Limits of International Law
Dan Drezner weighs in, again, in the cross-blog debate on the extent to which states, especially powerful ones like the United States, are constrained by international law. He cites a post by Henry Farrell that’s pretty similar in substance to the version I taught students in my Intro to IR classes. The key ‘graph:
The core insight of international relations is that international politics differs from domestic politics because there isn’t any actor with a monopoly on the use of legitimate violence to enforce the law. Thus, whatever international law there is flows from states or from organizations created by states. This doesn’t mean that international law doesn’t exist or that international law can’t have some degree of relative autonomy from states (international organizations aren’t perfect agents of states, and have some wriggle-room to shape law in ways that states might not initially have intended). It does mean that international law is fundamentally limited by the willingness or unwillingness of states to enforce it, except under relatively unusual circumstances (such as the European Union). However, within these limits, quite a lot is possible.
Dan’s conclusion is that “those constraints are far more powerful in the economic realm than they are in the security realm. And the reason is that the stakes are perceived to be much, much higher in the security realm, and governments are going to be risk averse on these issues.” That’s exactly right but so is Henry’s point that international law nonetheless matters a great deal.
Ultimately, no state — much less a great power — is going to be bound by agreements that they believe will endanger their security or their economic health. But that would be true without international law, too.
Even in the security arena, states tend to feel constrained by international norms. It’s true, for example, that the United States and its Coalition of the Willing ultimately invaded Iraq despite the failure to get the approval of the U.N. Security Council. This, however, followed months of attempts to gain Security Council approval and get more resolutions backed that would help justify the action in terms of international law.
In the economic realm, international regimes provide a wide array of beneficial rules and protocols that states, even powerful ones, almost always follow even if doing so is disadvantageous in the short term. Having a set of norms that can be relied on is sufficiently valuable as to more than offset small inconveniences. So, with incredibly rare exceptions, the United States or the EU or China will adhere to adverse rulings made by the WTO or other international tribunals so as to ensure that others will do the same.
Moreover, while security issues get the headlines, economic ones are geometrically more numerous on a day-to-day basis. If (to make up numbers for the sake of illustration) 85 percent of all diplomatic interactions are under an international law that is almost universally adhered to, another 14 percent are in the security realm but deemed by states not worth the soft power costs of bucking the system, and 1 percent involve states doing what they were going to do anyway, I’d say that’s pretty good.