This blog-entry is a shorter version of a paper presented as part of an exchange with Euan MacDonald at the Legal Theory and Philosophy Group-Fiesole (San Domenico) in June 2004. The title of the original paper was, “A science of International relations as a challenge to normative conceptions of international law: Realist Theory of Henry Kissinger”
This blog-entry presents a response to the challenge made recently by Scott in his “The Limits of International Law" by Goldsmith & Posner” . The intention of this blog-entry is, like that of Rapahel’s “More on The Limits of International Law” to elaborate more on the idea of rational choice study of international law. To be precise, I will not directly refer to the theory of rational choice, but, inspired by it, offer another, similar, framework to analyze and study the international arena. I will start off as Stalin but end up as Mickey, or Goofy, some would say.
The main objective of this blog-entry is to challenge the normative theories who consider the international law as being ultimately justifiable by a normative root (modernist or post-modernist same difference). To achieve this goal I will offer an alternative approach, advanced by Henry Kissinger for example, who suggests looking at international law and international order, as a purely scientific discipline that operates within a given set of parameters (i.e. the number of major international players, the availability of resources, the nature of the interplay between the domestic and international sphere for a given international actor etc.). According to the Science of international relations (law) the normative structure of the international law is absolutely contingent not universal.
This does not mean that the science of international relations presents a crude theory deprived of any, hidden normativity. There is something, intrinsically valuable in maintaining the status quo, aiming at power equilibrium, whatever the costs.
Peace can be defined as the normative goal of the international system. Peace is not perceived as a mere avoidance of war (or peace with a small "p"), rather, Peace is marked by certain principles that are not universal but acknowledged within the context of the particular international order. Such understanding of peace is motivated not so much by the conscious moral determination to end all kinds of violence (e.g. Pacifism, religious or secular) but by the action of the states who further their selfish interests, and in this process inevitably strive at achieving the equilibrium. The normative ideall is thus built on the scientific understanding of how the system actually opperates, not deluting itself with the idea of being able to change the nature of system's operation. So defined, science of international relations is not very different from Posner’s and Goldsmith’s idea, since it indirectly recognizes the existence of “coercion”, “coordination” and “cooperation” as regular mechanisms defining international legal order.
The major question of international law (as any law really) is “what can make authority legitimate?” Some believe in universal formula for legitimacy. Others, like Kissinger and the Science of international relations, or possibly Posner and Goldsmith, do not. Legitimacy needs to be generally accepted by all the major powers and it is not to be confused with a quest for peace nor justice. Legitimacy, in the science of international relations is an international agreement about the nature of workable arrangements, permissible aims and methods of foreign policy. All major powers agree about the basic framework of international order so that no state is dissatisfied with it. A state not satisfied with the nature of the order might decide to cure its frustration by embarking on a revolutionary foreign policy. One that decides to proceed in such a direction does not respect the agreed legitimacy.
Principles agreed upon in the international arena within a particular historical framework are to be combined by the system of balance of powers (international equilibrium of power). In such a system, wars still occur but they are fought in the name of the existing structure. Peace that follows is a better expression of the ‘legitimate’ general consensus. To take the example of the period Kissinger’s book is concerned with (Post-Napoleonic Europe 1812-1822), general mark of legitimacy was conservativism, in the sense of prevention of social upheaval not because of some ever lasting universal principle but for the fact that it was the common denominator of the group of major powers forming the Holly Alliance that defeated Napoleon. The point of the system of equilibrium (de facto multilateralism as opposed to institutional multilateralism of the post WW II, until Kosovo, system) was not only about marshalling a superior force but also by obtaining a voluntary submission to his version of legitimacy. This system is comparable, as Metternich would say, to the spider web, that is capable of sustaining light attacks but not a gust of wind, the wind blows away its legitimacy and then usually the equilibrium.
Moving from the metaphor of the spider-web and the wind to the concrete example of international order the greatest threat to the Kissingerian notion of peace is the rise of a revolutionary power that does not respect the set rules of the game. Whenever there is a power that considers the international order (the structure of the equilibrium) or the way in which it is legitimized, oppressive, relations between that power and the rest of the international actors will be revolutionary. Revolutionary power usually wishes to pursue its interests outside the realm of the system convinced in its dominant position. Or the system itself is at stake and what is in place is a revolution in the international affairs or a simple adjustment of differences is experienced. During the initial period after the first claims of the revolutionary power are made and first actions taken, due to the mixture of wishful thinking optimism, other states are often unavailable to correctly understand the situation they are facing (e.g. in the case of Kosovo 1999). Stability prevents others from understanding that the power rising is in fact a revolutionary power because they have the tendency to treat its action as a mere tactical adjustment within the established legitimate order rather than the slow destruction of such an order. By the time they realize they are dealing with the revolutionary power the old structure of the order is already destroyed and its legitimacy perverted. To be more precise the first victim of the rise of the revolutionary power is usually the legitimacy of the old structure of the international arena (e.g. in the case of Kosvo, International law engineered at Yalta).
Is the present structure of the international law explicable by the method of Science of International Relations? Arguably, it is.
The outlawing of war as a legitimate instrument of international politics since the Kellogg-Briand Pact 1928 and the article 2 of the UN Charter has inbuilt into the structure of international law a strategy of appeasement of the revolutionary power that is bound to appear at some point. Namely, the powers respecting the equilibrium legitimized by the present international law will seek not to resort to an open-war as the strategy of international involvement. The revolutionary power, as the example of Bush’s and Clinton’s US shows, will seek to on one hand consistently undermine the legitimacy of the order and on the other will try to justify sticking to the article 2 of the UN Charter. By re-interpreting the international customary law etc. However, the old international legal system can be re-intepreted only to a certain point, like when making a pizza, their is only ever so much you can pull the pastry until the part that you are holding brakes off...
The case of Iraq 2003 (arguably already that one of the NATO intervention in Kosovo 1999) presented a serious blow to the WW II International Order. US can be described as a revolutionary power willing to dismantle the equilibrium. Are we thus, heading towards a catastrophe or the recreation of the new equilibrium?
For those who have a normative understanding of international law, for "Mickeys", the occurrence of Bush’s Presidency (arguably Clinton’s also, as far as foreign policy is concerned) is indeed a catastrophe. For those who espouse Posner’s and Goldsmith’s view of international law (or that of Science of International relations) it is just a natural move towards the reassertion of the equilibrium. Nothing to worry about, that is how things work.
Interpreting the current international developments from the perspective of the science of international order one can recognize two possible outcomes. A pessimistic outcome by which the rise of the revolutionary power will ultimately lead to the creation of such a situation were an al-out conflict with the grouping of status quo powers would be inevitable. On the other hand, in an optimistic outcome the US policy of destruction of the present international order and its legitimacy (international law) would lead to the new equilibrium. In such a situation US would have to try to accommodate its view of legitimacy of the order to the demands of other international actors. Such an optimistic outcome would probably not seek to recognize the legitimacy of the new equilibrium within the realm of traditional international law but in its reformed version or in a completely new structure.
The moral outrage a consistent tendency to rule and construct the international system according to the scientific model Kissinger suggests is oblivious of the negative effects the international order trying to construct the world on the basis of a moral dictum. An apparent morality of the international order always presented a historically contingent legitimacy of the given order. Even if the international system whose goal would be to advance the logic of peace seen in absolute Kantian terms was to be instituted, the efforts of the normativist philosophers in the field of international relations would be of no avail since the most ruthless member of such a system will benefit from the situation and impose its proper interest on the rest. Or at least "Stalin" argues so.
In Kissinger’s system babies might die, freedom and universal principles can be crushed but the world tends to remain relatively stable (just to mention that Euan was particularly impressed by this passage of my paper). Normative theory is futile and potentially dangerous because it ignores the scientific nature of international relations and it leads towards the reification of present international order, potentially leading to a complete disorder.
Nevertheless, we continue to hate the cold-blooded calculators who simply act as an integral part of the complex historical machine of international order. We still opt for a normative Mickey Mouse although we can recognize the potency of Stalin’s, Kissinger’s or Posner’s arguments.
What is the international law supposed to be: a mere description of how things actually go in the international arena, a standard slightly superior to the situation on the ground, or an ambitious set of norms?
For further reading about what I decided to brand as Science of International Relations see Henry Kissinger, A World Restored: Metternich, Castlereagh and the Problems of Peace 1812-1822, Phoenix Press, London, 2000. This book grew out of his PhD thesis.