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CRITIQUE OF UNDERSTANDING OF INTERNATIONAL LAW IN REALIST THEORIES

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INTRODUCTION

International law as set of norms governing relations between states emerged as an inevitable consequence of creation of first states, but theories attempting to comprehend the nature of these rules havent been elaborated until mid-17th century. Since that time international law provided food for thought for many generations of lawyers and philosophers as evidenced by multiplicity of theories and schools dealing with the nature and authority behind rules of international law. Major events in the World history led to questioning basic precepts and thus have influenced the theories in one way or another sometimes even up to the denial of any force of or even the existence of international law. In examination of those theoretical approaches it can easily be observed that none of the theories of international law is perfect in a sense that they fail to give exhaustive and convincing answer to the question as what is the nature of international law and where does it derive its legitimacy from, and in some cases they even are unable to avoid being hypocritical. Thus critiques of theories sometimes gave raise to opposing systems creating pool of theoretical approaches which provide ground for deliberation to many international scholars.

Realist theories were shaped as critiques of existing international legal approaches, namely as an opposition to positivist doctrine which formed the mainstream in the study of
international law during the twentieth century.1 For realists, unlike positivists, international law is not an objective in itself; rather it is a mechanism to achieve their interests. According

to realist theorists, positivism disregarded important social and economic factors which played into the creation and subsequently application of international law. Hans Morgenthau is considered both the founder of the modern discipline of International Relations and the founding partner of its Realist branch of international law.2 Realism, as opposed to other Idealist theories of international law, claims reflecting objective reality. International law as it was understood by positivism proved to be remote from reality of international relations and because of obvious deficiencies3 lacked the capacity to fulfil functions that normal legal system is required to fulfil, which is of regulating relations, and accordingly conflicts arising in the society as a expression of desire to dominate rooted unchanging human nature,4 applying mandatory legislative, adjudicatory and enforcement powers. Thus Realist theories of international law emerged as advocating an improvement of international law from its dominating legal positivist

Yasuaki, Onuma. International Law In and With International Politics: The Functions of International Law in International Society 14 European Journal of International Law (2003) 110 Alejandro Lorite Escorihuela, Alf Ross: Towards A Realist Critique And Reconstruction Of International Law 14 European Journal of International Law (2003) 742 Deficiencies of international law as they have been seen by Morgenthau were Coordinated rather then subordinated nature which, understandably, was problematic for creation as well enforcement of particular norms, as absence of effective enforcing mechanism made enforcement dependant on the interests of powerful states. Decentralisation resulted in ambiguous formulation of norms thus enabling states to interpret the rules as fitting their interest.

Hans Morgenthau, Politics Among Nations (New York: 1967, 1st ed.) 31 (Hereinafter cited as Morgenthau, Politics Among Nations)

outlook towards an embrace of realism:5 the science of international law is now confronted with the alternative of maintaining the traditional pattern of assumptions, concepts and devices in spite of the teachings of history, or of revising this pattern and trying to reconcile the science of international law and its subject-matter, that is, the rules of international law as they are actually applied.6 Basic contention of realist legal scholars was that international law is created as and agreement or concurrence of state interests, thus it is not self sufficient and retains its validity only as long as it is within states interests to adhere to a particular rule. Ergo norms of international law need only be interpreted bearing in mind those social forces that determined their creation. As expected realist theories have as well been criticised and rightly so; criticism arouse on various levels and gave birth to multiple schools (e.g. Policy School, Critical Legal Studies,) representing Realist school from various different points. One of the criticisms was raised by the Representatives of Marxist School, stemming from the works of Bhupinder Singh Chimni. As Chimni in his book dedicated to critiques of various theories prevailing in the international legal sphere International Law and World Order: A Critique of Contemporary Approaches, states Realism[fails]to understand that a concern for international law is not necessarily opposed to the concern for national interest. This misperception is a function of ignoring the partisan dimension of law, i.e. the reality that the more

5 6

Supra note 2, 744

Hans Morgenthau, Positivism, Functionalism and international law 34 American Journal of International Law (1940) 261 (Hereinafter cited as Morgenthau, Positivism, Functionalism and International law)

powerful states are able to write their interests into the law. Law is a means both to legitimise and augment power as well as to secure interests.7
REALIST THEORIES EVOLUTION AND BACKGROUND

Realist theories of international law emanated during after the Second World War criticising international law as legalistic and moralistic.8 According to Chimni, the bible of realism9 which was created by the founder of realist approach to international law relied on the frustration due to events leading to and taking place during Second World War. After First World War international Community was laying all its hopes for future peace and prosperity on the League of Nations10. This document contained provisions regulating resort to war11 and was the source of optimism for drafters and international scholarly circles. It is true that evolution of realist theories coincided, or rather was (partly) conditioned by the World War II, but it can be argued that even if World War II had not happened at the given point in history or had not happened at all, realist theories would still find fertile ground for criticising existing legal system as ineffective. The national interests defied in terms of power the weakness of international morality, the decentralized character of international law, the deceptiveness of ideology, the inner contradictions of international organization, the democratic control of foreign policy, the requirements of diplomacy, the problem of war are the phenomena and

Bhupinder Singh Chimni, International Law and World Order: A Critique of Contemporary Approaches (hereinafter cited as Chimni) (New Delhi: Sage Publications India Pvt Ltd) (1993) 46
8

Flack, Richard A, New Approaches to the Study of International Law 61 American Journal of International Law (1967) 479 Chimni, 23 Josef L. Kunz, The Changing Law of Nations (Ohaio, 1968) 127 as cited in Chimni, at 23

10 11

Covenant of the League of Nations, As found on http://www.yale.edu/lawweb/avalon/leagcov.htm (last visited 2 May 2006), Preamble and Articles11-17

problems which reveal themselves on international scene and which international policies must take into consideration12 since international law proved to be unable to regulate those. Sixty years passed since the Second World War and despite seriously unstable nature and tension among major political blocks on international arena no World War III happened so far, realist approach still remains among influential philosophies.13 According to Chimni Cold War created conditions for successful application of Morgenthaus theories in the foreign policies of some states.14 This could hardly be argued with, but this proposition proves that realism is not solely child of invalidation of the rules of international law by World War II, neither is Cold War. The tension between capitalist west and communist east was much older then the WWII and if the latter had not been initiated by Germany it seems quite possible that confrontation between major political blocks could as well have had taken rather violent turn. The question then arises what prevented this to happen after the World War II? This could point to the effectiveness of subsequently created international legal system or authority on the part of United Nations, but one should not overestimate the role that UN or international law played in prevention of obvious military confrontations between confronted blocks. The system of checks and balances15 established subsequent to World War II had very little to do with the prohibition of use or threat of force contained in the UN charter.16 It is

12 13

Hans Morgenthau, Dilemmas of Policies (Chicago, 1958) at 224-225 as cited in Chimni, 27

The Political Realism is the most widely taught approach to international affairs. It remains one of the most influential in the developing countries Chimni, 25
14 15

Chimni, 25

See in general Kenneth N. Waltz, Structural Realism after the Cold War 25 International Security, (2000) 5; Wohlforth, William C. Reality Check: Revising Theories of International Politics In response to the End of Cold War 4 World Politics (1998) 650; Almond, Gabriel A. Political Theory and Political Science 4 American Political Science Review (1966) 869
16

Article 2.4, Charter of the United Nations

more realistic to seek reasons in the interests of states representing one block or another. Thus, above analysis intends to prove that even though Realism was the child of Second World War, it could as well have found basis for subsistence even if the war did not happen.
BASIC CONCEPTS OF REALISM AND THEIR CRITIQUES

In his book Politics Among Nations17 Hans Morgenthau entered into debunking of international law, among other thing, enumerating six principles of political realism and certainly demonstrated the limitations of international law as a binding norm.18 Morgenthau defines international politics as a struggle for power giving international law the role of limiting this struggle. From this perspective rules are superimposed upon that struggle by the will of the members of international society themselves. In this point Morgenthau seems to be self-contradicting: if international law is intended to restrain struggle for power which is in the interests of states, then it cannot at the same time be the result of coincidence of state interests and neither the ready made tool for furthering state interests.19 In on other of his works Morgenthau attributed existence of international law to identical or complementary interests of states backed by power, or where identical interests do not exist, to a mere balance of power which prevents a state from breaking these rules of international law. Interests of state is a varying concept and states either try to adapt themselves to changes in balance of power or transformations of interests of more powerful states or to maintain status quo in international society. The

17 18

Morgenthau, Politics Among Nations 267

Yasuaki, Onuma. International Law In and With International Politics: The Functions of International Law in International Society 14 European Journal of International Law (2003) 111
19

Morgenthau, Politics Among Nations 269

rules of international law are exposed to continuous change and are more or less uncertain.20 Changes in social forces will necessarily be reflected in changes of existing legal system. Here a competitive contest of power will determine the victorious social forces, and the change of the existing legal order will be decided, not through a legal procedure provided for by the same legal order, but through a conflagration of conflicting social forces which challenge the legal order as a whole.21 The states could, in principle,
reject the creation of international law, if they regarded it as incompatible with their vital interests. The very fact that most states have under such an assumption referred to

international law and have continued to behave generally in accordance with international law demonstrates the falsehood of the argument that international law is meaningless or irrelevant in international relations.22 According to Onuma realists understood factors inducing state compliance with a rule of international law to include: (1) the extent to which the rule in question embodies interests of states with various powers, including military, economic, diplomatic powers, and the power of occupying a majority in international society; (2) the extent to which the rule embodies values which are regarded as important by states and people in general in international society; (3) the extent to which the creation and application of the rule is regarded by members in international society as legitimate in terms of procedure and substance; (4) the extent to which institutions realizing the rule are well established and actually functioning23

20 21 22

Hans Morgenthau, Positivism, Functionalism and International Law 279 Ibid, 275

Yasuaki, Onuma. International Law In and With International Politics: The Functions of International Law in International Society 14 European Journal of International Law (2003) 123
23

Ibid, 115

In the foregoing passage it seems that certain weight is ascribed to international law. But again this authority flows from free interplay of political and military forcesWhere there is neither community of interests nor balance of power, there is no international law; there is no avoiding the essential relationship between international law and politics.24 Hans Morgenthau challenges the positivist approach towards the validity of rules of international law as deprived of logical grounding. He states that mere enactment of a rule in a document does not guarantee its validity, since there are rules of international law which are valid although not enacted in legal instruments, and there are rules of international law which are not valid although enacted in [such] instruments. In Morgenthaus opinion key to the validity of the rule, be it legal, moral or conventional, is the possibility of its violation to be followed by an unfavourable reaction, that is, a sanction against the violator.25 Hence rules are valid as long as there exists either balance of power between beneficiaries of the rule or there are identical or complementary interests on the part of states, otherwise rules must be enforceable and if their violation does not entail any kind of unfavourable action on the part of violator, rules are not valid. At the same time, there must be a state interest in enforcing the rule. If the state beneficiary of the rule does not have interest and power to keep the rule enforceable, thus valid, the rule loses its power. If a nation violates an important rule of international law,
major powers which are interested in maintaining the interest that the rule is supposed to protect or whose direct interest is violated will generally seek to deprive at least some interests of this law-violating nation; the negative response against the violation of a rule of international law basically depends on a discretionary policy decision of the government
R. Higgins Integrations of Authority and Control: Trends in the Literature of International Law and International Relations in M. W. Reisman and B. H. Weston (eds.), towards world order and human dignity: essays in honour of Myres S.McDougal (New York: Oxford University Press) (1976) 77
25 24

Hans Morgenthau, Positivism, Functionalism and International Law 276

which believes that its nation's interest is violated.26 Preceding paragraph explains why many instances violations of international law are overlooked and no reaction whatsoever is expressed. This is because reaction to this particular violation is not in the interests of powerful states or when a superpower violates international law. But this is an exceptional luxury which only a few major powers especially the US the only superpower can enjoy.27 Thus state complies with its international obligations as long as they yield to

national interests28 be it expectation of certain benefit or fear that those states interested in the preservation of status quo will resort to unfavourable treatment which certainly is not in the interests of state. While basing the whole theory of international on changing interests of states Realists admit the existence of spheres of international law (rules related to diplomatic privileges, territorial jurisdiction, extradition, wide field of maritime law and so forth) which are stable this stability being attributed to stable thus unchanging interests rather then well established rules. This is the classical field of international law as it gradually developed into practice of states since the sixteenth century.29 Morgenthau contends that nonpolitical international law originating in states permanent interests is different from another type of international law which expresses temporary interests.

Yasuaki Onuma International Law In and With International Politics: The Functions of International Law in International Society 14 European Journal of International Law (2003) 119
27 28 29

26

Ibid, 121 Hans Morgenthau, In Defence of National Interests (New York, 1981) 144 Hans Morgenthau, Positivism, Functionalism and International Law 279

A number of scholars, such as John Austin, have argued that international law is not law properly so called.30 It should be noted that Morgenthau never totally denied the significance of international law.31 Acknowledgement of existence of international law is

not tantamount to asserting that it is as effective as national legal systems. In fact it is characterized as primitive law because it is almost completely decentralized.32 Decentralized nature, absence or ineffectiveness of existing enforcement mechanisms (since, as noted above, the enforcement is dependant upon changing notion of national interests and does not directly flow from the existence of international obligations) are attributes that make international law resemble the kind of law that prevails in preliterate societies. International law, whether in practice or in theory, has been referred to, treated, discussed, negotiated, promulgated, implemented and violated not as part of morality, ethics or politics, but as law.33 Taking national society as an example, an attempt has been made to replace might by law, without, however, realizing that the law between states (that is, international law) belongs to a category different from that of national law.34

J. Austin, The Province of Jurisprudence Determined (Weidenfeld and Nicolson ed., 1954, reprint, 1998) 127, 140-142 as cited in Yasuaki, Onuma. International Law In and With International Politics: The Functions of International Law in International Society 14 European Journal of International Law (2003) 123 Yasuaki, Onuma. International Law In and With International Politics: The Functions of International Law in International Society 14 European Journal of International Law (2003) 112
32 33 34 31

30

Morgenthau, Politics Among Nations, 265 supra note 31 (2003)

Alejandro Lorite Escorihuela, Alf Ross: Towards A Realist Critique And Reconstruction Of International Law 14 European Journal of International Law (2003) 742

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A modicum of realism suggests that rules can be manipulated.35 Even the rules agreed upon are vague and ambiguous thus even the states that in one way or another acknowledged them as binding upon them are able to read their own national interests into them.36 The Precepts of International law need not only be interpreted in the light of idealswhich are at their basis. They need also be seen within the sociological context of economic interests, social tensions, and aspirations for power, which are the motivating forces in the international field.37 The only meaningful manner in which a states foreign policy can be understood, and its national interests determined, is by taking cognisance of the particular socio economic system over which it presides.38 Even where the reference to the underlying economic and social forces and relations is not always explicit the sociological context is nevertheless always referred to by implementation. Norms are uncertain and the rights and duties established by them are subject to the most contradictory interpretations.39 States which are primary legislators as well as implementers of the norms created by them will naturally marshal them to the support of their particular international policies and will thus destroy whatever restraining power, applicable to all, these rules of international law, despite their vagueness and ambiguity, might have possessed.40 Although noting that the positivists disregard of changing political interests of states is disadvantage of the system, he asserts that it is up to the functional theory to systematically develop concepts and methods (emphasis added)

Flack, Richard A, New Approaches to the Study of International Law 61 American Journal of International Law (1967) 478; Chimni, 26
36 37 38 39 40

35

Morgenthau, Politics Among Nations, 269 Morgenthau, Positivism, Functionalism and International Law 269 Chimni, 41 Suprra note 37 279 Hans Morgenthau, Positivism, Functionalism and International Law 270

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capable of conveying legal characteristics, as well as the functional dependence on political factors, of political international law.41 This appeal can be understood as pointing toward standardisation of international law which is peculiar to positivism and which could hardly be compatible with national interest as constantly evolving.

CONCLUSION

Realism remains one of the most influential schools in international relations. It influenced contemporary international legal scholarly opinion and even at continues to reappear in various forms; Critical Legal Studies is considered to be influenced by the Realist movement of the 1930s.42 Emphasis on national interests made it attractive foreign relations strategy and explains its popularity.43 On the other hand, as noted above this theory generated equal amount of criticism. According to Chimni, realists, while acknowledging existence of international law as a system of binding legal rules but they do not consider it effective in regulating struggle for power on the international scene.44 Considering international law as norms superimposed to regulate this struggle by and in the interests of the members of the international society themselves seems to be contradictory to the assertion that international law is expression of the concurring state interests, since all that matters in international politics is the power of a state. Seeking motivations for actions of members of international society solely in their political interests resembles positivist disregard of everything that is not written or otherwise
41 42

Ibid, 280

White, G. Edward, From Realism to Critical Legal Studies: A Truncated Intellectual History 40 Southwestern Law Journal (1986) 820
43 44

Chimni, 26 Hans Morgenthau, Politics among Nations, 25

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contained in the norms of international law, since whether in practice or in theory, has been referred to, treated, discussed, negotiated, promulgated, implemented and violated not as part of morality, ethics or politics, but as law.45 Chimni seems to be sharing the opinion that if international law is the concurring interests of states and if in the absence of such concurrence powerful states prevail, then international law is expression of power of state as powerful states are able to write their interests46 into the rules of international law. To oppose law to power is fundamental fallacy as conjunction of the two is recognized since the former has to be backed up by sanctions.47 At this point Chimni seems more realistic then realists themselves. The above noted seeming incoherence in realist approach to international law could be attributed to Morgenthaus education as a lawyer as opposed to his experience of witnessing failure and constant disregard of international law in his practice: he intuitively perceives law as regulatory of conflicts within the society but observes that it is unable to guarantee compliance. In my opinion this contradiction must be understood as a showing realist view of what they perceive as being and what they think should be: International law is the expression of state interests but it should regulate their struggle for power and do it effectively. Realists believed this to be in the interests of members of international society as they feared to be suppressed by powerful states if certain rules for power play did not exist. After all, realism was a call for adaptation of international law to lessons learned from history as there was a need to make the rules of international law to reconcilable with the situations where they are actually applied.48

45 46 47 48

supra note 31, 122 Supra note 7 Chimni, 36 Supra notes 5 and 6

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