Although both the League of Nations and the Permanent Court of International Justice were rejected by the U.S. Senate, Boyle shows how the early governance of these institutions—precursors, respectively, to the United Nations and the International Court of Justice—informed later efforts to reduce and regulate transnational threats and the use of military force. Delving into such topics as the United States and its initial stance of neutrality in World War I and its imperial policy toward Latin America and the Caribbean, Boyle offers detailed readings of the relevant treaties, tribunals, and conferences, and assesses the political actors involved. Taking up the legalist point of view, he discusses the codification of customary international law, the obligatory arbitration of international disputes, and the creation of a new regime for the settlement of such disputes.
Boyle has provided in Foundations of World Order a compelling portrait of the relationship between political power and law, and of the impact of these forces on U.S. diplomacy. This volume will serve as a valuable resource to students, scholars, and practitioners of international law; it will also be of great interest to historians and political scientists engaged with issues of U.S. foreign policy and diplomatic history.
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About the Author
Francis Anthony Boyle is Professor of International Law at the University of Illinois. A highly visible actor in the international arena, he has served as legal advisor to the Palestinian Delegates in the Middle East peace negotiations, as well as to Bosnian President Alija Izetbegovic. Boyle is the author of numerous books, including The Bosnian People Charge Genocide and World Politics and International Law, also published by Duke University Press.
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Foundations of World Order
The Legalist Approach to International Relations (1898-1922)
By Francis Anthony Boyle
Duke University PressCopyright © 1999 Duke University Press
All rights reserved.
The Legalist Approach to International Relations
The Gospel According to Political Realism
A cardinal tenet of the "realist," or power politics, school of international political science is that international law and international organizations are irrelevant in conflicts between states over matters of vital national interest; that is, issues of high international politics concerning the very survival of nation-states, the international system, and the human race itself. According to the political realists, considerations of international law do not and should not intrude into such areas. If they do, it should be only to the extent that they serve as a source for the manufacture of ad hoc or ex post facto justifications for decisions taken on the basis of antinomial factors such as Machiavellian power politics and national interest. In the realist view of international relations, international law is devoid of any intrinsic significance within the utilitarian calculus of international political decision making.
According to the realists, international law, morality, ethics, ideology, and even knowledge itself are mere components in the power equation, devoid of noninstrumental significance or prescriptive worth, subject to compulsory service as tools of power when deemed necessary for the vital interests of the state. There are no barriers to the acquisitive nature of the nation-state beyond its own inherent limitations and those constraints imposed on it by the international political milieu. Consequently, the analysis of international relations must concentrate exclusively on the dynamics of power politics and national interest.
The reasons responsible for the realists' negative perception of international law and organizations are more the product of metaphysical speculation than solid empirical research. Realists suppose the nations of the world survive precariously in the Hobbesian state of nature, where the life of states is said to be "solitary, poor, nasty, brutish, and short." In this world there is 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.
According to the realists, the acquisition of power and aggrandizement by one state 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'état, totalitarianism, and nuclear weapons must become the litmus test for the validity of humankind's political, philosophical, moral, and legal presuppositions. International law therefore becomes irrelevant to those matters which count for something in international relations; and it will not become relevant to international politics in the foreseeable or even the distant future.
According to this realist credo, statesmen 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 major powers. For historically, whenever statesmen have in good faith interjected determinative considerations of international law and organizations into attempted solutions for the monumental problems of international politics, the probability that violence, war, defeat, death, and destruction would ensue was supposedly increased. Realists' primary case in point is President Woodrow Wilson's approach to international relations after the outbreak of the First World War.
The Straw Man of LegalismMoralism
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 is the speech that contains the fabled Fourteen Points, the last of which laid the cornerstone for the League of Nations, the ill-fated predecessor to the United Nations. In that speech and its successors Wilson emphatically decreed the death of Machiavellian power politics and all its essential accoutrements for the postwar world: the balance of power, secret diplomacy, trade barriers, armament races, the denial of national self-determination, etc.
This outmoded and dangerous set of interconnected principles for the conduct of international relations had created such cataclysmic consequences that it had to be replaced completely by an essentially different system based on antithetical operational dynamics: international law and organizations, 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. The "Old World" of barbaric power politics was to be left behind as an evolutionary stage in the human condition to which, like Rousseau's state of nature, humankind would never return.
Unfortunately, the world of power politics returned just two decades later. The political realists laid the blame for the Second World War on the doorstep of Wilson and those Western statesmen who were said to have adopted his "legalist-moralist" approach to the conduct of international relations during the interwar period. According to the realists, these Western leaders had neglected, condemned, and repudiated the techniques of power politics in favor of an anti-power politics approach to international relations when the exact opposite should have been done.
For the Treaty of Versailles, and especially its first part, the Covenant of the League of Nations, were not really the perfect incarnations of truth, justice, peace, and righteousness they were said to be by the leaders of the Allied and Associated Powers. Rather, these were mere instrumentalities of power politics designed by the victorious nations of the First World War to secure and perpetuate the favorable political, economic, and military status quo after the armistices ending the Great War with the maximum possible degree of legal and institutional coercion and control. This treaty was imposed vi et armis in contravention of Wilson's express promises given to induce surrender in the Fourteen Points address and subsequent addresses. If the people of the world believed anything else, then they had been sorely deluded by the ideological rhetoric deceptively manipulated by their own leaders to fan the flames of patriotic fervor in order to hasten the war to its successful conclusion.
If the victors of Versailles intended to keep their ill-gotten gains, the realists said, they had to be willing to employ military force against a predictably revanchist Germany whenever the latter attempted to resist the terms of the so-called peace. But the Western democracies lacked the requisite Nietzscheian will to power. Instead of fighting to preserve their hegemony, they preferred to trust in their own illusions. They put their faith into such meaningless pronouncements as Wilson's Fourteen Points, the Kellogg-Briand Pact, and its corollary, the Stimson Doctrine; into the ineffectual organs of the League of Nations and the Permanent Court of International Justice; into vapid and useless legalist-moralist doctrines such as neutrality, disarmament, arbitration, and adjudication; into the codification of international law and the formulation of a definition of aggression. Perhaps most egregiously of all, Western statesmen actually believed in the existence of a beneficent world public opinion that would somehow magically will the world on the path toward peace.
According to the realists, if Western statesmen had been attentive to the historical imperatives of power politics, and not seduced by the chimerical allurements of international law and organizations, the Second World War might never have happened. Or else it would have occurred in the mid-1930s when the devastation might have been far less. They could have fought the war on their own terms and at the time of their own choice, not those of their natural adversaries. The Western democracies had only themselves to blame for the Second World War as it actually transpired.
Furthermore, the political realists argued, faced with a "communist threat" in the aftermath of World War II akin to the fascist threat beforehand, the United States must repudiate its deeply ingrained legalist-moralist approach to international relations in favor of pure Machiavellian power politics in order to survive its confrontation with the Soviet bloc during the so-called cold war. In the political milieu of the cold war, the Western democracies could not repeat the near-fatal mistake they had made after the termination of the First World War—that is, reliance on the fictitious and fatuous strength of international law and organizations to preserve world peace—if they wished to avoid a suicidal Third World War.
This "gospel" according to political realism has exercised a decisive impact on the formulation and conduct of U.S. foreign policy from the outset of the cold war, through its subsequent course of development, and even until today in its aftermath. Indeed, political realism still dominates the U.S. foreign policy decision-making establishment despite the collapse of the Warsaw Pact and the disintegration of the Soviet Union. And there is scant evidence of any major reevaluation of the utility of political realism for the conduct of U.S. foreign policy as it approaches the next millennium.
International Legal Positivism
In support of their gospel, the political realists constantly invoke George Santayana's hackneyed saying: "Those who cannot remember the past are condemned to repeat it." Those who misinterpret the past are just as likely to repeat it. For, contrary to the underlying assumptions of contemporary international political scientists, the U.S. "legalist" approach to international relations did not begin during or immediately after the outbreak of the First World War, but well before it. This historical oversight has led political scientists to commit the grievous analytical error of confusing and compounding positivist international legal studies with the pursuit of international morality in order to create some phantasmagorical legalist-moralist straw man warranting condemnation for the Machiavellian "sins of princes" alleged above. There has been no monolithic U.S. legalist-moralist approach to world politics during the twentieth century. This is precisely because a modern legalist approach to international relations was purposefully designed and established to function in a manner diametrically opposed to a moralist or moralistic attitude toward foreign affairs.
This self-conscious differentiation of law from morality by turn-of-the-century American international lawyers was explicitly intended to surmount the objections of John Austin, who denied the existence of international law as real "law" and maintained instead that international law represented nothing more significant than the "rules of positive morality." In the late nineteenth and early twentieth centuries, American international lawyers were vigorously engaged in the task of sharply distinguishing a "scientific" or "positivist" approach to the study of international law from its Grotian natural-law heritage and proclivities. They wanted at last to definitively repudiate those elements of their Grotian past which they believed preached international morality under the guise of international law that was piously represented as the incarnation of natural law. As these international legalists saw it, international legal studies had to step irrevocably forward into the twentieth century by developing an actual science of public international law based on a positive approach that was antithetical to the content and methodology of outmoded natural-law and natural-right theories. Continued reliance on such amorphous concepts by the international legal profession would only provide ammunition for philosophical assault to Austin's omnipresent protégés.
At the outset of the twentieth century, the classic "paradigm" for international legal positivism—which still dominates the profession after almost ninety years—was expounded in the second volume of the American Journal of International Law (1908) by the renowned Lassa Oppenheim, Whewell Professor of International Law at the University of Cambridge, the guru of the early U.S. legalists. A "positive" method had to be based on the extant and recognized rules of international law as set forth in the customary practice of states and in the formal conventions concluded between them, instead of on philosophical speculations about some nonexistent law of nature or natural law. The former facts of international life must never be distorted by the latter hypotheses about what international law "ought" to be.
A true international legal positivist must perform seven tasks in order to promote the science of public international law: (1) exposition of existing rules of law, (2) historical research, (3) criticism of existing law, (4) preparation of codifications, (5) maintaining the distinction between old customary law and new conventional law, (6) fostering international arbitration, and (7) popularization of public international law. The American legalists truly believed that domestic public opinion could influence governments in favor of promoting international law and organizations.
This positivist methodology did not preach that international law should never concern itself with the promotion of moral values. Rather, it was premised on the forthrightly admitted assumption that international legal positivism—as opposed to the Grotian natural-law tradition—constituted the superior means to progress toward the Aristotelian "final cause" of international legal studies: preservation of peace among nations to the greatest degree possible under the given historical circumstances. International legal positivism was said to be more conducive to interstate agreement on current and proposed rules of international behavior than was the dogma of Grotian natural-law morality, whose reputed tenets invariably tried to mask perceived national interests and received national prejudices. International legal positivism could therefore help diminish the inevitable friction, and thus ameliorate the unavoidable conflicts between states in their conduct of international relations.
At this time in world history, war, imperial conquest, and the threat and use of force were accepted facts of international life to which the rules of public international law were quite readily accommodated. The purpose of international law was not yet perceived by Americans to be the outlawing of these manifestations of interstate violence, but more simply to reduce their incidence, mitigate their fury, and limit their scope so as to protect neutrals—especially the United States—and thus to prevent the development of a worldwide conflagration. International law was never perceived to be a transcendent end unto itself, but only a means to achieve the ultimate goal of peace in the human condition. The institution of a more just condition in relationships between states would further the maintenance of world peace and thus contribute to the promotion of all human values.
Furthermore, the promotion of international law and organizations was ideally suited to achieving the objectives of a U.S. foreign policy that was predicated on the twin assumptions of maintaining isolationism in peace and preserving neutrality during war vis-à-vis the great powers of Europe and Asia. In this regard, that which was just for the United States and that which was expedient coincided. In an era when the United States was not yet the regime theorist hegemon, a legalist approach to international relations made perfect sense. During the period from 1898 to 1922, the U.S. foreign policy establishment adhered to the proposition that international law and organizations were effective means by which to further the country's national interest. Indeed, the promotion of international law and organizations was defined as a "vital interest" of the United States during this era. In both the literature and the practice of the day promoting international law and organizations was placed on a par with the Monroe Doctrine in terms of their importance for the formulation and conduct of U.S. foreign policy.
The Sanction behind International Law
From the perspective of turn-of-the-century international legal positivism, Austin committed a serious methodological error when he mistakenly assumed that international law and municipal law functioned in a similar manner. As the early U.S. legalists saw it, there was a clear-cut distinction between the two systems. The former was essentially one of customary law; the latter was characterized primarily as one of statutory law. Obviously the operational features of each system should be fundamentally different. An analyst cannot profitably evaluate the effectiveness of international law using standards and techniques derived from and applicable to municipal legal systems. This early legal positivist critique can be corroborated by the literature of contemporary international political science examining the so-called level-of-analysis problem: namely, that the functional dynamics of international relations in comparison to domestic affairs are so basically dissimilar that they cannot properly support the delineation of useful comparative analogues.
Excerpted from Foundations of World Order by Francis Anthony Boyle. Copyright © 1999 Duke University Press. Excerpted by permission of Duke University Press.
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