Norms Governing the Interstate Use of Force: Explaining the Status Quo Bias of International Law

• Citation: Vol. 27 No. 2
• Publication year: 2013

Norms Governing the Interstate Use of Force: Explaining the Status Quo Bias of International Law

Richard Hanania

NORMS GOVERNING THE INTERSTATE USE OF FORCE: EXPLAINING THE STATUS QUO BIAS OF INTERNATIONAL LAW

Richard Hanania^*

Abstract

In this Article, the author argues against the standard view that there is no coherent and effective doctrine of international law regarding the interstate use of force. It is generally held that states interact with one another in a state of anarchy, at least when it comes to national security. After defining international law, I show that this is not completely accurate. Reflecting a status quo bias, classic invasions and territorial aggrandizement through force are illegal. Since 1945, states that have undertaken classic invasions have generally been sanctioned, and no state has taken territory from another by force since 1976. Part II presents a model that explains how norms not enforced by a centralized authority can have an impact on state behavior. I rely on political psychology and behavioral economics literature to show that the normative influence of law can cause states to refrain from attacking one another and the global community to sanction aggressors. The model as an explanatory tool is made even more plausible by investigations into earlier examples of the power of ideas to change state behavior and the finding that materialist or economic explanations of the status quo bias of international law are at best incomplete.

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Introduction..............................................................................................831

A. Methods of Analysis....................................................................834

I. The Status Quo Bias of International Law..............................837

A. What Is International Law?........................................................838
B. The Illegality of Classic Invasions .............................................845
C. The Lack of International Consensus on Humanitarian Intervention ................................................................................ 850
D. The International Community and Responses to Terrorism ....... 854
E. The Grey Areas...........................................................................859
F. The General Pattern...................................................................860
G. Should We Thank (or Blame) International Law?......................863

II. What Determines Which Norms Are Effective? ......................868

A. Why Do Some Norms Succeed? .................................................. 869
B. Case Studies ............................................................................... 883

1. The British Outlaw Slavery..................................................884
2. Postwar Decolonization.......................................................889
3. The Right to a Decent Standard of Living............................894

C. The Inherent Appeal of the Status Quo Bias ............................... 898

1. The Ban on Classic Invasions ............................................... 898
2. The Territorial Integrity Norm ............................................. 900

D. Towards an Abolition of War? ................................................... 901

Conclusion..................................................................................................902

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Introduction

Even among those who specialize in the subject, international law is a much-derided field. Contemporary textbooks on international law, unlike those covering other subjects, regularly begin with the question of whether it actually exists.¹ This is not a new development. The first paragraph of Hans Kelsen's Principles of International Law asks whether "so-called international law . . . [is] law in the same sense as national or municipal law?"² To take a more recent example, two scholars begin their recent book with the observation that "[i]nternational law has long been burdened with the charge that it is not really law."³ The main criticism is simple enough. Within a single country, the state enforces the law, but there is no third-party to ensure compliance with international law, often rendering it ineffective.⁴ Therefore, according to this line of analysis, states are best understood as units that are simply concerned with advancing their own interests, not legality.

This criticism has been particularly salient when discussing the use of force. Maintaining peace between states has long been considered the central function of international law.⁵ Here, scholars conclude that the rules purporting to regulate interstate interactions, in particular Article 2(4) of the U.N. charter,⁶ have been particularly ineffective.⁷ This appears to be a logical

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extension of the idea that the lack of an enforcement mechanism is what makes international law meaningless. If decisions relating to the economy or the domestic justice system are too important to be controlled by unenforceable mandates from abroad, states certainly cannot be expected to act in conformance with international law in the area of national security. Despite the fact that the U.N. Charter prohibits one state from using force against another, except in self-defense or with Security Council approval,⁸ there have been at least "690 overt foreign military interventions between 1945 and 1996."⁹ Some blame the supposed failures of international law to stop war for tarnishing the reputation of the entire field.¹⁰ Others maintain that, to the extent that it does restrain state behavior in the area of national security, the effects of international law have been pernicious.¹¹

This Article challenges these pessimistic conclusions. Part I shows that, despite claims that international law is ineffective, the concept is not meaningless with regards to the interstate use of force. Whether we look at the text of the U.N. Charter or actual state practice, some forms of state aggression, particularly seizing territory by force, are universally considered unacceptable.¹² Violators of these norms face overwhelming sanctions from the world community. An analysis that uses both the text of the U.N. Charter and the "obey-or-be sanctioned" standard can help us find answers regarding the question of when the use of force by one state against another is illegal. Some illegal wars are outlawed both from the perspective of the U.N. Charter and customary international law. Even under the most stringent "state practice" standard, for example, one state seizing land from another is unquestionably prohibited.¹³ At the same time, certain uses of force that appear to be banned by the U.N. Charter have become accepted by the international community; this behavior may draw rhetorical condemnation but no meaningful sanctions.

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Humanitarian intervention and limited strikes retaliating against terrorism appear to fall into this category.

The fact that the world community punishes classic invasions goes a long way towards explaining why states do not initiate this type of war.¹⁴ At one level, this solves what has been called the compliance question, which asks why states would obey international law when it lacks an enforcement mechanism.¹⁵ On the other hand, this obscures the root of the problem, because it does not explain why third-parties to conflicts sanction aggressors. In the realist model, there is still a collective action problem: While it would be in the best interest of all members of the international community to enforce rules against aggression, every particular state is better off shirking its duty and hoping that others deal with the problem.¹⁶ To prevent this type of free riding in domestic law, the state exists to ensure that, for example, everyone pays their taxes or serves in wartime.¹⁷ The problem in interstate relations is the fact that there is no such "international leviathan." If states do consistently sanction certain forms of aggression, as Part I shows, it only begs the question of what leads them do so. Part I closes by replying to those who argue that the decline of classic wars can be explained without invoking international law or global norms.¹⁸

The compliance problem is dealt with in Part II, which shows that most states do not invade one another because their leaders and populations have internalized the proposition that classical invasions are immoral. The rule against classic invasions is so embedded and unquestioned that those who violate this norm shock the conscience of the international community and become pariahs, as is what happened after Saddam Hussein's 1990 invasion of Kuwait.¹⁹ Political scientists have shown that international law is most likely to

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affect interstate relations when it can create objective Schelling Points that can shape expectations.²⁰ Building on the work of previous scholars, Part II presents a model that explains when an international norm is likely to be successful. As the rules composing the status quo bias are just the kind of norms that are likely to be respected, it is unsurprising that they have been followed. As will be shown, an embedded international norm virtually eliminating a certain practice is not new; the decline of slavery and colonialism are equivalent recent historical examples of the power of ideas, even without a third-party enforcer, to shape state conduct on the international plane. These norms share important similarities with the laws against classic invasions and seizing foreign territory: They are specific, inherently morally compelling, and at one point were backed by powerful norm entrepreneurs. Once one of these practices is considered immoral, logic dictates that the others also be forbidden.²¹ This Article ends with some thoughts on why understanding the current state of international law regarding the use of force is important and suggests that, before arguing for reform, future research and...