Power and Law in International Society

International Relations as the Sociology of International Law

Mark Klamberg

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317617112
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

When studying international law there is often a risk of focusing entirely on the content of international rules (i.e. regimes), and ignoring why these regimes exist and to what extent the rules affect state behavior. Similarly, international relations studies can focus so much on theories based on the distribution of power among states that it overlooks the existence and relevance of the rules of international law. Both approaches hold their dangers. The overlooking of international relations risk assuming that states actually follow international law, and discounting the specific rules of international law makes it difficult for readers to understand the impact of the rules in more than a superficial manner.

This book unifies international law and international relations by exploring how international law and its institutions may be relevant and influence the course of international relations in international trade, protection of the environment, human rights, international criminal justice and the use of force.

As a study on the intersection of power and law, this book will be of great interest and use to scholars and students of international law, international relations, political science, international trade, and conflict resolution.

1 International law as a leap of faith?

There is a need for international law scholars to engage in interdisciplinary collaboration. Even though international law scholars often are aware of the fact that law is only one of many factors affecting individual and collective action, we too often restrict our enquiries to the content of the law, with the tacit assumption that the law will be enforced. At the other end of the spectrum, international relations scholars belonging to the realist camp perceive international law as a mere component in the struggle of states for power or security, devoid of non-instrumental significance or prescriptive worth. Little to no consideration is therefore afforded to the content of international law or to facts which challenge this narrow view. As asserted by Henkin, “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”,¹ but it is difficult to obtain evidence and to evaluate the influence of international law.

Is the supposed relevance of international law therefore a leap of faith? Is international law a religion where we are supposed to treat vital state interests, ultimately the survival of nations, as a matter of belief? International law may at times mandate states to take action or abstain from doing so, which may contradict states’ political or economic interests. Should states obey the law in the blind faith that other states will do likewise? Belief in god is sometimes portrayed as an all-or-nothing affair. In a similar way, is the existence of international law a digital choice between utopian idealism and apologetic realism? Fortunately, as this book argues, the study of international law does not need and should not be regarded as a religion. As Gardner argues, “Law is not God and happily lawyers need not, in their professional capacity, be true believers”.² The question of legal compliance at the international level has over the years been treated as a religious, moral and philosophical question, and only recently as an empirical question.³ Consistent with this development, it is argued in this book that international legal scholarship to a larger extent should use empirical techniques and relate to international relations theories.

Klabbers warns against fully-fledged interdisciplinary projects, such as between international law and international relations. His main argument is that “appeals for interdisciplinarity, however laudable in the abstract, carry a serious risk of reproducing, or even strengthening, existing power configurations”.⁴ In other words, he argues that interdisciplinarity does not necessarily create a better understanding of international law. He also notes that “[i]nterdisciplinarity often presumes a flat, one-dimensional vision of the discipline-to-relate-with, yet such a one-dimensional view will rarely, if ever, be persuasive”.⁵ The present book attempts to avoid this specific pitfall by discussing several international relations approaches.⁶ States accept international regimes—delineated areas of rule-governed activit—in the international system. This is a puzzle insofar as the international system is anarchic (without a ruler). How is it possible to have rules without a central authority to legislate, adjudicate and enforce international law? Why should states consider rules when they balance power and/or threats or pursue ideological aims? Why and when do states accept international legal regimes when their autonomy would be less constrained by avoiding legalization?⁷ How do we account for the willingness of major powers to invest resources in regimes, if such regimes are lacking in significance?⁸

As indicated above, the rationale behind this book is that international law literature tends to focus on the content of international rules (or regimes, as referred to in international relations scholarship) but have a tendency to ignore why these rules exist and to what extent they actually affect state behavior. The assumption is that states follow international law when the reality sometimes tells us differently. In its extreme form, legal scholarship operates in a “social, economic and political vacuum”.⁹ Turning to international relations literature, some scholars focus on theories based on the distribution of power among states, ignoring or questioning whether international law is of any relevance.¹⁰ International relations scholars who acknowledge the existence and relevance of international law tend to describe the regimes in a cursory manner. This means that it is difficult for readers to understand international law in more than a superficial manner. In other words, there is a lack of precision when they discuss such matters. Thus, existing research often fails to discuss in a unified context the two concepts of power and law, and how they interrelate to each other in more detail. This book covers theories of international relations, international law and formal institutions, as well as an account of empirical research on the relevance of international law on the behavior of states. It does not aim to give a full account of all the details of the regimes surveyed. Rather, it is a snap-shot of some of the critical aspects of international relations and international law.

The aim of this book is to assess how international law and its institutions may be relevant and influence the course of international relations. In this, it is a study on the relationship between power and law. Five regimes are analyzed: international trade, environmental protection, human rights, international criminal justice and the use of force. This book conveys two main arguments. First, it is argued that variations in the degree of legalization between different regimes concern to a lesser extent whether states have consented to legal obligations, but rather on who has the power to interpret and enforce the obligations. States have consented, to varying extents, to general rules and exceptions on the five regimes covered in this book. The question is who decides whether it is the general rules or the exceptions that are applicable in a given situation and how are such decisions enforced? States are, arguably, unwilling to delegate the powers of interpretation and implementation to a third party when their own survival is at issue. Second, it is argued that international relations—to the extent it considers the impact and relevance of legal rules—is the sociology of international law.

To examine whether and how international law influences state behavior does not mean that decision-makers and international judges should ignore the content of law.¹¹ These are two different perspectives with different purposes.

The present book has a differentiated approach to the sub-components, institutions and regimes of the international system and international law. The differentiated approach is used to analyze the relationship between politics and law in relation to the five abovementioned regimes. This sample is done so as to represent one area of high politics (the use of force), one area which concerns technical matters (trade law) and areas between those two ends of the spectrum (environmental protection, human rights, international criminal justice). This characterization of high politics on the one hand and technical matters on the other is revisited in sections 2.1.1 and 2.3.

Chapter 1 briefly explains why there is a need to discuss the content of international regimes, provides a definition of international regimes and introduces a framework on how different international regimes may be compared, analyzed and understood. Chapter 2 describes different scholarly approaches within the fields of international relations and international law towards regimes, power and law. Chapter 3 discusses trade law with a particular focus on the General Agreement on Tariffs and Trade (GATT). Chapter 4 deals with environmental protection, looking particularly at the obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states. The discussion in Chapter 5 on human rights is primarily be based on the nine “core” international human treaties of the United Nations (UN) and the three regional treaties of Europe, Africa and America. Chapter 6 examines international criminal justice, namely how it is established in the legal framework of the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC). Chapter 7 deals with the use of force, which covers the relevant rules in the UN Charter and international customary law, as well as the role of the UN Security Council.

The analysis in Chapters 3–7 is structured in the same way and seeks to provide answers to the following questions. First, the potential objectives of the international regimes outlined are considered. By examining the function of the regimes, it may be possible to understand why states accept regimes and constraints. Second, the degree of legalization of these international regimes is analyzed. This is measured in four dimensions: obligation, precision, delegation and state acceptance. Each international regime considered in the study is ranked pursuant to one of 16 combinations on the forms of international legalization described in section 1.2.1.5. Third, attention is given to gender bias in the surveyed regi...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Table of cases
• Abbreviations
• 1 International law as a leap of faith?
• 2 Approaches to international regimes, power and law
• 3 International trade
• 4 Environmental protection
• 5 Human rights
• 6 International criminal justice
• 7 Use of force
• 8 Reconciling international law and international relations
• Bibliography
• Index