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International Law and Assumptions about the State System

Published online by Cambridge University Press:  18 July 2011

William D. Coplin
William D. Coplin
Affiliation:
Wayne State University
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Extract

Most writers on international relations and international law still examine the relationship between international law and politics in terms of the assumption that law either should or does function only as a coercive restraint on political action. Textbook writers on general international politics like Morgenthau, and Lerche and Said, as well as those scholars who have specialized in international law like J. L. Brierly and Charles De Visscher, make the common assumption that international law should be examined as a system of coercive norms controlling the actions of states. Even two of the newer works, The Political Foundations of International Law by Morton A. Kaplan and Nicholas deB. Katzenbach and Law and Minimum World Public Order by Myres S. McDougal and Florentino P. Feliciano, in spite of an occasional reference to the non-coercive aspects of international law, are developed primarily from the model of international law as a system of restraint. Deriving their conception of the relationship between international law and political action from their ideas on the way law functions in domestic communities, most modern writers look at international law as an instrument of direct control. The assumption that international law is or should be a coercive restraint on state action structures almost every analysis, no matter what the school of thought or the degree of optimism or pessimism about the effectiveness of the international legal system. With an intellectual framework that measures international law primarily in terms of constraint on political action, there is little wonder that skepticism about international law continues to increase while creative work on the level of theory seems to be diminishing.

Type
Research Article
Information
World Politics , Volume 17 , Issue 4 , July 1965 , pp. 615 - 634
Copyright
Copyright © Trustees of Princeton University 1965

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References

1 Morgenthau, Hans J., Politics Among Nations (New York 1961), 275–311.Google Scholar The entire evaluation of the “main problems” of international law is focused on the question of what rules are violated and what rules are not.

2 Lerche, Charles O. Jr., and Said, Abdul A., Concepts of International Politics (Englewood Cliffs, N.J., 1963), 167–87.Google Scholar That the authors have employed the assumption that international law functions as a system of restraint is evident from the title of their chapter which examines international law, “Limitations on State Actions.”

3 Brierly, J. L., The Law of Nations (New York 1963), 1.Google Scholar Brierly defines international law as “the body of rules and principles of action which are binding upon civilized states in their relations. …”

4 De Visscher, Charles, Theory and Reality in Public International Law (Princeton 1957). 99–100.Google Scholar

5 Kaplan, Morton A. and Katzenbach, Nicholas deB., The Political Foundations of International Law (New York 1961), 5.Google Scholar In a discussion of how the student should observe international law and politics, the authors write: “To understand the substance and limits of such constraining rules (international law), it is necessary to examine the interests which support them in the international system, the means by which they are made effective, and the functions they perform. Only in this way is it possible to predict the areas in which rules operate, the limits of rules as effective constraints, and the factors which underlie normative change.” Although the authors are asking an important question—“Why has international law been binding in some cases?”—they still assume that international law functions primarily as a direct restraint on state action. For an excellent review of this book, see Tucker, Robert W., “Resolution,” Journal of Conflict Resolution, VII (March 1963), 69–75.CrossRefGoogle Scholar

6 McDougal, Myres S. and Feliciano, Florentino P., Law and Minimum World Public Order (New Haven 1961), 10.Google Scholar The authors suggest that if any progress in conceptualizing the role of international law is to be made, it is necessary to distinguish between the “factual process of international coercion and the process of authoritative decision by which the public order of the world community endeavors to regulate such process of coercion.” This suggestion is based on the assumption that international law promotes order primarily through the establishment of restraints on state actions.

7 There are a few writers who have tried to approach international law from a different vantage point. For a survey of some of the other approaches to international law and politics, see Barkun, Michael, “International Norms: An Interdisciplinary Approach,” Background, VIII (August 1964), 121–29.CrossRefGoogle Scholar The survey shows that few “new” approaches to international law have developed beyond the preliminary stages, save perhaps for the writings of Northrop, F. S. C.. Northrop's works (e.g., Philosophical Anthropology and Practical Politics [New York 1960], 326–30)Google Scholar are particularly significant in their attempt to relate psychological, philosophical, and cultural approaches to the study of law in general, although he has not usually been concerned with the overall relationship of international law to international political action. Not mentioned in Barkun's survey but important in the discussion of international law and politics is Hoffmann, Stanley, “International Systems and International Law,” in Knorr, Klaus and Verba, Sidney, eds., The International System (Princeton 1961), 205–38.Google Scholar However, Hoffmann's essay is closer in approach to the work by Kaplan and Katzenbach than to the approach developed in this article. Finally, it is also necessary to point to an article by McWhinney, Edward, “Soviet and Western International Law and the Cold War in a Nuclear Era of Bipolarity: Inter-Bloc Law in a Nuclear Age,” Canadian Yearbook of International Law, 1 (1963), 40–81.Google Scholar Professor McWhinney discusses the relationship between American and Russian structures of action, on the one hand, and their interpretations of international law, on the other. While McWhinney's approach is basically similar to the one proposed in this article in its attempt to relate international law to politics on a conceptual level, his article is focused on a different set of problems, the role of national attitudes in the contemporary era on ideas of international law. Nevertheless, it is a significant contribution to the task of analyzing more clearly the relationship between international law and politics.

8 See Falk, Richard A., “The Adequacy of Contemporary International Law: Gaps in Legal Thinking,” Virginia Law Review, L (March 1964), 231–65CrossRefGoogle Scholar, for a valuable but highly critical analysis of contemporary international legal theory.

9 See Almond, Gabriel A. and Coleman, James S., eds., The Politics of the Developing Areas (Princeton 1960), 26–31Google Scholar, for an explanation of the concept of socialization.

10 The following discussion of the assumptions of the state system is brief, since students of international politics generally agree that the three assumptions listed have structured most of the actions of states. This agreement is most complete concerning the nature of the “classical” state system. The author is also of the opinion that these assumptions continue to operate today in a somewhat mutated form. (See his unpublished manuscript “The Image of Power Politics: A Cognitive Approach to the Study of International Politics,” chaps. 2, 4, 8.) Note also the agreement on the nature of classical ideas about international politics in the following: Haas, Ernst B., “The Balance of Power as a Guide to Policy-Making,” Journal of Politics, XV (August 1953), 370–97CrossRefGoogle Scholar; Kaplan, Morton A., System and Process in International Politics (New York 1957), 22–36Google Scholar; and Vose Gulick, Edward, Europe's Classical Balance of Power (Ithaca, N.Y., 1955).Google Scholar

11 See Gulick, 34; and for a discussion of the principles of moderation, flexibility, and vigilance, ibid., 11–16.

12 For the effects of the two treaties, see Petrie, Charles, Diplomatic History, 1713 1939 (London 1949), IIIGoogle Scholar; Jayne Hill, David, A History of Diplomacy in the International Development of Europe (New York 1924), 603–6Google Scholar; and Nussbaum, Arthur, A Concise History of the Law of Nations (New York 1961), 116.Google Scholar

13 E.g., The Treaty of Ryswick, 1697 in Browning, Andrew, ed., English History Documents, VIII (New York 1963), 881–83.Google Scholar

14 Treaty of Ryswick, Article 1, in ibid.

15 Barrier Treaty of 1715 5, Article 1, in ibid., Vol. X.

16 Treaty of Vienna, 1713, in ibid., Vol. VIII.

17 Treaty of Quadruple Alliance, 1815, in ibid., Vol. XI.

18 Gross, Leo, “The Peace of Westphalia, 1648–1948,” American Journal of International Law, XLII (January 1948), 20–40.CrossRefGoogle Scholar

19 For a treaty which expressed the necessity of keeping prior obligations, see Treaty of Aix-la-Chapelle, 1748, in Browning, ed., Vol. X.

20 See Herz, John H., International Politics in the Atomic Age (New York 1962), 53Google Scholar, for a discussion of the role of territory in the classical state system and the international legal system.

21 See Hoffmann, 212, 215, for a discussion of the way in which territorial settlements in treaties aided stability within the system. He calls this function part of the law of political framework.

22 E.g., the English and French attitude toward Belgium.

23 For a discussion of the role of neutrality in the balance of power system, see McDougal and Feliciano, 391–413.

24 Oppenheim, L., in Lauterpacht, H., ed., International Law (New York 1948), 1, 507.Google Scholar

25 The attempt to control a “closed sea” was sometimes a bid by a powerful state to freeze the status quo—e.g., Portugal's control of the Indian Ocean in the sixteenth and seventeenth centuries (Nussbaum, 111).

26 Analysts have argued over whether colonialism reduced or exacerbated international antagonism. Without settling the argument, it seems safe to say that the struggle for colonies was a more spectacular and relatively less dangerous system of conflict than was competition for European land.

27 For the relationship of the assumption of statehood and the functioning of diplomatic immunities, see a discussion of the theoretical underpinnings of diplomatic immunities in Kelsey, Ernest L., “Some Aspects of the Vienna Conference on Diplomatic Intercourse and Immunities,” American Journal of International Law, LXXXVIII (January 1962), 92–94.Google Scholar

28 Morgenthau, 547.

29 For a discussion of the precise meaning of these classifications, see Nussbaum.

30 Ibid., 149.

31 Grotius, Hugo, The Rights of War and Peace, ed. with notes by Campbell, A. C. (Washington 1901), 62.Google Scholar

32 Van Bynkershoek, Cornelius, De dominio maris dissertatio, trans, by Van Deman Mogoffin, Ralph (New York 1923), 35.Google Scholar

33 De Visscher, 88. For similar interpretations of classical and pre-twentieth-century theorists, see Schiffer, Walter, The Legal Community of Mankind (New York 1951)Google Scholar, chap. 1; or Corbett, Percy E., Law and Society in the Relations of States (New York 1951).Google Scholar

34 de Vattel, Emeric, The Laws of Nations (Philadelphia 1867), 412–14.Google Scholar

35 Von Martens, G. F., The Law of Nations: Being the Science of National Law, Covenants, Power & Founded upon the Treaties and Custom of Modern Nations in Europe, trans, by Cobbett, William (4th ed., London 1829), 123–24.Google Scholar

36 Almost all of the nineteenth-century positivists assumed that relations between nations were systematized enough to allow for a system of rights and duties. E.g., Edward Hall, William, A Treatise on International Law (Oxford 1904), 43–59Google Scholar; Wheaton, Henry, Elements of International Law (Oxford 1936), 75.Google Scholar Wheaton does not discuss duties as such, but when he talks about legal rights he distinguishes between “absolute” and “conditional” rights. According to Wheaton, the “conditional” rights are those resulting from membership in the international legal system. This formulation implies the existence of corresponding duties.

37 See Von Martens, 123–34, for the intellectual and legal problems growing out of the assumption that states may legally maximize power but that they also have a responsibility “to oppose by alliances and even by force of arms” a series of aggrandizements which threaten the community.

38 E.g., Fenwick, Charles G., International Law (New York 1952)Google Scholar, chap. 11.

39 For a survey of current challenges to traditional international law, see Friedmann, Wolfgang, “The Changing Dimensions of International Law,” Columbia Law Review, LXII (November 1962), 1147–65.CrossRefGoogle Scholar Also, see Falk, Richard A., The Role of the Domestic Courts in the International Legal Order (Syracuse 1964), 14–19Google Scholar, for a discussion of the fact that while there is a growing “functional obsolescence” of the state system, the assumptions of the state system continue to operate for psychological and political reasons.

40 E.g., Articles 3 and 4 of the Treaty Establishing the European Coal and Steel Community (April 18, 1951).

41 For an excellent discussion of the legal and political problems related to the question of the “act of state doctrine” in particular, and of territorial supremacy as a concept in general, see Carlston, Kenneth S., Law and Organization in World Society (Urbana, Ill., 1962), 191–93Google Scholar, 266–69. Also, for a discussion of the problem in a larger framework, see Falk, Role of the Domestic Courts. Since World War II, states, especially on the European continent, have found increasingly broader bases to invalidate the effect of foreign laws. Traditionally, states have refused to give validity to the laws of other lands for a small number of narrowly constructed reasons (e.g., refusal to enforce penal or revenue laws). Today many states have declared foreign laws invalid for a variety of reasons, the most important being the formulation that the national court cannot give validity to a foreign law that is illegal in terms of international law (see "The Rose Mary Case,” International Law Report [1953], 316ff.), and the most frequent being a broad interpretation of “sense of public order” (see Domke, Martin, “Indonesian Nationalization Measures Before Foreign Courts,” American Journal of International Law, LIV [April 1960], 305–23CrossRefGoogle Scholar). The most recent case in American practice, the Sabbatino decision (Supplement, International Legal Materials, III, No. 2 [March 1964], 391Google Scholar), appears to reaffirm the traditional emphasis on the territorial supremacy of the national legal order in these matters, but is actually ambiguous. On the one hand, the Opinion of the Court applied the “act of state doctrine” in declaring the Cuban law valid, but on the other hand, the Court stated that “international law does not require application of the doctrine.”

42 For a useful discussion of the relationship between the idea of collective security and the assumption of the balance of power system, see Claude, Inis L., Swords into Plowshares (New York 1962), 255–60Google Scholar; and Herz, chap. 5. It is necessary to make a distinction between the theory of collective security, which certainly would challenge the basic assumptions of the state system, and its operation, which would not.

43 Compare Articles 25–51, or paragraphs 2–7 in Article 2, for the contrast between system-oriented and state-oriented norms.

44 This is not to say that regional organizations do not represent a challenge to the concept of the state on psychological or social grounds. Obviously, the type of allegiance to a United Europe would be different in kind and degree from the traditional allegiance to a European state. However, in terms of the challenge to the legal concept of the state, regional organizations still adhere to the idea that the constituent members are sovereign in their relationship with states outside the organization.

45 See Corbett, 53–56, for a discussion of the place of the individual in classical international law.

46 Most modern writers have noted that the individual no longer stands in relation to international law solely as the object (e.g., Corbett, 133–35, or Friedmann, 1160–62), though they are agreed that, to use Friedmann's words, “the rights of the individual in international law are as yet fragmentary and uncertain.”

47 According to de Ruggiero, Guido, The History of European Liberalism (Boston 1959), 363–70Google Scholar, the liberal conception of the state has always assumed that the individual was the absolute value, though this idea has not always been operative.

48 For an excellent discussion of the role of collective responsibility in international law, see Kelsen, Hans, Principles of International Law (New York 1959), 9–13, 114–48.Google Scholar

49 Although the military struggle today is considered to be only one aspect of the struggle for power, it is the one most closely related to the problem of order in both the classical and the contemporary system, and therefore the most crucial in the relationship between law and politics.

60 See Bowett, D. W., Self-Defense in International Law (Manchester 1958), 156–57Google Scholar; and Nussbaum, 137, 153–55, 171.

51 See Nussbaum, 182–83. Also see Brownlie, Ian, International Law and the Use of Force by States (Oxford 1963), 15–18.CrossRefGoogle Scholar

52 Actually, the range of action provided by the contemporary formulation, especially regarding the authorization in accordance with the United Nations Charter, could be broad and could conceivably take in “balancing” action if the deadlock in the Security Council were broken. The reason for this is the very ambiguous mandate for Security Council action spelled out in the Charter. It is possible under this mandate to call the limited “balancing” action, typical of the eighteenth century, an action taken to counter a “threat to the peace.” Nonetheless, given the current stalemate within the Security Council, and the nature of the General Assembly actions to date, it is safe to conclude that contemporary international law has greatly limited the wide-ranging legal capacity that states once had in deciding on the use of force.

53 See Brownlie, 251–80, for a discussion of the contemporary legal restrictions on the use of force. Also see Kaplan and Katzenbach, 205, for a discussion of the justwar doctrine and its compatibility with the balance of power system.

54 Certainly, technological developments have been primarily responsible for the rejection of war as a typical tool of international power. In this case, as in most, international legal doctrine mirrors the existing attitudes and helps to reinforce them.

55 As in the past, international lawyers are still concerned with definitions and applications of concepts of territorial integrity, self-defense, and domestic jurisdiction, and policy-makers are still motivated by the traditional ideas of state security and power. However, the traditional political and legal symbols have been “stretched” to apply to current conditions. For a development of this position see Coplin, chaps. 4 and 8.

56 E.g., Larson, Arthur, When Nations Disagree (Baton Rouge, La., 1961)Google Scholar; or Clark, Grenville and Sohn, Louis B., World Peace Through World Law (Cambridge, Mass., 1960).Google Scholar These theorists and others who fall under this classification are “radical” in the sense that what they suggest is antithetical to the assumptions of the state system as traditionally developed. These writers are not necessarily Utopian in their radicalism. This is especially true since adherence today to the traditional assumptions might itself be considered a form of (reactionary) radicalism. However, the radical scholars, in the sense used here, are very scarce, especially among American students of international law. Today there is a very thin line separating the few radical scholars from the more numerous radical polemicists of world government.

57 Morgenthau writes (277): “To recognize that international law exists is, however, not tantamount to assessing that … it is effective in regulating and restraining the struggle for power on the international scene.”

58 Carr, E. H., in The Twenty Years' Crisis, 1919–1939 (London 1958), 170Google Scholar, writes: “We are exhorted to establish ‘the rule of law’ … and the assumption is made that, by so doing, we shall transfer our differences from the turbulent political atmosphere of self-interest to the purer, serener air of impartial justice.” His subsequent analysis is designed to disprove this assumption.

59 Kennan, George F., Realities of American Foreign Policy (Princeton 1954), 16.Google Scholar

60 Stone, Julius, Legal Control of International Conflict (New York 1954)Google Scholar, introduction.

61 Corbett, 68–79, 291–92.

62 De Visscher writes (xiv): “International law cannot gather strength by isolating itself from the political realities with which international relations are everywhere impregnated. It can only do so by taking full account of the place that these realities occupy and measuring the obstacle which they present.”

63 The programs of the last two annual meetings of the American Society of International Law exemplify the way in which the concern for reality (as power) has come to dominate international legal theory. In the 1963 program, the relationship between international law and the use of force was not discussed by international legal theorists but by two well-known writers on the role of conflict in international politics. The 1964 program manifested the same tendency. It centered on the question of compliance with transnational law, a topic treated in a sociopolitical framework by most panelists. This point is not to be taken as a criticism of the two programs, both of which were excellent and very relevant, but as proof of the assertion that the mainstream of contemporary theory of international law is significantly oriented to the role of power.

64 Many writers, even realists like Morgenthau (op.cit., 275) and others like McDougal and Feliciano (op.cit., 2–4), decry the modern tendency toward “cynical disenchantment with law,” but it is obvious from their subsequent remarks that they are reacting more against the “utopianism” of the past than the cynicism of the present. There have been a few who have attacked the “realist” position on international law (e.g., Feller, A. H., “In Defense of International Law and Morality,” Annals of the Academy of Political and Social Science, vol. 282 [July 1951], 77–84CrossRefGoogle Scholar). However, these attacks have been infrequent and generally ineffective in starting a concerted action to develop more constructive theory. For another evaluation of the “realist” trend, see Oliver, Covey T., “Thoughts on Two Recent Events Affecting the Function of Law in the International Community,” in Lipsky, George A., ed., Law and Politics in the World Community (Berkeley 1953).Google Scholar