robert S. McNamara. 2003.
Mearsheimer, John. “Anarchy and the Struggle for Power.” Chap. 2 in The Tragedy of Great Power Politics, 29-54. New York, 2001.
Reus-Smit, Christian. “International Law.” Chap. 16 in The Globalization of World Politics, edited by John Baylis, Steve Smith and Patricia Owens, 278-94. Oxford: Oxford University Press, 2008.
Sands, Philippe. Lawless World: America and the Making and Breaking of Global Rules. Camberwell: Penguin Group (Australia), 2005.
Taylor, Paul, and Devon Curtis. “The United Nations.” Chap. 18 in The Globalization of World Politics, 312-28. Oxford: Oxford University Press, 2008.
Van Creveld, Martin. Nuclear Proliferation and the Future of Conflict. New York: The Free Press, 1993.
[1] In this essay the terms “state” and “nation” are interchangeable.
[2] (Van Creveld 1993, 6) (Hobbes [1651] 1985, 332-34)
[This essay was submitted in October 2009.]
