In a sense, it is a daily struggle. Trying to thread the needle. Convince people. How to square international law with global power politics, or a Realpolitik. Recently, I had an interesting Twitter discussion about this very topic, and attended a symposium with the title ‘Liberal Realpolitik?’ At the symposium, the words ’international law’ weren’t even uttered. I may sound like a broken record, but I keep coming back to the one point that I need to get across: compliance and the actual role of law in politics. So, I’m going to dwell on it a little more. Sorry (not really).
A rule-based world order
The denial of the existence of a rule-based order, by for instance Professor Patrick Porter, is always based on a wrong idea of that very notion. Porter starts out promising by making a distinction between law and legalism, but subsequently equates legalism with a rule based order. Legalism is indeed ’the ambition that formal rules can supplant power politics and substitute for wider judgement (…). But ‘rule-based order’ is quite different. The law, as in any society, aims to curtail power; the rule of law versus the rule of men. Law aims to keep the exercise of power within certain bounds, not replace it. The law, as in any society, aims to regulate behavior of its subjects. By providing clarity on what is acceptable behavior, there is a level of certain about everyone’s behavior and thus, order. But in no legal system is there an expectation of one-hundred percent compliance with the law. That’s why there are enforcement mechanisms. A rule based order is like American Football – or any team sport for that matter. There are intricate rules that tell the players what the playing field is; how they can or cannot tackle their opponent; and so on. Referees judge whether rules are broken, if a player is out of bounds, and hand out penalties. All this doesn’t mean that there is an expectation that the game will be played flawlessly. On the contrary.
Yes, yes, there is no world government
In discussing the football analogy, a classic view on law in general always creeps up: the Austinian view. Law is the command of a sovereign that has the ability to enforce that command. No enforcement, no law. So, in football, there are referees judging and imposing penalties, i.e. enforcing the law. By arguing that in international politics there is no such sovereign or referee, Porter and the like are in essence denying international law’s characters as law. Both theory and practice, however, oppose that view. I have mentioned repeatedly in this spot that the rate of compliance with international law’s command is very high. Although there is no world government, and no real, traditional law enforcement mechanisms akin to national ones, there is still enforcement apparently. This includes an amount of self-enforcement. States – even so-called Great Powers – seek to legitimize their actions with the language of international law. But if the use of that language cannot be made plausible, states will be restraint, will have to reconsider their course of action. You could call it cynical, to use the language of law to justify action, but it acts as a restraint nonetheless.
Legality v. legitimacy
Can the observance of law lead to absurd, and unacceptable consequences? Yes, of course, again, as in any society. Especially in foreign policy, with the admitted flaws of the international order (looking at you, UN Security Council), legality can become an obstacle to legitimate actions. And in the twenty-first century, in the face of humanitarian crises, that tension has become more apparent. But does that mean that the baby should be thrown out with the bathwater? Is the fact that powerful countries can make legitimacy override legality a sign that there is no rule-based order? Out of new challenges to the legal order, issues of legitimacy are the impetus for new legal principles and interpretations, not to discard the legal order all together. And there is no proof that states want to do away with international law. Because new law always comes out of legitimacy and new developments, through the dirty process of politics.
The rule-based order protects states
Porter’s example of Canada refusing to arrest George Bush at the behest of Amnesty International, displays also a profound lack of knowledge and understanding of international law. A rule-based order, as understood by Porter, would negate the freedom of states to have their own foreign policy. This is manifestly wrong. Because, on the contrary, international law actually strives to guarantee that each state can have its own foreign policy. The principles of the equality of states, self-determination, non-intervention, and the very notion of sovereignty itself guard the freedom of each state to chart its own course. Sure, before you get all steamy, reality is more subtle than that. I know, but can you imagine how nasty the rich and powerful or the schoolyard bullies would be without any rules at all?