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Politics Among Nations
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Part 6Chapter Summaries & Analyses
Part 6: “Limitations of National Power: International Law”
Part 6, Chapter 18 Summary “The Main Problems of International Law”
The General Nature of International Law
The origin of international law arose with the transition from medieval feudalism to modern nations in Europe. As fully independent nations emerged from more archaic structures in which monarchs shared power with feudal lords and the Church, such a change required the formation of international law. This process took place over the course of the 15th and 16th centuries, and international law was first fully established in 1648 with the Treaty of Westphalia. It was then elaborated upon via international treaties, legal decisions, and the establishment of international bodies. International law is “almost completely decentralized law” (295), and it is maintained by the balance of power and shared interests between nations.
The Legislative Function in International Law
International law is primarily formed by treaties. However, treaties are limited because they only apply to the nations that are signatories. Also, international law does not usually address all issues that are relevant to international relations, such as economics and immigration. As a rule, international law is extremely complex, given that it is based on various treaties. While domestic laws are determined by “majority rule,” international law requires the consent of all signatories. Another difference between domestic and international law can be found in the fact that the latter has no institutions that can interpret the law, no standard of constitutionality, and no reliable mechanism of enforcement.
The Judicial Function in International Law
International courts have no formal power beyond “the will of the states submitting disputes for adjudication” (303). Cases of isolated arbitration occur “when the parties agree to submit one individual dispute […] after it has occurred, to the jurisdiction of an international tribunal” (303). This situation only applies to a specific case and is enforced solely through a treaty. The consent of nations is also required for “institutional arbitration,” where a number of cases involve a certain situation or a specific treaty. Even treaties and international agreements tend to hold an “optional clause” that allows nations to assert their independence and unbind themselves from the agreement (304).
The establishment of the International Court of Justice “marks an important step […] toward the centralization of functions in the field of international law” (307). However, the main problem for such centralized international law courts lies in determining who should serve as judges, especially given that any nation would want their own representatives at the court. The International Court of Justice addressed this issue by creating an elaborate and democratic system for choosing judges. Also, the practice of keeping judges in place for at least nine years “provides for continuity” (309), which is important for establishing the Court’s stability and legitimacy.
At the same time, the International Court of Justice’s decisions have “no binding force except between the parties and in respect of that particular case” (309). Another issue is that the Court itself is not bound to follow its own previous decisions, a legal principle called stare decisis. Nor does the Court have to respect decisions made by other international courts, which tend to be decentralized or formed only for a specific purpose.
The Enforcement of International Law
Aside from the tools available to national governments, there are no mechanisms or departments for enforcing international law. As a result, weak nations can only find justice under international law with the help of stronger nations. Even so, Morgenthau argues that nations are kept in check by mutual interests. For example, if one government violates the rights of diplomats, this action sets a precedent that will put their own ambassadors in danger. In the majority of cases, international law is upheld for this reason, but in a distinct minority of cases, international law is violated when it is perceived to threaten the power of strong nations.
One solution is a treaty of guaranty, in which two or more nations make a treaty and a third nation (or all the nations involved) is asked to guarantee that the terms of the treaty are followed. However, such treaties depend on power relations between nations and are susceptible to “loopholes” (315).
Similar to treaties of guaranty, “collective security” means that international law will be enforced by the entire community of nations. The League of Nations’ Article 16, as well as Chapter VII of the United Nations Charter, attempted to enshrine the principle of collective security. However, the former only used collective security against those who violated the League of Nations’ rules on declaring war and had no enforcement beyond the act of giving nations permission to declare war on the violating nations.
Chapter VII is more elaborate, as it gives the United Nations Security Council the power to request nations to provide armed forces and economic sanctions in order to enforce decisions for the purpose of peacekeeping. Still, the Security Council depends entirely on the cooperation of participating nations. Also, the United Nations’ nine “permanent members” can veto the decisions of the Security Council. When the Korean War in 1950 exposed the weaknesses of the United Nations’ Security Council, the United Nations passed the “United for Peace” resolution, which strengthens the ability of the United Nations’ General Council to call for the end of a conflict. Even in that case, enforcement is left entirely to the will of individual nations.
Part 6, Chapter 19 Summary: “Sovereignty”
The General Nature of Sovereignty
After the Thirty Years War, sovereignty (the principle that a government has sole power over what happens in its own territory) became a “political fact” (328). This was in contrast to the earlier assumption that rulers of a territory shared power with the nobility, the Church, and the emperor. The sovereignty of each nation is founded on the “principles” of “independence, equality, and unanimity” (330).
Synonyms of Sovereignty: Independence, Equality, Unanimity
Independence is the basic principle that no nation has authority over the territory of another nation. Linked to the idea of independence is that of equality, which declares that all nations have an equal claim to independence. Similarly, the term “unanimity” refers to the rule that, in international deliberations, every nation should have a vote regardless of their power.
What Sovereignty Is Not
Morgenthau clarifies that sovereignty does not mean that nations are completely free from the dictates of international law or from the “legal obligations” that come from treaties (333). Also, sovereignty does not mean that nations do not depend on other nations for economic or military support.
How Sovereignty Is Lost
Under a treaty, a nation may lose its sovereignty to another nation because it agrees to “legal obligations” (334). A nation can also lose sovereignty if, through a political coup or military conquest, its government becomes completely subservient to another nation. Morgenthau lists four criteria to determine whether a nation still retains its sovereignty: if a nation’s government fulfills its basic functions, if the nation’s government takes orders from another nation, if the government’s independence is both political and legal, if the authority of a government is not divided between two or more authorities, and whether or not “the actual distribution of power within a territory remains unsettled” (335).
Morgenthau addresses the argument that only “the permanent members of the Security Council have retained their sovereignty” because of their veto power within the United Nations (338). He rejects this reasoning, believing instead that there still has to be unanimity between the permanent members of the Security Council. He also holds that the Security Council needs the consent of member nations to have military support, and he asserts that each nation “must sacrifice its national interests to the common good of the United Nations as defined by the Security Council” (339).
Also, it has been argued that the unequal power between nations in international law overrules sovereignty. However, for Morgenthau, this point does not negate the members’ individual sovereignty; only governments relinquishing their sovereignty to an international body would do that. Also, there are mechanisms that prevent matters of importance to a nation being decided by a simple majority vote.
Despite the existence of international bodies like the United Nations, Morgenthau asserts there is still not a “divisible sovereignty” between a nation’s government and an international body (341). This is because the government of a nation does not share legislative and law enforcement powers. Even with a democratic and apparently divided government like that of the United States, “there must be a man or a group of men ultimately responsible for the exercise of political authority” (344); this is another reason why sovereignty cannot be shared. The only reason why sovereignty is divided, either within a nation or between a nation and an international body, is due to the gap “between political reality and political preference” (346).
Part 6 Analysis
Here, Morgenthau discusses what historians often describe as “Westphalian sovereignty,” placing his argument within a broader examination of The Limitations of International Law and Morality. Given this context, Morgenthau’s presentation of sovereignty is very much based on European politics and history, and he does not provide a comparative discussion between Westphalian sovereignty and non-Western conceptions of statehood. Morgenthau’s stance is arguably based on the idea that although the Westphalian concept of sovereignty was developed in Europe, it came to dominate the world and eventually determined how all countries now conceive of nationalism. Nonetheless, the criticism of Morgenthau’s bias is warranted, given that the discussion of alternative concepts of nationhood and sovereignty may be useful for understanding the limits of international law and ways to overcome them.
As it is, Morgenthau argues that the very nature of sovereignty and The Concept of National Interest drive the decentralization that creates obstacles for international law, especially when it comes to preventing aggression. While individual people are under the authority of laws that are clearly defined and enforced by a centralized judicial and law-enforcement system, the forces maintaining and defining international law are much looser. As a result, nations “have used the imprecision of international law as a ready-made tool for furthering their ends” (299). For this reason, comparisons between international law and domestic systems of law are important for Morgenthau’s analysis. Both individuals and nations may be driven by self-interest and the desire for power; however, individuals cannot easily ignore parking tickets in the same way that nations can arbitrarily remove themselves from an international agreement that is no longer advantageous. Nor is there a court that has the same authority over, say, Japan or Canada that a nation’s supreme court has over its citizens, if only because an individual can easily be imprisoned or fined through the intervention of a centralized government. By contrast, a nation can only be held accountable through actions that require the consent of other nations, such as economic sanctions or military intervention.
Even so, national interest does motivate nations to comply with international law in many respects. As Morgenthau points out, “The great majority of the rules of international laws are generally observed by all nations without actual compulsion, for it is generally in the interest of all nations concerned to honor their obligations under international law” (313). This is a view inspired by the work of the philosopher Thomas Hobbes. In Hobbes’s view, people protect themselves from violent and destructive expressions of other people’s self-interest (e.g., theft) by forming a civil society and surrendering a portion of their own personal power. This concession allows them to form structures for mutual protection, thereby protecting their own interests.
Similarly, Morgenthau argues that nations agree to follow international laws and agreements in order to ensure that their own self-interest is preserved. Even then, just as people have a limit to the extent of their rights that they will sacrifice for the sake of security, nations are likewise unwilling to give up a piece of their sovereignty, even to help ensure a permanent end to war. Morgenthau makes this point when he sarcastically concludes that “the advice to give up ‘a part of national sovereignty’ for the sake of the preservation of peace is tantamount to the advice to close one’s eyes and dream that one can eat one’s cake and have it, too” (346).
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