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.
I think that the greater challenge is actually one that is completely outside of international, national, or even local law: that every day more economic decisions are being made by companies and individuals, fundamentally without the knowledge of government. Governments are on the horns of a dilemma. Either they can put controls and restrictions on this commerce, running the risk of killing the goose generating golden eggs for so many countries or they can allow these decisions to be made freely, rendering themselves irrelevant.
Just because the US isn’t constrained now, doesn’t mean that it won’t be under a democratic president or even a more moderate GOP president.
Second, its a question of is vs. ought. Even if it doesn’t constrain us, it doesn’t mean that we shouldn’t follow it or that other countries shouldn’t follow it or that its not useful. International law creates a norm, which even if its not perfect, creates a baseline to talk, evaluate, and create accountability for countries in the international sphere.
Third, international law matters. Our engagement of multilateral institutions is critical for coalitions of the willing to solve issues of genocide, proliferation, poverty, and every other conceivable international problem including terrorism. Professor John Ikenberry at Georgetown University makes a very convincing case for this line of thinking in Foreign Affairs in the fall of 2002 (he’s had some follow up articles elsewhere as well).
Shake and Becker in Policy Review make additional arguments that are devastating to unilateralists who would keep us out of international institutions like international law. Its pretty undeniable that unilateralism leads to overstretch. For instance this administration has been radically hemmed in dealing with important issues of national security in Iran, Sudan, and Asia (I don’t think even Levey and Brown take this into consideration in their manifesto). In fact, it was overstretch that led to the decline of the Roman empire (thanks Christopher Layne). Further, the formation of NATO has been critical to the economic prosperity, US leadership, and relative stability post WWII. A world without Nato would have been far worse and its hard to calculate how its serve to solidify the economic relationship that maintains about 1/3 of world trade. Thats a pretty convincing record of a nearly a hemisphere of prosperity that probably would not have existed otherwise.
Nathan, is NATO really the multilateral institution you’re saying or is it really a modern suzerainty whereby the US may project militarily into the European and Central Asian theater by buying off a portion of member-states’ sovereign rights in exchange for security guarantees? Which is to say, a hegemonic stability theorist (or an old-fashioned realist) would look at NATO very differently than a liberal internationalist, and putting it into the same basket as other international institutions (e.g. the UN, the IMF, etc.) for the purposes of stressing cooperation is fitting a square peg to a round hole.
However, this leaves out those myriad cases (for example, IPR in China) where a WTO member violates the rules yet nobody has the desire to actually press the issue because the WTO bureaucracy moves slow or because it invites counter-filings by the targeted parties…
So it’s one thing to say that people listen to the authorities after a decision has been made, and the historical record agrees with that, but in the WTO (as in the UN), there’s strong disincentive to declare that rule-breaking has actually occurred, since it “makes too much work” (for lack of a better term) for all involved. A case in point: according to the UN, will there ever be a “genocide” in Darfur?
I seem to be in a bit of a sticky wicket if I understand Matthews answer. First, Matthew is correct to point out the distinction between two types of multilateralism, however the fact that both require responsibilities and constrain willy nilly unilateralism is pretty undeniable. And many folks would say they are more similarities than differences to the extent that the US still is pretty hegemonic in the UN and would probably heighten our hegemony if we joined the International Criminal Court. By being on the security council we also get to decide who gets peacekeeping missions and who doesn’t. In other words we can choose to fund and support PKOs that are valuable to our economics interests (not sure how this theory plays out in practice) To the extent that we benefit from the “free trade” the IMF imposes via structural adjustment…its hegemony…just of the economic variety. I think there’s certainly as much similarity between these two as there are between the Vietnam war and say the Iraq war.
Here’s the sticky wicket part. I think that NATO and multilateralism allows for an archimedian point for US hegemony, or as Greenspan might refer to it a “Goldilocks” hegemony. NATO certainly allows us some military and economic advantage in Europe, but not to the extent that it would provoke hostility. Multilateralism, like the ICC and the CTBT allows us to maintain our position as police power without becoming the vigilante who uses either military intervention in the case of the ICC or mini-nukes (or at least tests for mini-nukes) in the case of the CTBT. Does that answer your question?
Nathan, the problem is that the strongest international institutions are organized around American power, rather than merely having America as a participant, and this is why international institutions that do not directly or indirectly put the US in a primus inter pares position are weaker. The WTO may seem to contradict this assertion, but the hegemonic stability theorist would say that because the US is structuring the international market to benefit itself, then the WTO is a tool of the hegemon.
You claim that we would heighten our hegemony with accession to the ICC, but this is a counterfactual in need of more exploration. (I will also set aside the realist objection to the ICC on the grounds that the forerunner to the ICJ has (a) been horribly slow and ineffective and (b) inevitably applies “victor’s justice.”) Hegemons are, after all, fairly jealous of their power, and only surrender some sovereignty (as in the WTO case) when the payoffs can justify it. Furthermore, your invocation of the CTBT doesn’t fit with the ICC example, as the US is a functioning member yet her membership in that organization has not prevented defections or cheating, especially as the barriers to entering the nuclear club have gone down. (I presume that you intended to argue in the ICC example that the presence of the hegemon as a member would add pressure to malcontents to follow the organization’s rules.)
Isn’t research on mininukes in violation of the CTBT? Although I don’t know if we are actually funding it. And my understanding is that all that is involved is a “testing moratorium” which is radically different from being in the treaty. My argument that it increases our hegemony is based on that it locks in our military superiority so that other would-be prolifers (ie india and pakistan, etc) would be detered (norming) from developing nuclear weapons if they sign on.
The ICC…not sure how thats counterfactual. The current state of affairs is that the ICC has universal jurisdiction, which means that theoretically our soldiers can be brought under it–a system where we help nominate judges and provide other logistical resources seems to suggest that we would have more control over this. Also, we could help define the norms of what genocide is and not to ensure the system wasn’t abused. Second, norming non-intervention is good for our hegemony. Third, if genocide escalates–particularly near oil, SLOCs, or scare resources, thats a threat to our hegemony. Fourth, the arguments I previously advanced for multilateralism enhancing hegemony. For instance, multilateralism solves balancing (like people saving shove off in the WTO), solves burden sharing which is critical in a world of scarce resources post-iraq, allows us to have bases for quick deployment, equals information sharing and global collaboration, and the UN/Nato empirical example post WWII. Also, multilateralism solves the problems associated with overstreach and the pre-emptive doctrine–ie norming the intervention is good & legitimate.