Does power trump law?

• Author: Greenberg, Jonathan D.
• Position: International relations - Symposium on Treaties, Enforcement, and U.S. Sovereignty

The craving for an interpretation of history is so deep-rooted that, unless we have a constructive outlook over the past, we are drawn either to mysticism or to cynicism.

--Frederick Powicke Modern Historians and the Study of History (1)

On his right hand Billy tattooed the word love and on his left hand was the word fear And in which hand he held his fate was never clear....

--Bruce Springsteen Cautious Man (2)

FIGURES INTRODUCTION I. TREATIES IN INTERNATIONAL-LAW SCHOLARSHIP A. From Classical to Structural Realism: Anarchy Determines Outcomes B. Anarchy Management: Treaties Allow States to Manage Constraints and Dilemmas of an Anarchical International System C. Anarchy Transformation: Networks of Treaty Regimes and Institutions Construct and Strengthen an Emerging International Rule of Law D. Can This Debate Be Resolved? II. WHY REALISM MATTERS A. The Dominance of Realist Analysis in IR Scholarship B. Realism in American Jurisprudence C. U.S. Foreign Relations: Politics, Intellectual History, and Sociology D. A Realist Critique of Liberal Rhetoric III. PROBLEMS WITH THE REALIST PARADIGM A. Underinclusivity of Realist Theory B. Overinclusivity of Realist Theory C. Normative Justifications of Power D. Bush's "Americanism": Realism as Ideology CONCLUSION FIGURES FIGURE 1: ANARCHY DETERMINISM FIGURE 2: ANARCHY MANAGEMENT FIGURE 3: ANARCHY TRANSFORMATION INTRODUCTION

States have increasingly joined multilateral treaty regimes to regulate, manage, and improve their mutual relations. (3) In the 1979 edition of his seminal 1968 study How Nations Behave, Louis Henkin notes: "The number of agreements registered at the United Nations is more than ten thousand"; in addition, "[t]here are thousands of agreements in effect which are not registered at the United Nations." (4) Today the United Nations has registered over forty thousand multilateral treaties--a 400% increase in just over two decades--and the number is growing at a rate of 100 new volumes per year. (5) These treaties, "many of which concern fundamental functions of government," (6) regulate every significant field of global concern.

Since Henkin's pioneering work situated international law scholarship in the empirical assessment of overwhelming state compliance, (7) legal scholars in the liberal internationalist tradition have engaged in an ambitious research enterprise to investigate this phenomenon and assess its impact. (8) These scholars argue (1) that powerful norms of treaty compliance demonstrate the increasing autonomy of treaties and related institutions in an evolving international system, i.e., treaties constrain, influence, and shape the behavior of member states, and (2) that multilateral treaty regimes assume, or potentially assume, governance functions in an evolving international system, i.e., these regimes contribute to the transformation of the system and the identity of states acting within it.

In contrast, International Relations (IR) scholars in the realist tradition present a radically skeptical view. (9) As John Mearsheimer suggests, "[r]ealism paints a rather grim picture of world politics." (10) In this picture, the domain of "international relations" is defined by "relentless security competition" between states under conditions of "anarchy" (in the sense that there is no "government over governments"). (11) States must provide for their own defense and take care of their own security. No one else will do it for them; if they fail to do so sufficiently, "they are likely to pay a steep price ... because if an aggressor appears at the door there will be no answer when they dial 911. That is a risk few states are willing to run. Therefore, prudence dictates that they behave according to realist logic." (12) While "[c]reating a peaceful world is surely an attractive idea," it is by this logic "not a practical one." (13)

Moreover, "realist logic" leads to the conclusion that international law essentially doesn't matter (or doesn't matter very much). Law has little or no substantive impact in the brutal world of political and military conflict in which states must, ultimately, fight their way. (14) Recognizing that the IR discipline is "stunningly silent" on law's role in international affairs, the liberal political scientist Beth Simmons identifies her colleagues' "aversion to law as a central ordering element of international politics." (15)

Liberal international law scholars, dismissed by realists as hopelessly naive, (16) generally respond by ignoring or rejecting realist critiques. (17) Because I share the values and research agenda of liberal internationalists, I am concerned that we've too quickly thrown out the baby (compelling insights and useful tools realism offers) with the bathwater (its limits and slipperiness as an explanatory theory, and its tendency to justify status quo power arrangements as a consequence of anarchy's inexorable logic). I advocate taking realist arguments seriously, and responding to them with critical engagement, in order to more accurately assess the limits and potential of international regimes.

Part I of this Article identifies prominent approaches in international law and international relations scholarship according to their assessments of the relative autonomy and governance functions of treaties in the international system. This comparison suggests a fundamental opposition between realist and liberal internationalist conceptions of multilateral treaties. Part II suggests why liberal international law scholars should more fully address realist arguments in their own scholarship and advocacy. Part III identifies problems and dangers in the realist paradigm that warrant criticism and caution. In conclusion, I argue that realist perspectives are useful and necessary additions to the interdisciplinary "toolbox" we utilize to study and promote international law, sustainable development, global security, and human rights.

1. TREATIES IN INTERNATIONAL-LAW SCHOLARSHIP

   1. From Classical to Structural Realism: Anarchy Determines Outcomes

      Realists of all varieties heed Machiavelli's warning that "security for man is impossible unless it be conjoined with power." (18) Leaders wishing to defend their state from attack must learn to master the strategic application of power and act accordingly in all circumstances and against all competitors. Clausewitz's dictum that war is a continuation of policy by other means (the sword instead of the pen) suggests its reverse, that "statecraft" is at its heart war by diplomatic means: Why use a sword when a pen will suffice? (19) But keep your sword sharp in the event negotiated agreements ultimately fail.

      Hans Morgenthau and Henry Kissinger, refugees from Nazi Germany who became key figures in the American realist tradition, witnessed in the barbarity of European totalitarianism a twisted moral fervor antithetical to the fundamental human security upon which democratic political systems depend. Failing to recognize the reality of Hitler's rising military power, depleting their arsenals, relying on treaties and declarations to keep the peace, liberal democracies created the conditions under which the global slaughter of World War II could no longer be prevented. For Morgenthau and Kissinger, the ignominious failure of the West's political "idealism" from Versailles to Hitler's invasion of Poland is summed up in a single image of humiliation: Neville Chamberlain, upon his return from Munich to London on September 30, 1938 after handing the Sudetenland to Hitler, waving a document before cheering crowds: "[H]ere is the paper which bears his name upon it as well as mine." (20) Instead of achieving "peace in our time" as Chamberlain proclaimed, the Munich treaty fatally shifted the European balance of power in Hitler's favor, igniting the global catastrophe Churchill called "the Unnecessary War." (21)

      Morgenthau's Politics Among Nations remains the seminal American work of realism in the "classical" tradition. Morgenthau's understanding of "the struggle for power and peace"--shaped by his own experience of the victory of fascism and antisemitism in his native Germany--carries over pessimistic assumptions concerning human psychology, and the drive for power, reflected in the worldview shared by Thucydides, Machiavelli, and Hobbes. (22) Morgenthau follows Spinoza's attack upon philosophers who "conceive men not as they are but as they would like them to be." (23) So Morgenthau's "functional" theory of international law concludes that "[a]ll the schemes and devices by which great humanitarians and shrewd politicians endeavored to reorganize the relations between states on the basis of law, have not stood the trial of history." (24)

      "Neorealism" or "structural realism"--the most influential IR school since the 1979 publication of Kenneth Waltz's Theory of International Politics (25)--successfully revived realist theory by abandoning the classical tradition's preoccupation with psychology, thereby freeing itself of debatable assumptions about a supposedly innate drive to power.

      For Waltz, the international system is composed of a decentralized, anarchic structure and of its interacting units (states). Waltz's anarchy is not a Hobbesian "warre of every man against every man" (26) but the absence of centralized, hierarchical governance structures such as those characterizing domestic authority systems in sovereign states. (27) As Weber defined the state as "a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory," (28) Waltz's conception of "anarchy" recognizes that no comparable monopoly exists in the international system; as a result, states must pursue their interests, and above all provide for their own survival, by means of self-help. "A self-help system is one in which those who do not help themselves, or who do so less effectively than others, will fail to prosper, will lay themselves open to...