Brian Shiue Zaryab Iqbal International Relations 9 April 2012 Idealistically International: Realistically Realist Question 3: International Law-

Liberal or Realist? Extent?

After the failure of the Wilsonian League of Nations foreshadowed the generationeliminating horrors of World War II, the international community finally found the incentive to begin forming the constructs of international law. While initially optimistic and full of promise, international law never truly expanded past its infancy stages. Failing to transcend the influence of the major powers and become the fixture it was meant to be in the international system, international law remains in the realist stage of development. At each stagesource, enforcement, and impactinternational law remains subservient to the domestic interests of sovereign states and unable to unilaterally effect any meaningful change. Due to universality disputes, the sources of international law fail to take the unanimous form necessary to meet the liberal definition. As our textbook notes, four sources create the foundation of international lawtreaties (the written conventions between states), customs (long-held patterns of behavior), general principles of law (universality of certain thought processes), and legal scholarship (written arguments of distinguished scholars covering topics not addressed by the three above) (Pevehouse 255) [1]. None of the four have proven the ability to either transcend the normative balance of power considerations or proven their universality. Without broad consensus, anarchic norms of international relations continue to set precedence in reflection of realist power dynamics. Beginning with the first source, treaties between nations inherently promote one states agenda over another in reflection of power brokering. While offering greater legitimacy than norms or customs due to strict codification, the reliance of treaties on power dynamics undercut their perceived idealized role for liberal internationalists. Using the hallmark example of the

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1968 Nuclear Non-Proliferation Treaty (NPT), this treaty enshrined the standing balance of power rather than effect any meaningful change. By collectively, in many cases through US/Soviet pressure, deciding to limit the spread of nuclear technology, the NPT implicitly created an exclusive nuclear clubthose already with nuclear weapons would be permitted to keep theman unmistakable preservative of the then-current power dynamics. Next, the heterogeneity of customs prevents one single definition of international law. As noted scholar Lee Kuan Yew notes, the fundamental difference between Western concepts of society and government and East Asian concepts is that Eastern societies believe that the individual exists in the context of his family. He is not pristine and separate. The family is part of the extended family, and then friends and the wider society. The ruler or the government does not try to provide for a person what the family best provides (Yew 1994)[2]. How, therefore, can international law effectively bridge that gap between the negative rights of western societies and the positive rights of eastern one? For a law to be designated as international, it must express a global cohesion based on universal foundations, as the UN Declaration on Human Rights strove forsomething especially difficult with (generally) two polarized set of customs. Without that premisethat these norms truly are universalthe second element of international law falls to scrutiny. This divide extends to the remainder of the elements as well. The divide between cultural normscultural relativismalso prevents consensus on most issues for establishing general principles of law leaving international law bereft of the ability to directly influence change. Nations often cling to their own established principles rather than come to agreement. Starting with the easier example, the Assad regime rejects the call of international law to stop repressing its citizens. Claiming a need for domestic security and the preservation of order amongst others, it denies the outside scrutiny which condemns it as in violation of the general principles of law as read in its domestic context. But the Assad regime isnt the only government which claims exclusion to generally held principles. Confronted by western allies over the barbarism of its capital punishment policy, America, too, claims the shield of cultural relativism and orders others out of its business. Thus while generally held principles can serve as a framework, their saliency largely relies on the force of those holding that belief, which brings to questionexactly how general is generally?

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The arguments against a general application of legal scholarship largely follow the above path. Barring some egregious (Holocaust worthy) act, the clash between eastern and western values will continue. No matter how violent or prolonged the repression, authoritarian regimes, supporting scholars and domestic courts subordinate westernized civil rights to the overriding priority of maintaining order and produce scholarship extolling the virtues of state sovereignty. Likewise western ideals supporters produce work arguing their own particular perspectives. Thats not to say theres absolutely no merit to international lawit casts a framework for future standards to be applied in the most heinous and generally acknowledged violations. However, insofar as bridging gaps without great power support, international law finds itself lacking, particularly in the case of enforcement discussed next. Even in cases of commonly acknowledged violations of international law, enforcement remains dependent on great power cooperationthe same great powers who place their own domestic interest as priority. As Pevehouse notes, There is no world police force. Enforcement of international law depends on the power of states themselves, individually, or collectively to punish transgressors (255). While international organizations such as the UN have proven apt in the identification of these transgressors, the ability to effect change remains at the top of the global hierarchy. Pevehouse provides the explanationinternational law enforcement has one great weaknessit depends entirely on national power. Reciprocity works only if aggrieved state has the power to inflict costs on the violatorsthus it is relatively easy to cheat on small issues) or to get away with major violations if one has enough power (256) [1]. With only a handful of nations endowed with the capability for active intervention, the power balance in the international system continually tilts to these states as they are able to selectively choose which laws to enforce and obey. While internationalists extoll the benefit of creating common expectations and identifying violators, this both undercuts the arguments for the effectiveness of international law and reinforces the realist perspective. First, creating common expectations and identifying violators represent passive elements. The purpose of law isnt to simply aggregate expectations but enforce themto create a community based on certain commonalities with deviants punished. Without credible enforcement, little incentive exists to follow these guidelines consistentlythey become sources of indirect leverage (identity principle) rather than carry the

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force of law. For example, in regards to the highest mechanism for enforcement, the World Court, creating commonalities and identifying violators serves little purpose except to those lacking the power to transcend rulings. As Pevehouse writes, almost all states have signed the treaty creating the Court, but only about a third have signed the optional clause in the treaty agreeing to give the Court jurisdiction in certain casesand even many of those signatories have added stipulations reserving their rights and limiting the degree to which the Court can infringe on national sovereignty (257) [1]. Here he raises several poignant issues. First, while almost all states have signed the WCs initiation treaty (thus fulfilling the creating common expectations caveat), only a third have taken the steps towards giving the court jurisdiction in issues closer to domestic concerns. Out of this select group, Pevehouse reports that a number of even these states have taken steps to limit the capability of the WC (257)[1]. Essentially, all states aim to retain the ability to employ a WC ruling as leverage while reserving their own domestic matters outside of the courts jurisdiction. In 1986, when the US was sued by Nicaragua over the CIAs mining of harbors, it simply withdrew from the treaty and placed itself outside of jurisdiction. When it seized the US embassy, Iran refused to acknowledge WC jurisdiction clinging to the oft-cited state sovereignty defense (257)[1]. Looking at the above, it may explain why the WC enjoys a relatively low caseload. Summarily, international enforcement mechanism lack the consistency and credibility necessary to truly earn the designation of lawby implicitly delegating these responsibility to the great powers, international law only perpetuates the current order at worst or creates indirect leverage at best leaving the world to realist expectations and limiting the extent of its influence. Examining the effects of international law places the above in perspective and realizes the glaring deficiencies in international law. Using Scalias favorite market, broccoli, to draw an analogy, imagine our current international system as a Brave New World-esque market for broccoli. The system groups consumers into tiers which represents groups of consumers: the Alphas representing the great powers, the Betas, the regional powers, and descending from there. Now our market for broccoli has some standard rules, the foremost being dont steal broccoli, pay for it. But the Alphas dont acknowledge that, theyre raised in a culture where they essentially do as they please, in sharp contrast to the strict rule following of the Gammas,so they flaunt the rules of BroccoliLand and take the broccoli without paying for it. As the other

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powers dont have the capability to enforce the rules, the Alphas emerge unscathed and the Betas soon follow their example resulting in an inefficient and unequal system. While BroccoliLand creates shared expectations and norms (not always a given in international relations) in that broccoli should not be stolen, the lack of enforcement and lack of universal interest in system maintenance reflect similar concerns in international law. While simplified in this case, the difference in cultural norms between different tiers or groups results in different interpretations in the legitimacy of certain actions. In a system devoid of a check to the great and regional powers (Alphas and Betas), they are essentially able to free ride the stability of the system/market for the broccoli while arbitrarily choosing which regulations to follow with relative impunity. Correspondingly, state interests ultimately form the greatest obstacle against international lawwith enforcement in the hands of those with the incentive to free ride, little substantive punishment resultswith what little punishment occurring disproportionately targeting those at the lower end of the dominance hierarchy. The system of international law quintessentially remains in its formative stagesunable to transcend the existing system of balance of power relations. It fails to summon universal premises to form the sources of legitimate power. Without the ability to enforce decisions barring an overreliance on great powers, the international legal system fosters a dependence on those powers and largely serves the existing distribution of power. Finally, international law has, at best, begun to form frameworks for future expectations of behavior, having only an indirect effect on state behavior subordinate to the direct influence of great powers through the dominance principle.

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Works Cited 1. Pevehouse, Jon. International Relations. New York: Longman, 2012. 2. Yew, Lee-Kuan. "Culture Is Destiny; A Conversation with Lee Kuan Yew." Foreign Affairs, 04, 1994. April 8, 2012. http://www.lee-kuan-yew.com/leekuanyewfreedzakaria.html.

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http://www.lee-kuan-yew.com/leekuanyew-freedzakaria.html

Drawing from the classic Soviet-US SALT negotiation example during the Nixon administration, decisions by both sides embodied the presence of balance of power considerations in the formation of treaties. The Soviets, finally recognizing the limits of their ability to expand militarily, desired SALT talks namely to enshrine the current status quoto prevent the US from drawing them into another costly arms race. The United States agreed to the treaty as a nod to similar principles. Grossly overestimating Soviet power, American policymakers sought to use SALT talks as leverage to open negotiations on numerous fronts such as reducing Soviet influence in the Middle East and a resolution on the war in Vietnamthe principle of linkage. The SALT treaty itself left enough interpretations that the only constraint on the