Robert Art’s America’s Grand Strategy and World Politics, published earlier this year, is a collection of essays on U.S. grand strategy that Art wrote over the past couple decades. In one essay, “U.S. Foreign Policy and the Fungibility of Force,” Art states:
…[M]y goal is to show that arguments about the severely diminished utility of military power are both wrong-headed and dangerous. They are wrong-headed because they misunderstand the subtle ways in which force influences politics; they are dangerous because, if acted upon, they could cripple American statecraft and grievously harm American interests.
Art critiques statements such of this one of David Baldwin:
Two of the most important weaknesses in traditional theorizing about international politics have been the tendency to exaggerate the effectiveness of military power resources and the tendency to treat military power as the ultimate measuring rod to which other forms of power should be compared.
Art argues against Baldwin, concluding that “force will continue to be an essential, but never the sufficient, ingredient to America’s statecraft.”
The point that Art makes about force is also true about international law. Many critics of international law claim that its effectiveness is exaggerated, but these same critics overlook the less obvious ways that international law is influential. Louis Henkin presents the international law dilemma in 1979 in his book, How Nations Behave. As Henkin writes, while “the student of foreign affairs is skeptical about international law” and “sees it in the main as an esoteric subject for academic speculation,” the student of international law “tend[s] to begin with international law, and often they end there: law is law; all of it should be observed, and respectable governments observe it…” This tension persists to the present day.
The view that “international law is not law” has an extensive historical pedigree, stretching back at least to the 19th century jurist John Austin, who wrote that “the law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person in a state of subjection to its author.” Austin argues that international law is merely a set of moral principles with no binding force. More recently, John Bolton made the same argument, writing:
When somebody says, “That’s the law,” our inclination is to abide by that law. Thus, if “international law” is justifiably deemed “law,” Americans will act accordingly. On the other hand, if it is not law, it is important to understand that our flexibility and our policy options are not as limited as some would have us believe.
Bolton dubs international law nothing more than “a series of political and moral arrangements,” but admits that “moral and political obligations in the real international world are often far more binding than ‘law'”, revealing that this debate is merely one of nomenclature. In fact, Bolton’s statement might explain Henkin’s observation that “almost all nations observe almost al principles of international law and almost all of their obligations almost all of the time.”
Still, another possibility exists. Jack Goldsmith and Eric Posner assert in The Limits of International Law that customary law is “simply coincidence of interest” and that treaty law is limited by “the configuration of state interests, the distribution of state power, the logic and collective action, and asymmetric information.” In other words, states abide by international law but wouldn’t have agreed to it in the first place unless it was already in their interest to do so. Posner repeated this assertion in a Foreign Policy editorial earlier this year.
But Goldsmith and Posner cannot successfully grapple with a question that inevitably follows: why, then, do government officials perpetually frame issues in terms of law, ethics, and morality? Goldsmith and Posner attempt to answer this question by plucking from E. H. Carr the words of Count Walewski, France’s Foreign Minister in 1857, who said that “the business of the diplomat is to cloak the interests of his country in the language of universal justice.” However, Goldsmith and Posner ignore other important points Carr makes about this issue. Carr was a realist, meaning he believed that countries seek and should seek power maximization in the international arena unrestrained by morality or law. Carr’s explanation of why government officials frame issues in terms of justice is epitomized by the Walewski quote: it’s all a lie.
But why is this lie necessary? Carr admits that realism cannot answer this question. He writes:
The necessity recognized by all politicians, both in domestic and international affairs, for cloaking interests in the guise of moral principles is in itself a symptom of the inadequacy of realism… International politics are always power politics; for it is impossible to eliminate power from them. But that is only part of the story. The fact that national propaganda everywhere so eagerly cloaks itself in ideologies of a professedly international character proves the existence of an international stock of common ideas, however limited and however weakly held, to which appeal can be made, and of a belief that these common ideas stand somehow in the scale of values above national interests.
According to Carr, adherence to legal and moral principles is necessary to secure political support. This might explain the fact that, though international law lacks a centralized enforcement mechanism, “to deny that international law exists as a system of binding legal rules flies in the face of all evidence,” to quote Hans Morgenthau, another one of the 20th century’s famous realist theorists.
In fact, turning to Thucydides, the grandfather of realism, one can find arguments about the strategic implications of violating international law. In his History of the Peloponnesian War, Thucydides portrays the Athenians’ rationale for invading the neutral and much less powerful island of Melos. The Athenians, prevented from making their case directly to the people of Melos, refuse to frame their decision in terms of justice or morality. Instead, the Athenians assert that “the standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept.” Continuing, the Athenians lay the groundwork for what would become known as realism 1500 years later, asserting:
Our opinion of the gods and our knowledge of men lead us to conclude that it is a general and necessary law of nature to rule whatever one can. This is not a law that we made ourselves, nor were we the first to act upon it when it was made. We found it already in existence, and we shall leave it to exist for ever among those who come after us. We are merely acting in accordance with it, and we know that you or anybody else with the same power as ours would be acting in precisely the same way.
However, today, the Melians’ counterarguments are just as relevant as the Athenians’ arguments, if not more so. The Melians ask:
Is it not certain that you will make enemies of all states who are at present neutral, when they see what is happening here and naturally conclude that in course of time you will attack them too? Does not this mean that you are strengthening the enemies you have already and are forcing others to become your enemies even against their intentions and inclinations?
The Iraq War, for one, demonstrates the prescience of the Melians. The U.S. invasion of Iraq in 2003 was widely perceived to be a violation of the UN Charter’s Article 2(4), which states that parties to the Charter “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…” Thus, the international community reacted with soft balancing (as Robert Pape and T.V. Paul examined in 2005), using international institutions to frustrate the U.S. endeavor. Worldwide public opinion turned drastically against the U.S., leaving the U.S. able to garner mostly fragile and minimal international support (Thailand and the Philippines contributed a small number of troops but withdrew them precipitately, Turkey joined the U.S. coalition but its parliament voted against allowing U.S. troops to invade Iraq from Turkish territory, Jordan joined the U.S. coalition under the condition that its membership be kept secret).
International law cannot live up to its own expectations. The UN Charter has not “save[d] succeeding generations from the scourge of war,” as it says it intends to do in its preamble. However, as Art writes about military force, international law plays an often unacknowledged role in world affairs. Arguments about the irrelevance of international law, to borrow Art’s words, misunderstand the subtle ways in which international law influences politics and “are dangerous because, if acted upon, they could cripple American statecraft and grievously harm American interests.”
