Back to Square One. Or Whither the Inter-disciplinary Debate?

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In this post, Dr Alexander Orakhelashvili comments on the discussion of “legalism” and realism in a recent debate between professors John Mearsheimer and Mary Ellen O’Connell

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Discussions about the relationship between international law and international politics have a long history spanning over the inter-war period (1919-1939), World War II, Cold War confrontation between great powers, and the period after the Cold War has ended. In each of those periods various political processes and instances of the alteration of power balance between great powers have raised the issue of how relevant international law is to international politics, whether and how international law influences conduct and policies of States when their important interests are at stake. A recent debate on international law and political realism between professors John Mearsheimer of international relations, who belongs to the school of political realism, and Mary Ellen O’Connell of international law, was intended to clarify these matters as we are progressing in 21st century when the end of the unilateral hegemony of the US is becoming more and more obvious.

The debate between Mearsheimer and O’Connell is ridden with the assumption that realism and “legalism” (as O’Connell puts it) are alternatives to each other. Mearsheimer says that “it is very important to realists that international law and international institutions cannot force states to obey the law when those states think it is in their vital interest not to obey the law.” Furthermore, there are “situations where international rules are at odds with a nation’s vital interests and that nation then violates those rules.” (93) By contrast, O’Connell suggests that the United States ought to reclaim “what was once the true and important goal of U.S. foreign policy: promoting the rule of law in the world”. O’Connell further emphasises a dichotomy between legalism and realism, and proposes to challenge realism’s basic assumptions about the self-regarding nature of States, suggesting that at times States may forgo their own interest or benefit for the interests or welfare of others (94). These conflicting views seem to manifest the view that has, over many years, commanded greatest support among academics or practitioners working in this area.

But projected dichotomies are not necessarily real dichotomies. Earlier I have explained that realism and “legalism”, if understood simply as an emphasis on the rule of law in international relations, are not mutually antithetical, but mutually conditional. The system of positive international law, which lays down rules that at times require State conduct or policies to be altered or modified, does not require that States be altruistic or magnanimous, or excessively keen on cooperation with others. Instead, it is content with the same image of self-regarding States keen on their national interest, even on maximisation of power and profit, in short the image of States political realists operate with. Projecting international law as opposed to the autonomy and self-interested nature of the very States in the relations of which it is meant to be applicable would be its clearly distorted representation. It would furthermore be the last thing the positivist method of international law – the language of international legal system – would require from us; and in some contrast with liberal, constructivist or contractarian perceptions.

O’Connell suggests that “Both legalism and realism are ideas—basic human constructs” (95). However, they both also differ from all other doctrines or perceptions in that they both relate to actual ontological realities: the autonomous and self-regarding nature of States, absence of an international government, and a concrete system of positive international law which operates in the real world and on which States place reliance. That aggrandizement produces concerns, reaction and balancing efforts is not a thesis that realists would quarrel with. They should likewise have little difficulty in accepting a logical extension of the same thesis that aggrandizement contrary to a State’s international legal obligations is likely to produce an ever greater reaction. By late 1990’s the relative power of the US-led Western bloc had significantly outgrown relative power of the non-Western world, and the 1999 NATO-led war against Yugoslavia over Kosovo was a manifestation of precisely such hegemonial aggrandizement premised on the claims of legal exceptionalism. But as experience has shown, such exceptionalism did not work, and chain reaction which the Kosovo situation has produced has left the Western coalition in the position of putting up with significant decreases of their relative political gains.

It is here that O’Connell’s suggestion that “What is essential to the rule of law is that force is subordinated to law” (95), holds true from the realist perspective as well. This is precisely for the reason that, as Mearsheimer repeatedly stresses, there is no government over and above States. The implication is that hegemonic aggrandizement policies cannot be endowed with the status of law. Instead, hegemonic aggrandizement entails trends of reciprocity, defection, unintended consequences, blunders, and adverse alteration of the relative gains calculus, all elements realists are happy to reckon with.

O’Connell suggests that “the impact of realism is that we no longer understand what the law is.” (101). But Mearsheimer is more accurate in saying that “When the United States violates international law, it goes to a law school and finds a bunch of clever law professors to explain why violating international law is not really violating international law.” Indeed, “lawyers provide the U.S. government with an explanation that it is actually following international law when it is not.” (99-100) However, lawyers are not always best judges of the realist imperative or of political and strategic implications of a legal advice that might include some loosely or flexibly presented picture of applicable legal requirements when political agenda of the day so requires. Lawyers endorsing legality of Afghanistan (2001) and Iraq (2003) invasions would not necessarily advise on political and strategic consequences of those invasions. It is more likely that they would have been confident as to the success of those enterprises – in vain, as experience has proved and as some realists would have predicted at the outset.

Overall, Mearsheimer’s point has to be taken on board. One wonders, exactly what proportion of Professor O’Connell’s international law colleagues across American universities believe it to be task of international lawyers to identify the content of impartially applicable rules of international law and then judge facts and national policies in the light of those rules, as opposed to first ascertaining what the US Government’s political objectives are in the relevant situation and then providing a fine-tuned picture of how the legality of those objectives is to be evaluated? The picture that is bound to emerge would show that “legalism” is by far not the dominant thinking in those circles and, as I have explained elsewhere, international relations writers have taken notice of that over decades.

Adherence to the view that international law is fused and blended with international politics as opposed to being a transparent system of impartial legal rules was more attractive in the 1990s, with the end of Cold War and consequent alteration of power balance between great powers. At that point, perception about the US-led liberal world order would have been more credible in certain quarters (though by no means in all quarters). Whatever the (lack of) ontological reality backing up this perception, the power balance between great powers today is not what it was in 1990s. Different processes, reactions and realignments have characterised power politics over past two decades, and the current multipolar world could not be rationalised by liberal, contractarian or constructivist theories whose popularity has increased from 1990s onwards.

In the first place, international lawyers ought to be clear about the nature and workings of the system of positive international law. If they keep getting wrong messages across the inter-disciplinary divide, international relations scholars are less likely to be persuaded about political stakes, costs and risks attendant to national policies contradicting international law, and will tend more towards viewing international legal reasoning as a form of vague rhetoric to legitimise relevant national political agenda. In the modern world, such political conformism of international lawyers would be most likely to serve policies that lead to more crises and blunders – policies that have the blessing of an imaginary inter-disciplinary consensus misrepresenting realities on both sides across the inter-disciplinary divide.

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