International Law and International Relations

Thomas J. Biersteker, Peter J. Spiro, Chandra Lekha Sriram, Veronica I. Raffo, Thomas J. Biersteker, Peter J. Spiro, Chandra Lekha Sriram, Veronica I. Raffo

• Publisher: Routledge
• Year: 2006
• ISBN:
  9781134145775
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire de l'armée et de la marine

This unique volume examines the opportunities for, and initiates work in, interdisciplinary research between the fields of international law and international relations;disciplines that have engaged little with one another since the Second World War.

Written by leading experts in the fields of international law and international relations, it argues that such interdisciplinary research is central to the creation of a knowledge base among IR scholars and lawyers for the effective analysis and governance of macro and micro phenomena.

International law is at the heart of international relations, but due to challenges of codification and enforceability, its apparent impact has been predominantly limited to commercial and civil arrangements. International lawyers have been saying for years that 'law matters' in international affairs and now current events are proving them right.

International Law and International Relations makes a powerful contribution to the theory and practice of global security by initiating a research agenda, building an empirical base and offering a multidisciplinary approach that provides concrete answers to real-world problems of governance.

This book will be of great interest to all students of international law, international relations and governance.

1
Introduction

International law and international politics — old divides, new developments

Veronica Raffo, Chandra Lekha Sriram, Peter Spiro, and Thomas Biersteker

Introduction: law and politics after the Cold War

Since the end of the Cold War, the international political terrain has altered significantly. We no longer live in a world of discrete national communities, but rather in a world of increasing economic, political, and cultural interdependence, where the trajectories of countries are heavily enmeshed with each other, and where the very nature of everyday processes links people together across borders in multiple ways. Globalization, understood as a multidimensional phenomenon, has put pressure on polities everywhere, gradually circumscribing and delimiting political power.¹ The operation of these transnational social forces has had a profound effect on both the functioning and the conceptualization of international law and international politics.

The end of the Cold War heralded the end of a bipolar world in which law was subjugated to the imperatives of superpower spheres of influence. Pressures from below, such as from nongovernmental organizations (NGOs), and “global civil society,” have brought the rights agenda to the fore, calling into question the absolute and unfettered sovereignty of the nation-state over its citizens.² With the perceived transformation of state sovereignty as the basis for power politics, the structure of international relations has changed: issues that transcend or disrupt traditional state interests, such as arms flows, human rights, terrorism, migration and displacement of populations, international finance, and the increasingly legalized nature of relations at the multilateral level, have risen to prominence. In this process, international law has increasingly embraced a broader variety of actors, overturning the exclusive position of the state and buttressing the role of suprastate, substate, and nonstate actors.

To study these emerging governance phenomena and questions of codification and enforceability of international law, new approaches to research are needed that can link macrosystemic-level analysis with detailed fieldwork. Locating the nexus of different types of authority and power, and then further analyzing the drivers of social and legal processes within a web of overlapping political and legal jurisdictions, is a task that requires a multidisciplinary approach.

We intend this volume as an initial effort toward building such a knowledge base, and seek to contribute to a deeper understanding of how international law can be adapted to today’s security challenges. The contributors not only examine the opportunities for interdisciplinary collaboration between the fields of international law (IL) and international relations (IR), but also initiate a research agenda, build an empirical base, and offer a multidisciplinary approach designed to provide concrete answers to real-world problems of governance, engaging both the theory and the practice of global security.

Genesis of the project

In July 2001 the Global Security and Cooperation program of the Social Science Research Council (SSRC) convened highly recognized scholars in IR and IL for a planning meeting for a new research project.³ This SSRC initiative was aimed at forging collaboration between the fields of international law and international relations, both in theory and in practice, in order to address contemporary global security challenges. The project concentrated upon three central questions: (1) To what extent are international norms manifested through law? (2) In what ways can methodological and theoretical collaboration between the fields of IR and IL be fostered? (3) In what ways can social science research be mobilized effectively to enhance our knowledge about the utility of international norms through law?

The project drew on the expertise of a core group of scholars,⁴ who chose a case-study approach to go beyond abstract meta-theoretical discussion of the relationship between IL and IR and concentrate on fresh approaches to urgent problems of international security and governance. The goal was the production of new knowledge as well as bridging the gap between relevant scholars and on-the-ground practitioners in a systematic and innovative way. The core group also identified several policy challenges crucial to the achievement of a sustainable global peace, challenges that require new research and new ways of applying research and scholarship. The four policy areas selected by the group were small arms and light weapons (workshop held in February 2002), terrorism (workshop held in November 2002), internally displaced persons (IDPs) (workshop held in June 2003), and international criminal accountability (workshop held in November 2003). This volume is organized into distinct sections that engage these specific policy challenges, in the order in which the workshops devoted to them occurred.

The purpose of the workshops was to examine these policy problems through the lenses of different legal and social science methods in order to illuminate how law and political processes intersect to influence the possibilities for international cooperation. By examining specific challenges in international politics through crosscutting theoretical frames, this project sought first to generalize about the cases and contribute to theory-building on the structure and efficacy of international mechanisms for regulating transnational governance issues; and second, to apply these theoretical insights in the service of case-specific policy problems and provide practitioners with empirical research on which to base negotiations or advocacy efforts. The workshops thus were aimed at clarifying the variables at play in each case in order to assist those practitioners who are committed to enhancing global security by the application of norms through law. The evidence of the politico-legal process at work in international affairs contributed, simultaneously, to an ongoing examination of the theoretical and methodological habits of the scholarly disciplines of law and international relations.

In order to foster greater interaction between practitioner experience and more theoretical approaches, the workshops were structured in such a way that each panel would feature practitioners (including policymakers working for governmental agencies as well as international organizations, and also NGO activists) and scholars from different disciplines.

In discussions at the workshops, the advantage of approaching these policy problems from the intersection of IL and IR became evident. On the one hand, IL as a discipline has suffered from overreliance on legal cases involving states without paying due attention to case studies (a new method for IL) rather than cases seeking adjudication, or without paying due attention to nonstate actors, who are increasingly the greatest perpetrators and victims of violence and conflict. On the other hand, IR has focused mainly on power and state-to-state relations, leaving out considerations of justice, nonstate actors, sustainable peace, international crime, and violence and its means. When these considerations cross international borders, as they increasingly do, neither traditional IR nor IL – taken alone – is sufficient.

This volume is intended to bridge the analytic and methodological shortcomings of both fields while also drawing on their respective strengths. Through case studies concerning some of the most pressing problems facing the world today, the distinguished contributors to this volume seek to ground discussions of norms, justice, peace, violence, and conflict in relation to the real world and thereby move beyond the existing limits of both disciplines.

International law and international relations: defining the gap, bridging the gap

The fields of international law and international relations have become increasingly intertwined in recent years, beginning to reverse a long tradition of viewing them as separate arenas. For several decades, this tradition was reinforced by the development of the academic disciplines of both international relations and international law.⁵

The dominance of the realist, and later, neorealist school of thought in international relations in the post-World War II era was perhaps the most significant reason for the divide between international law and international relations, as the realist school tended to promote the argument that law was largely derivative of international power politics. Political realists argued that law was epiphenomenal in the international sphere, and that it was generally ignored when contrary to state interests; it was a tool of the strong used to impose constraints on the weak, or something that states agreed to abide by only as long as it supported their own interests — and happily violated when it ceased to do so. This built upon the realists’ traditional claims that the international system is one of anarchy, that the primary units are states, and that states pursue self-interest and survival.

Surely, the realists argued, it was clear that law could not constrain the external behavior of nations in any serious way; only the use of force was respected. If realists were correct that states were rational, unitary actors concerned with their own survival, then they would be loath to enter into agreements that in any way constrained their ability to act. Even if they were to make such agreements, they would do so only when it was in their own interest, and would feel quite free to abrogate them should their interests change. Law, and by extension international institutions, were therefore ineffectual and “epiphenomenal.”⁶ Major international law texts were dropped from the required reading lists for international relations students in leading research-oriented departments.

The skepticism of realism was compounded by skepticism from within legal or jurisprudential study, specifically by positivists who, following a tradition deriving from John Austin, argued that international law could not properly be law because it lacked the requisites. The positivists argued that as sovereign states were the highest authority in global society, it was by definition impossible to place limitations or authorities above them. As a result, international law could not function like domestic law: there might be some elements of international law that resembled domestic law, such as primary and secondary rules, and even adjudicatory bodies, but there was no apparatus for enforcement, no global police force.⁷

Of course, these challenges did not go unanswered, and there are a host of arguments that have been put forward for the role and relevance of law in contemporary international politics. Arguments for bridging the gap between international law and international relations have grown since the late 1980s and early 1990s. Further, the divide was less pronounced in the United Kingdom, where the importance of law in international relations was emphasized by adherents of the “English School.”⁸ At the same time, some groups of IR scholars – liberal institutionalists, social constructivists, and those who discuss legalization in international life – have begun to move past debates about the relevance or status of international law, to queries or arguments about how it functions in international life.

While the IR–IL divide was not just a peculiarly American phenomenon, it was most visible in the United States. Scholars of the English School embraced the role of law, rules, and norms in international society, often proudly proclaiming themselves to be working in a “Grotian tradition,” referring to Hugo Grotius, a seventeenth-century scholar who is often referred to as the “father of international law.”⁹ These scholars argued that even though international politics was anarchic, lacking a unitary hierarchical structure, this did not mean that rules and indeed law could not govern state behavior. They argued rather that international society was an anarchical society, but a society nonetheless, a carefully regulated one.¹⁰

Liberal institutionalists’ arguments vary, but they combine key elements of liberalism with elements of institutionalism. They argue for the importance of institutions and cooperation in the international system – far from being anarchic, they argue, international order is maintained and rule-governed. This may be the case, in large part, for self-interested reasons: states create institutions that facilitate activities in which they wish to engage, such as trade, or ease the risks of risky negotiations, such as those over arms control. These theorists argue that because institutions or regimes facilitate transparency, reduce transactions costs, and reduce the risks of cheating, states will create rules and abide by them. Many also argue that, once created, institutions develop an identity and power of their own, constraining state behavior even where states may wish to deviate from agreed rules. Path dependency ensures that institutions are easier to maintain than they are to create. Liberal institutionalists may further argue that liberal states that adhere to the rule of law at home will be more likely to promote rule-governed behavior internationally, and to create and abide by international legal regimes.¹¹

Constructivists, too, have embraced the role of law and norms in international politics. They reject the realist claim that anarchy in the sense of the absence of a unitary ruler in international relations means that behavior cannot be ordered. As Alexander Wendt put it, anarchy is what states make of it, and they can construct social interactions and institutions that are orderly. Norms have an impact upon state actors, shaping their identity and interests, and thus shaping their behavior. The account of normative development that they offer often reads very much like that of the emergence and shaping of international law, particularly customary law. By this account, norms may emerge initially through the efforts of a few norm entrepreneurs. Over time, these entrepreneurs are able to convince actors to adhere to their norms, and at some point, when a sufficient number have adopted a norm, a tipping point is reached and it becomes embedded. Central to this account is the nature of actors’ belief systems: actors change behavior because they believe it to be in their interest, or consistent with their identity, to do so. Norms, and indeed law, are then not cynical fictions as realists might suggest, but rather create real limits on state behavior.¹²

Finally, emergent work devoted to the so-called legalization of international politics focuses less on debates about whether or not international law is important in international politics and more on explaining how legalized institutional arrangements come to be. They use state interests and preferences to help explain why states choose to develop regimes that appear to constrain them. Such legalization can be harder or softer, and its creation is driven by state interests. States will strategically choose harder or softer law according to their needs. Harder law has the advantage of reducing transaction costs, strengthening credible commitments, and resolving problems of incomplete contracting and later interpretive disputes. Softer law has lower contracting costs and lower sovereignty costs, facilitating compromise and allowing the possibility of coping with uncertainty.¹³

International lawyers have been saying for years that “law matters” in international affairs; now, current events are proving them right and IR scholars are taking note. Myriad books and articles have been devoted to the subject, seeking to identify the gap between international law and international relations, and arguing that it must be bridged, since roughly the end of the Cold ...