Article by Sharon White
The international law is a system of legal norms which interstate attitudes with a view of maintenance of the world and cooperation. International relationships are the relationships with participation of the states, the international organizations and formations. In the field of international politics, realism, either classical realism or neo-realism, has very little room for international law. It dismisses international law as being virtually irrelevant to matters of high politics. In contrast, in the field of international law, legal positivism has paid scant regard to non-legal political considerations that might influence the implementation of international law. Positive lawyers have concentrated on determining a body of legal rules and believe it should be obeyed even if it is not. Thus there is a power-law divide; realists, accepting legal positivists' standing that law is a body of rules, deny the significance of international law on state's behavior and distain international law as an epiphenomenal role in the ordering of international life.
The above two maneuvers, although using different strategies, reach a common conclusion that the function of international law is not affected by the absence of central authorities in the world and is not limited to the function as the restraint to state behavior. It can perform a wider range of functions such as communication, justification, reassurance, monitoring and reutilization besides constraint.
In fact, the realists' misunderstanding of the nature and the functions of international law will inevitably cause them to underestimate the influence of international law. If they are right to say that the capacities or power rather than legal norms account for the behavior of states, we should witness the repetitive premeditated and deliberated violation of international law because realists holds that international law fails as soon as national interests diverge from what the law requires.
However, the real world situation is different from what the realists suppose. As what Chayes argues in New Sovereignty, although we see some worrisome cases of non-compliance such as Iraq's invasion of Kuwait and North Korea's refusal to the inspection of International Atomic Energy Agency, such cases are the exception rather than a common phenomenon. The non-compliance, as analyzed by Chayes, may come from the "ambiguity and indeterminacy of treat language, limitations on the capacity of parties to carry out their undertakings, and the temporal dimension of the social, economic, and political changes contemplated by regulatory treaties".(Chayes & Chayes 1995, 10) But states do not do it intentionally.
Besides, we also witness a growing influence of the United Nations on international affairs after the Cold War. And the World Trade Organization offers us another good example of compliance. Therefore, realists misunderstand the importance of international law. This point will be further discussed in the following section.
All the above discussion is confined to the field of international legal studies. But after discussing realists' underestimation of the influence international law, we need also to discuss some political response to this misunderstanding. Since the response from the literature of international relations theory is not the focus of this paper, we just discuss them briefly. The first response comes from the regime theory, or the institutionalism. It disagrees with realism on that power is the only independent variables in explaining international interaction. They argue that the international regimes -- sets of principles, norms, rules and decision-making procedures--also shape the states' behaviors and expectations. Realism not only misunderstands the importance of international norms (similar to international law) but also misunderstand the nature of international politics. In fact, institutionalism and international legal studies share a common ontology of the international system: the actors, the structure with which those actors act, and the process of interaction. And both concentrate on the studies of improved institutional design for better efficiency and compliance. While institutionalism attack the "power as only explaining variable" assumption of realism, liberalism attack the "state as the unit of analysis" assumption of realism. It emphasizes the interaction between states, domestic civil societies and transnational civil societies. Liberalism may complement institutionalism as the study primarily of law among liberal states, which is also a proposed topic of our course. Other international political theories such as constructivism also provide us insight to the logic of anarchy and self-help of states which is also an important assumption of realism. Since the limit of the space, we just skip it. One possible critique may state that it is not realists who misunderstand the nature, function and influence of international law but the scholars of international legal studies re-conceptualize their understanding of international law in order to response to the realist challenge. This critique is plausible because the realist challenge of international law was before the development of above legal arguments. But I think the purpose of research is not to argue who is wrong or not but to improve our understanding of the complicated international interaction. It is not important whether it is realists' misunderstanding. It is important that we gain new insight into international law and international politics. Another critique may be that in the above discussion we just present several legal approaches' responses to the questions but we do not have a unified approach to account for all the aspects we've discussed. I think the possible solution may be the convergence of international legal studies and institutionalism, which will offer us better understanding to both international law and international politics. In the paper, we mainly address three misunderstandings of realism on the nature, function and influence of international law. Instead considering international law as a body of rules of coercion without significance in its own right, we argue that it is a process with multiple functions and importance in its own right. We've examined and discussed several important international legal approaches and in the end, extended our discussion to the field of international politics a little bit. Although we still leave some problems unresolved mainly because we do not further the discussion of international law and institutionalism, this paper, as a summary of what we have learned in this quarter, is still meaningful, I believe.
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