|Preamble section 4:|
|Whereas it is essential to promote the development of friendly relations between nations,|
Concepts and Ideas
International Law and International Relations
The scholar Rosalyn Higgins has suggested that international law is not just rules, but a "normative system." All organized groups and structures require a system of normative conduct - that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violation carries a price. Normative systems make possible that degree of order if society is to maximize the common good--and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that society embraces.2
On this view, law is the normative expression of a political system. Louis Henkin has pointed to the parallels between the function of law in domestic societies and the international legal system. Domestic law is a construct of norms, standards, principles, institutions and procedures that serve the purposes of society. It establishes and maintains order; enhances the reliability of expectations; protects persons and their property; promotes welfare of individuals; and furthers other societal values (justice, the good life, the good society). International law is also the product of its "society" and political system; it too is a construct of norms, standards, principles, institutions and procedures. The purposes of international law are thus very similar to those of domestic law. However, the constituency of international society is very different - "persons" in international society are not individuals but political entities, "states" and the society is an inter-state system, a system of states.
In Henkin's view, the suggested predominance of power politics over law in the inter-state system rests on a mistaken understanding of the relationship between law and politics. Realists posit a stark dichotomy between "politics" (suggesting freedom of choice, diplomacy, bargaining, and accommodation) and "law" (suggesting a normative system in which the failure to abide by legal obligations invites legal remedies). For Hans Morgenthau, the only relevant laws are the "laws of politics," and politics is a struggle for power. But this distinction is deceptive. For Henkin, "law is politics." Law is made by political actors, through political procedures, for political ends. Emerging law is a result of political forces. Politicians turn to law to achieve their desired ends. Accordingly, the influence of law on State behavior is also determined by political forces. The commitment of states to the rule of law in international relations, the norms of international law that the system has developed, and the measure of compliance with those norms at different periods and times, all reflect the major political forces in the system and respond to periodic change in that system.
Henkin's response to the realist and power politics school is thus to suggest that its view is not particularly "realistic." In his book How Nations Behave: Law and Foreign Policy, he advanced the following thesis: "Almost all nations observe almost all principles of international law and almost all their obligations almost all of the time." There are reasons why nations make law and conclude agreements, and why they make particular law. Like law in many national societies, international law results from the complex interplay of varied forces in international politics. Like domestic law, and for similar reasons, international law is observed by nations as national policy, shared with other nations, in support of an orderly society. Some international agreements have particular political significance because they shape the character of international society, e.g. Utrecht, Westphalia, Vienna, Versailles, and Dayton. Moreover, today, a new type of international agreement flourishes that has added new dimensions to foreign policy and international law, i.e. arrangements among a large number of nations to promote cooperation for some common aim, such as intergovernmental organizations and institutions - the UN, the World Bank, the OECD, the GATT, NATO and the European Union. On this view then, international relations and foreign policy depend on a legal order, operate in a legal framework, and assume a host of legal principles and concepts, which shape the policies of nations and limit national behavior.
2. Rosalyn Higgins, Problems and Process: International Law and How we Use it.
Peter Danchin, Columbia University