Preamble section 4:
Whereas it is essential to promote the development of friendly relations between nations,

Concepts and Ideas

  1. International Law and International Relations (1)
  2. International Law and International Relations (2)
  3. The Modern Roots of International Law and International Relations

International Law and International Relations

International law – and, one of its modern branches, international human rights law – critics say, is not really “law.” It only functions in practice when international legal rights and duties coincide with the desires of the most powerful states. For example, critics point to the fact that international law was invoked to liberate Kuwait and to justify sanctions against Iraq, while Tibet continues to live under illicit occupation. According to Martii Koskinniemi,1 international lawyers are either Utopians or Apologists. Utopians draw rules which they wish states would comply with, but they do not, or describe international law as laws that they wish and claim that states have created when in fact they are a fiction. Apologists have to justify in legal terms accomplished facts after they have happened for the offices of the Ministry of Foreign Affairs or the State Department, for example when President Bush senior invaded Panama. To realists, therefore, when nations do behave consistently with law, it is commonly seen as fortuitous: the law happened to coincide with what the nation wished to do.

Professor Louis Henkin
In a system without a world judiciary or legislature how was it thought that by embedding Human Rights in international law and institutions you would achieve any measure of protection or compliance by states?
The greatest challenge posed by the “realist” school of international relations to the validity and legitimacy of international law is the assertion that the essence of a legal system lies in its enforcement – and because the international legal system has no legislature or courts with compulsory jurisdiction to command sanctions, and because it has no police force or sheriff to ensure compliance, international law is not really “law.”

Michael Ratner
In the International law/International Relations debate, scholars don't agree whether law or power govern or should govern the international scene. what is your view on the topic?
This idea is in fact part of an ancient dispute that dates back to the early writings of Pufendorf and Hobbes and, more recently, was reinforced in the 19th century by Austin’s influential positivist legal theory (ie, international law has no sovereign to command sanctions and therefore is not “law”). The controversy has focused on the relevance of the lack of sanctions in cases of violation of international norms as compared to municipal legal systems. In foreign policy thinking, this view remains prevalent in the Realist School which emphasizes the role of power and of “national interest” in international relations and is connected with such names as Nicoli Machiavelli, Hans Morgenthau, and George Kennan, and is also reflected in the writings of Henry Kissinger.

To international lawyers, however, this “reductionist” perception of international law confuses the question of whether international law is “law” with the problem of the effectiveness and enforcement of international law. For international lawyers, the more important question to ask is what role law can and should play in any form of community.

Endnotes

1. See Martii Koskinniemi, From Apology to Utopia.

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Peter Danchin, Columbia University