Reviews

DOIhttp://doi.org/10.1111/1468-2230.t01-1-00304
Published date01 November 2000
Date01 November 2000
REVIEWS
Michael Byers (ed),The Role of Law in International Politics: Essays in
International Relations and International Law, Oxford: Oxford University Press,
2000, xvi +354pp, hb £50.00.
International law and international relations (IR), despite having the same intellectual
forefathers, have developed for the most part independently. Scholars crossing the
disciplinary divide, like the IR theorist Hedley Bull, or Myres McDougal, have been
seen as the exceptions rather than the rule. Since the early 1990s though, there has
been investigation by academics in both international law and IR into the possibilities
of drawing on the insights of their academic cousins.
This book, consisting of revised versions of papers given at the 1998 International
Law Association conference, is testament to this increased interdisciplinarity. Most of
the contributions are written by international lawyers, or by IR scholars who are
sympathetic to international law. The first substantive contribution is Sir Arthur
Watts’s ‘The Importance of International Law’. He asks three questions. First: ‘[d]o
States accept that an effective international legal system is an important element in the
fabric of the international community?’ (p 5). His answer: States need international
law, as the alternative is chaos, under which no State can prosper (p 7). Others might
think that in the absence of international law nothing would change, the powerful
would merely impose their order, and what is new about that? As Watts points out,
even by feeling the need to come up with legal justifications, States show some
attachment to international law (p 7). As he accepts, this is not a complete response, as
‘States’ apparent acceptance of international law may be little more than high-
sounding tokenism’ (p 8). This leads to his second question, ‘Does an effective
international system of law, incorporating the rule of law, in fact exist?’ (p 8). Again,
his answer is a qualified ‘yes’: most States obey most of international law most of the
time (pp 8–9). Still, notwithstanding a trend towards the creation and utilisation of
international courts, there is little a State can do unilaterally to effectuate the law.
Perhaps the way to increase compliance with international law is not overemphasis on
institutional enforcement, but ensuring the rules themselves reflect a ‘fair balance’ of
competing interests. A rule which does reflect such a balance is more likely than not to
be self-enforcing. The extent to which international rules do represent a fair balance is
his final inquiry (p 15). Watts is not convinced that international legal rules do
represent such a balance, particularly because of the rapid changes in international
society. He is also critical of the processes of change in international law, but has faith.
International law can be quite good at ‘muddling through’ (p 16), which, even if it is
unsatisfactory in principle, is quite effective in practice. These answers are helpful,
but are those of a practical international lawyer rather than one drawing on IR theory.
An underlying reason for the continuing reluctance of international lawyers to
embrace IR theory is identified by Martti Koskenniemi who, as ever, is provocative
and insightful. Koskenniemi takes us back to the days of Hans Morgenthau and Carl
Schmitt. Concentrating the works of the former, he shows how Morgenthau lost faith
in international law and turned to the sociology of power as the ultimate benchmark
for international affairs (p 25). This coincided with US interests (although
Morgenthau did not intend it to), as did the later New Haven school of McDougal
ßThe Modern Law Review Limited 2000 (MLR 63:6, November). Published by Blackwell Publishers,
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(pp 28–29). Koskenniemi applies his conclusion to today, the new calls for
interdisciplinary collaboration ‘cannot but buttress the justification of American
hegemony in the world’, since the IR theories on offer to international lawyers
currently are all of the (US) liberal type. Koskenniemi thus supports the maintenance
of legal formalism (p 32). He probably speaks for many international lawyers.
International law is dominated by legal positivism and its practitioners treasure the
separation between law and politics, owing to their fear of international law being
contaminated with, or subsumed by, political controversy. Previous interdisciplinary
approaches, such as McDougal’s, have met with an unenthusiastic response from most
academics on this side of the Atlantic. But it is not clear how the return to formalism is
to help. Elsewhere Koskenniemi has made strong arguments to the effect that it
cannot, and that morality has a place in international law. Scepticism about
interdisciplinary study is not limited to lawyers. Friedrich Kratchowil, a professor of
political science, is equally dubious. He sees the current attempts at interdisciplinarity
as unpromising, as both law and IR theory are in need of a ‘fundamental conceptual
reorientation’ (p 36) He argues that both lawyers’ and IR theorists’ conceptions of
explanation and justification are inadequate, being tied to logical positivism,
excluding more pragmatic arguments. He subjects both legal and IR theories to
searching critiques to support his point, and the result is an impressive chapter, albeit a
dense one.
For conceptual reorientation of international law, we need only look to Phillip
Allott’s chapter. To Allott international law is not a State-based system, but has
human beings as its ultimate subject (p 74). He is critical of the State based system, as
it occludes moral responsibility for the law (pp 72–73). For Allott, in the international
realm ‘survival of the fittest is decided by an intoxicating mixture of urbane
diplomacy and mass murder’ as a result of that realm’s overemphasis on the construct
of the State (p 73). He gives us his unique perspective on treaty and customary law,
and then on the ‘future of the international legal system’ (p 85). Here Allott castigates
the corruption of universal values, the ‘hegemony of the economic’ (pp 85–86), and
the ‘poverty of politics’ (p 86). He considers politics to have degenerated into
manipulation of popular opinion, with narrow, superficial debates, while in practice,
much power is wielded outside of any public accountability system (pp 86–87). This
has led to an ‘impoverished human consciousness’ which is reflected in the
international legal system (p 87). To counter this dystopian vision, Allott asks us to
reorient our concept of law away from the State, and towards the interests of
humanity, so it may take its place within the ‘self-creating and self-perfecting of the
human species’ (p 89). Allott’s utopianism is unlikely to persuade political realists. In
this he has something in common with more traditional international lawyers. Liberal
IR theorists, who are increasingly open to non-Statist approaches may be more moved,
although his insistence on the reality of objective universal values may put them on
their guard. For many international lawyers, Allott remains a source of inspiration, if
not a source of day-to-day reference when dealing with practical matters.
The final theoretical contribution is Steven Toope’s discussion of ‘Emerging
Patterns of Governance and International Law’. His is an account of the contributions
of both international lawyers and IR theorists to the understanding of norms and
governance. He applies his account to the study of the law of freshwater resources, (pp
104–108), an area where he feels that traditional international law is inadequate, and
that constructivist IR theory has greater heuristic value (pp 104–105). The topic of
water resources is taken up by Eyal Benvenisti, who shows how international
agreements can be the outcome of domestic pressures, and how international
obligations can be used to bind States beyond the life of the creating governments.
The Modern Law Review [Vol. 63
930 ßThe Modern Law Review Limited 2000

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