When Law Meets Power: The Limits of Public International Law and the Recourse to Military Force
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1 Introduction In 1963 former US Secretary of State Dean Acheson addressed the annual meeting of the American Society of International Law. Commenting on the events surrounding the Cuban missile crisis, he declared to his audience that “[l]aw simply does not deal with such questions of ultimate power – power that comes close to the sources of sovereignty.”1 Acheson’s bold statement illustrates the traditional scepticism among International Relations (‘IR’) scholars vis–à–vis the capability of international law to act as a restraint on governmental decision–making in foreign policy matters. Nowhere is this scepticism stronger than when it comes to decisions on inter–State recourse to force, the domaine réservé of the executive, which is perceived as the ultimate battleground for a trial of strength between international law and naked power – a contest law is doomed to lose. But is it really true that public international law stops where power begins? More recently, IR scholars have apparently begun to award greater significance to international law. International lawyers, on the other hand, have gone to great lengths to demonstrate that compliance fares better than is often thought. Against this background, the present chapter aims at gaining a better understanding of the limits of public international law by putting the traditional IR scepticism into perspective while steering clear of unwarranted juridical optimism. Building upon the different views among IR scholars and international legal theorists (section 2), we will identify a number of factors inducing compliance with public international law (section 3). Subsequently, we will briefly examine to what extent these factors apply to the Ius ad Bellum, namely the international law on the use of force (section 4).
1
D. Acheson, “Remarks”, ASIL Proc. 1963, 57, 13, 14.
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Tom Ruys
2 Theories on International Law and Power 2.1 International Relations Theories According to the realist school, States are driven by the pursuit of the ‘national interest’. As their conflicting interests are not controlled by an overarching hierarchy, anarchy prevails. Realists traditionally attest to a strong mistrust towards international law2, which they ultimately consider epiphenomenal.3 It rests on power, as its content is determined by dominant States and it is upheld by these States when it serves their interests. Otherwise, the normative arrangements will have to yield to the very same power. Contrary to political and economic factors, international law does not affect the behaviour of States. It merely serves as a tool for powerful States to use for their own ends against weaker entities. Voluntary compliance is an illusion. Realists also refute the idea that international institutions that fall short of a true ‘world government’ may be capable of preventing conflict. Collective security arrangements, including the United Nations, are no more than a method of placing power in the hands of the dominant States.4 At the best, they manage to reduce conflict somewhat by institut
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