International Law and Power Politics

How relevant is international law today? Are states constrained by international law, or is international law a reflection of states’ power and interests?

The question of whether states are constrained by international law or they actually create it is contested in political science literature. Realist theorists would consider international law as a resource that states use in the instances where they want to maximize their military or economic power in the international realm. Conversely, liberalism views international human rights law as a moral and political standard that should necessarily be met by states for democratic peace on a global scale. This essay will utilize both of these two perspectives (of international relations theory) in discussing the how the enforcement mechanism of international law came into being– the underpinning ideas on international law enforcement mechanisms, a liberalist understanding of politics, will be explained. In turn, I will investigate whether and how international law reflects the power dynamics in global politics. Here my analysis will focus on a specific aspect of law. International Humanitarian Law “is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict” (ICRC, Jul 2004) International law is a reflection of a liberal world-view in its attempt to enhance human rights accountability. Yet, due to the discrepancies in system-level and state-level politics, there are double standards in its enforcement mechanisms.

International law principles were established from a liberal perspective for state accountability against grave human rights violations, yet paradoxically their enforcement depends on state cooperation. IHL differs from International Human Rights Law in its scope and application. IHL is a set of rules determining conduct during the conflict. Mostly crystallized through the treaties or conventions, IHL rules supposed to dictate state behavior for signatory parties. The tenants of IHL has been developed with an underpinning liberalist belief: States will be better off –and more secure vis-a-vis military threats– if they cooperate in an otherwise anarchic international realm. One of the most important consensus reached in the aftermath of WW2. The formalization of the current IHL framework started in the Geneva Conventions of 1949 which was ratified in the post-WWII period. Undoubtedly, the establishment of the United Nations and the institutional opportunities for inter-state negotiations facilitated the development of IHL. Similarly, the end of the Cold War created a window of opportunity for the establishment of the ICC: As the first permanent court to investigate war crimes, ICC’s universal jurisdiction and legal authority further contributed to the development of the rules of law through its courts’ decisions. Thus, as liberalist theory demonstrates, the international law instruments are created through states’ cooperation in institutions. In turn, international law mechanisms can be enforced at the level of the state, as well as the system level. At the state level, governments establish law corresponding to changes in international law.

In system-level, the international efforts remain incompetent in establishing the authority of legal mechanisms. Joanne Lu’s opinion piece explains the reasons why rules of war are bound to be broken and the difficulties in enforcement mechanisms. Some of the main principles of IHL, as can be seen in the sub-titles of her NPR piece, are “No targeting civilians,” “No torture or inhumane treatment of detainees,” “no unnecessary or excessive loss and suffering.” As discussed, these ideas –which historically stemmed from a liberalist understanding– aim to encourage state cooperation to reduce conflict. Yet, Lu observes that one obstacle for enforcing rules is the veto-power of the permanent members of the Security Council. Since state sovereignty is a fundamental pillar of international law, governments have the power to opt out of legal obligations: They can delegitimize IHL principles through domestic legislations or rejecting the international institutions’ authority in rule-making and implementing decisions.

A realist critique of international law would argue that IHL’s application in Russian war illuminates the double standards. Micheal John Williams discusses the international rules of war and its application to the Russia - Ukraine War. He describes the allegations of Russian war crimes and the evidence is of systematic violation of IHL principles in Ukrainian lands. There are universal standards that governments agreed on through international negotiation, such as “principle of distinction" and "proportionality principle", which are supposed to humanize war. But in practice the enforcement can be weak. According to an Amnesty International report on the war, the Russian military has violated several principles of IHL, including indiscriminate targeting of civilians and improper treatment of POWs. Formally, ICJ judges have ordered to halt military operations in Ukraine; through the efforts of human rights lawyers, strong arguments were established for "deliberate targeting of civilians or civilian objects” by Russian soldiers. Yet, the International Criminal Court’s arrest warrant of Vladimir Putin

is far from being achieved.

Williams’s analysis of the implementation of the law on Russian war echoes with the realist perspective on international law: “rules of law leave

much gray area for military operations and interpretation … [therefore] for much injustice.” Realist framework consider the international law as a strategic tool that can be used by states to maximize their advantage in power competition. A realist would argue that states are concerned with increasing their military or economic power relative to the other states and they are the primary actors in the international system. Thus, the rules

of war can not be universally accepted. Because most of the international institutions have been developed in Europe historically, the application of international law is bound to be Western-centric.In conclusion, the international law can only be relevant when the power dynamics permit.

Liberalist ideal of the realization of international human rights law is not achieved.

Works Cited

“What Is international Humanitarian Law?,” International Committee of the Red Cross, Jul 2004

“The ‘Rules of War’ Are Being Broken. What Exactly Are They?,” NPR, Jun 28, 2018. https://www.npr.org/sections/goatsandsoda/2018/06/28/621112394/the-rules-of-war-are-being-broken-what-exactly-are-they

Michael John Williams, “What Are The Rules of War and How Do They Apply in Ukraine?,” Washington Post, May 9, 2022. https://www.washingtonpost.com/politics/2022/05/09/ukraine-russia-rules-of-war/#:~:text=The%20rules%20of%20war%20protect,of%20war%20%E2%80%94%20are%20also%20protected