World Politics and International Law

by Francis Anthony Boyle

Overview

This work tries to bridge the gap between international lawyers and those political scientists who write about international politics. In the first part, the author discusses the influence of Professor Morgenthau's realist school on the current thinking of political scientists and the abandonment of this school by its originator in the last years of his life. The author concludes that the best way to test the validity of different approaches is to discuss various international crises in the light of contrasting theories and to analyze each situation from both the legal and political points of view. In particular, he tries to ascertain to what extent vital national interests could be accommodated within an international legal framework, or could require a distortion of international rules in order to achieve national objectives.

In the second part, the author dissects the Entebbe raid, where Israeli forces rescued a group of hostages being detained by hijackers at a Ugandan airport. His analysis shows the deficiencies of the international system in dealing with such a complex issue, where several contradictory principles of international law could be applied and were defended by various protagonists.

The third part starts with a parallel problem--the Iranian hostages crisis, where a group of U.S. officials found themselves in an unprecedented situation of being captured by a band of students. A critical analysis of the handling of this problem by the Carter Administration is followed by vignettes of other crises faced by the Administration and by its successor, the Reagan Administration. This part is less analytical and more prescriptive. The author is no long satisfied with pointing out what went wrong; instead, he departs from the usual hands-off policy of political scientists and tries to indicate how much better each situation could have been handled if the decision makers had been paying more attention to international law and international organizations. The theme is slowly developed that in the long run national interest is better served not by practicing power politics and relying on the use of threat of force but by strengthening those international institutions that can provide a neutral environment for first slowing down a crisis and then finding an equitable solution acceptable to most of the parties in conflict.

The value of this book lies primarily in giving the reader a real insight into several important issues of today that are familiar to most people only from newspaper headlines and television news. While not everybody can agree with all his criticisms of the mistakes of various governments, there is an honest attempt by the author to present issues impartially and to let the blame fall where it may. Being both an international lawyer and a political scientist, the author has had the advantage of combining the methodology of these two social sciences into a rich tapestry with some startling shades and tones.

Product Details

ISBN-13:	9780822306559
Publisher:	Duke University Press
Publication date:	04/23/1985
Series:	Duke Press Policy Studies Series
Pages:	380
Product dimensions:	6.00(w) x 9.00(h) x 0.78(d)

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World Politics and International Law

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By Francis Anthony Boyle

Duke University Press

Copyright © 1985 Duke University Press
All rights reserved.
ISBN: 978-0-8223-0655-9

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CHAPTER 1

The "Irrelevance" of International Law and Organizations

The Problem

From the moment of its creation as an intellectual discipline in the aftermath of the Second World War, international political science has maintained that international law and organizations are essentially irrelevant to a proper understanding of international politics and consequently are irrelevant to the progressive development of international political theory. Historically this discipline has repudiated both the descriptive validity and the prescriptive worth of international legal considerations for that sector of international relations dealing with matters of "vital national interest" or of "high international politics." Now, after nearly four decades during which these assumptions have determined the basic course of thought about international relations in the United States of America, it is high time for someone who is both a political scientist and an international lawyer to reexamine them.

Perhaps the foremost example of the tenacity of this belief can be found in the collection of essays written in honor of Professor Leo Gross of the Fletcher School of Law and Diplomacy entitled The Relevance of International Law (1971), which was edited by two former colleagues, Professors Karl Deutsch and Stanley Hoffmann of the Harvard Government Department. The reputed purpose of the book was to analyze the relevance of international law to the problems of war and peace, to the challenge Third World countries present to the stability of the international system, to the growth of international organizations, and to the consequent evolution of "world order." Yet a lead essay by Hoffmann strove mightily to refute what was supposed to be the book's main proposition, namely, that international law and organizations were indeed relevant to international politics and thus to international political science.

There and elsewhere Hoffmann attributed responsibility for this situation to the alleged feet that contemporary international affairs manifest a "revolutionary" and "heterogeneous" nature as opposed to a "moderate" and "homogeneous" one due to a variety of political, economic, cultural, demographic, and scientific factors. Such factors include dissolution of the classical balance of power, worldwide revolutionary insurgency, infinitely destructive nuclear weapons systems, the relentless power of nationalistic fervor, division of the world into hostile ideological camps, uncurbed exponential population growth, and unremitting technological and industrial innovation. These elements were said to interact synergistically to create an international political environment irremediably inhospitable to the application, growth, and well-being of international law. The irrelevance of international law and organizations would persist until the world returned to the conditions of relatively simple placidity that supposedly characterized its formative period. In other words, international law and organizations would not become relevant to international politics in the foreseeable or even distant future.

Another variant on the same theme maintains that there exists a mélange of inherently debilitating characteristics so fundamental to legal education and training, to the processes of legal reasoning, to the practice of law, and to the legal profession as a whole that they seriously impede if not prevent a lawyer qua lawyer from ever becoming a decent let alone consummate statesman. To enumerate just a few:

1. The narrow-minded development of legal principles through the inductive technique of analogical reasoning

2. The piecemeal accumulation of such principles into a consequentially formalistic doctrine of little practical utility

3. The disregard of crucial facts in search for the broad principle, or vice versa

4. The rigidity of legal analysis and methodology

5. The stubborn insistence upon rules, agreements, and expectations when circumstances have been materially altered so as to render them obsolete or useless

6. The play-it-by-the-book attitude and innate conservatism this fosters

7. The stifling of intuition, creativity, and initiative, and, worst of all

8. A preference for manipulation of a given set of rules within an established game rather than the creation of a new game with an entirely different set of rules.

These alleged constituents of the legal mind are postulated to be thoroughly inadequate to achieve success and may even be counterproductive when brought to bear upon international political problems. For by definition solutions to the latter are said to require freedom and agility in thought and analysis, imagination, flexibility, a high tolerance for risk taking, and adroitness at rule making, rule breaking, and game invention. In comparison to international political scientists, such qualities are lacking or are at least intolerably deficient in the international legal profession.

In essence, this critique reduces itself to the dubious proposition that lawyers are not by nature opportunistic and unprincipled enough to function well in an international political arena where Machiavellian power politics and raison d'e'tat are the order of the day. Henry Kissinger's classic exposition of this thesis has become standard textbook reading for introductory courses in international political science, where for over a generation students have been successfully indoctrinated to disbelieve the utility of international law and organizations for the conduct of international relations. It is apparent, however, that Kissinger spent only one year (1954—55) as a special student at the Harvard Law School and never practiced law for a big corporate law firm. From his "realist" perspective, Kissinger's deep admiration for Dean Acheson as one of the great American secretaries of state is an anomaly achieved in spite of, rather than because of, the latter's professional origins as a lawyer. To an international lawyer, however, the reason for Acheson's superlative performance in foreign affairs is intuitively obvious. As Professor Harold Berman of the Harvard Law School once said to this author: "Anyone who can become a senior partner at Covington & Burling must a fortiori be a superb realist!"

As Qualified

Admittedly, in affirming the irrelevance of international law and organizations, political scientists do not intend to imply that considerations relating to them play absolutely no important part in the conduct of international relations by the world's governments. Political scientists are astute enough to recognize that international law is pervasive in both its presence and its effects throughout the international system. It directly regulates or else indirectly seeks to influence (whether successfully or not will be examined below) the entire course of international relations, from the most seemingly insignificant of matters, all the way along the continuum of international political importance to the macrocosmic questions of war or peace, and life or death for peoples, states, and civilizations.

Within this scheme of things, it is also undeniable that international organizations play a significant role. International organizations, from the smallest to the United Nations itself, are tangible manifestations of the effective operation of international law. International organizations come into existence, grow, prosper, and serve mankind because their respective founding states sign multilateral treaties that become their constitutional documents, and subsequent members accede to the principles of law enunciated therein. International organizations are the products of international law.

International political scientists are willing to concede these basic points. Indeed, a separate school of international political science has developed out of this concession—the so-called functional-integrationist approach to international relations. This approach was best exemplified by Ernst Haas's definitive study of the International Labor Organization in Beyond the Nation-State (1964). The title of Haas' work epitomized the essence of the functional-integrationist position. Through the elaboration of a complicated international, supranational, subnational, and interpersonal network of political, economic, cultural, and educational relationships, the international community would gradually, almost ineluctably, be drawn closer together to the point where international organizations could take over the most significant functions presently performed by governments of nation states. Eventually the nation state as known today would, to use Engels' descriptive terminology, "wither away" because it would prove superfluous to any type of metafunctional activity. It would be replaced altogether as the fundamental unit of global political organization by a centralized world government or reduced to the status of a semi-sovereign constituent unit in a federal or confederal world state analogous to the position occupied by the states of the American Union under the Constitution or the Articles of Confederation. Predictably, international law is destined to play a central role in this metamorphosis of an international community into a transnational or universal society.

Forced by their functional-integrationist colleagues to concede the relevance of international law and organizations to measures requiring cooperation in international relations, international political scientists refocused their intellectual assault by restricting their critique to matters of serious dispute between nations. Therefore, when international political scientists assert the irrelevance of international law and organizations, they are not concerned with the vast multitude of relatively inconsequential international relations governed by the international legal order. Instead, they refer to that portion of international relations which, they claim, escapes the effective control of international law and organizations altogether—conflict over matters of "vital national interest" and "high international politics." Needless to say, these are terms of art whose essence, like beauty, resides within the eye of the beholder.

In the opinion of most political scientists, international law might indeed be pertinent to, if not determinative of, the microcosmic elements of international relations. But such relevance, when multiplied by the minimal importance of these matters, becomes, overall, inconsequential when compared to the irrelevance of international law and organizations to conflicts involving vital national interests. International law is therefore irrelevant to those matters which count the most, or more forcefully, to those matters which count for everything, in international relations.

Political Realism

This denial of the relevance of international law and organizations to "high" international politics is not characteristic of any one or more schools of international political science, but is endemic to most of the profession. The genesis of modern international political science is attributable to an extreme negative reaction to the so-called legalist-moralist or Utopian approach to international affairs, said to have influenced the conduct of international relations by the United States and the other Western democracies during the period between the First and Second World Wars. International political science originated from this "realist" or power-politics-oriented school of international relations. Its best exemplars were the writings of scholars such as Edward Hallett Carr and Hans Morgenthau, and the careers and publications of statesmen like Dean Acheson, George Kennan, and later Henry Kissinger.

In the realist view of international relations, international law and organizations totally lack any intrinsic significance within the utilitarian calculus of international political decision making. International law, morality, ethics, ideology and even knowledge itself are mere components in the power equation, devoid of non-instrumental significance or prescriptive worth, subject to compulsory service as tools of power when deemed necessary for the vital interests of state. There are no barriers to the acquisitive nature of the nation state beyond its own inherent limitations and those constraints imposed upon it by the international political milieu. Consequently, the analysis of international relations must concentrate exclusively upon the dynamics of power politics and the machinations of that metaphysical entity known as the "balance of power." Considerations of international law do not and should not intrude into such areas. Or, if they do intrude, it should be only for the instrumental purpose of serving as a source for the manufacture of ad hoc or ex post facto justifications for decisions taken on the basis of antinomian factors such as Machiavellian power politics and national self-interest.

The reasons responsible for the realists' extremely negative perception of international law and organizations are more the product of metaphysical speculation than solid empirical research. The nations of the world are theorized to survive precariously in the Hobbesist state of nature, where life is "solitary, poor, nasty, brutish, and short." Here there exists no law or justice, no conception of right or wrong, no morality, but only a struggle for survival in a state of war by every state and against every state. The acquisition of power and aggrandizement at the expense of other states in a quest for unattainable absolute national security is the fundamental right, the fundamental law, and the fundamental fact of international politics. Sheer physical survival in a Machiavellian world of power politics, raison d'e'tat, totalitarianism, and nuclear weapons must be the litmus test for the validity of man's political, philosophical, moral, and legal presuppositions.

Statesmen, it is argued, who disobey the "iron law" of power politics at the behest of international law and organizations invite destruction at the hands of aggressors and thereby facilitate the destruction of third parties which, in today's interdependent world, cannot realistically hope to remain neutral in a serious conflict between great powers. Historically, the realists assert, whenever statesmen have in good faith interjected determinative considerations of international law into attempted solutions for the monumental problems of international politics, the probability that violence, war, defeat, death, and destruction would ensue was magnitudinally increased. For the realists the primary case in point was said to be President Woodrow Wilson's approach to international affairs after the outbreak of the First World War.

The Realist Critique of "Legalism-Moralism"

On January 8, 1918, President Wilson delivered an address to a joint session of Congress in which he set forth the war aims and peace terms of the U.S. government for ending the Great War. This was the speech that contained the fabled Fourteen Points, the last one of which laid the cornerstone for the League of Nations, the ill-fated predecessor to the United Nations. In that speech Wilson emphatically decreed the death of Machiavellian power politics and all its essential accouterments for the postwar world: the balance of power, secret diplomacy, trade barriers, armament races, and the denial of self-determination. The system of power politics, based upon an outmoded and dangerous set of interconnected principles for the conduct of international relations, had resulted in such cataclysmic consequences that it had to be replaced completely by a system consisting of antithetical operational dynamics: international organizations and law, collective security, open diplomacy, free trade, freedom of the seas, arms reduction and disarmament, and national self-determination. A new era of world history was to dawn with the League of Nations, and the old world of power politics was to be left behind as an evolutionary stage of barbarism in the human condition to which, like Rousseau's state of nature, mankind would never return.

(Continues...)

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Table of Contents

Contents

Foreword,
Acknowledgments,
Part One The Schism between International Legal Studies and International Political Science,
1 The "Irrelevance" of International Law and Organizations,
2 The Real Origins of International Legal Positivism,
3 The Achievements of International Legal Positivism,
4 International Legal Positivism after the Outbreak of World War I,
5 Functionalism as a Substitute for Positivism,
Part Two International Law in Time of Crisis from the Entebbe Raid to the Hostages Convention,
6 A Functionalist Analysis of International Law and Politics,
7 The Function of Decision Performed by International Law and Organizations,
8 The Function of Adjudication as Performed by the U.N. Security Council,
9 The Function of Resolution as Performed by the U.N. Security Council,
10 The Function of Redefinition as Performed by the U.N. General Assembly,
11 The Increments of International Law and Politics,
Part Three International Law and Organizations as a Basis for Conducting American Foreign Policy,
12 A New Philosophy for American Foreign Policy,
13 The Definitional Context of the Iranian Hostages Crisis,
14 A Functionalist Approach to U.S. Crisis Management Decision Making,
15 The Carter Administration's Responsibility for the Death of Detente,
16 Restoring Persian Gulf Security,
17 The Israeli Invasion of Lebanon,
18 The Future of Nuclear Arms Control between the Superpowers,
19 International Lawlessness in the Caribbean Basin,
20 Machiavellianism Destroys Constitutionalism,
Notes,
Index,