Dissertation, ex post facto - Introduction

Some friends have expressed an interest in my dissertation and I have decided to post the introduction and the conclusion on this blog so that you readers may get a taste as to the general argument and, should you be so minded, you could drop me an email to ask for a copy. I'd be delighted to send it.



Title: An examination of the relationship between obligation, international law and international society.

Introduction

The most widely accepted view of the international legal system is the positivist account of a consent-based system of law. This understanding often leads International Relations (IR) scholars to the perception that the main task of international law is to create order between self-interested, sovereign states in an anarchical environment, thus making international law a largely epiphenomenal concern for IR. Because of its perceived ineffectiveness at limiting state behaviour, given the primacy of state survival and the cardinal rule of sovereignty, international law is denied any meaningful relevance in international politics (Kegley and Wittkopf, 2001, 598; overview Koh, 1997). This perception results from the construal of law and politics as distinct, even opposing, endeavours that underwrites traditional understandings of international relations. Despite being one of the few scholars to consider the role of international law in the establishment of order, Hedley Bull adopted this view of international law. He regarded it as a secondary institution of international society, indicating that because of its unenforceability, it would have to be subordinated to the more power-political institutions of international society, without which “the ‘softer’ elements of international order (international law, international organisations, the existence of shared values) would be so many castles in the air” (Hurrell, 2002, viii).

By adopting this perspective, not only is an analyst of international politics disinclined to pay international law much heed, but the alternative functions played by international law, such as the provision of a common cognitive Gestalt, or lingua franca, amongst members of international society will be overlooked. Attempting to shed light on this function of international law, the aim of this paper will be to investigate the nature of international legal obligation and the constitutive role of international law in international society. In doing so I attempt to build on Bull’s work and counter “the tendency of political scientists to […] downplay the importance of the international legal system” (Alderson and Hurrell, 2000, 67). My analysis of international law as the common Gestalt that allows the emergence of today’s global international society rests on a much needed re-articulation of the perceived tensions between international politics and law, seeing the two as complementary rather than anti-thetical social processes.

The first part of this paper it will argue that the contemporary consent-based international legal system necessarily relies on the acceptance of extra-consensual norms that allow international laws to generate obligation in states. An analysis of the affirmation of European states’ sovereignty and internalisation of the norm of pacta sunt servanda, enunciating that states have an obligation to fulfil the treaties they consent to, during the colonial period will follow. It will be concluded that European states emerged from this period simultaneously as sovereign entities, subjects of international law and members of international society.

The second part will outline the constructivist notions necessary to analyse the roles of obligation and international law in international society. It will show that the central norm generating obligation to international law, pacta sunt servanda, is constitutive of international society because it defines a central feature of normal interaction between members of international society and establishes treaties as generative of obligations, hence as a source of law. Furthermore, by internalising this norm, thus accepting the construct of international law, states established a common Gestalt, or language, between them, in which meaning-full international relations can be undertaken. By virtue of the fact that international law operates as the common ‘language’ through which members of international society engage in political relations, today’s international sphere can be described as a society rather than a mere system.

The final part of this paper will measure my understanding of obligation and international law against Bull’s traditional conception of obligation and international law in international society. By adopting a rationalist or legal positivist understanding of international legal obligation and of the role of international law in contemporary international society, Bull is forced to give pride of place to the power-political institutions of international society, thereby reinforcing the false dichotomy between politics and law at the international level. Revisiting these assumptions I hope to demonstrate that by accepting the complementary relationship between international politics and law, the possibility of conceiving contemporary international relations as societal relations – articulated through common language of international law – becomes apparent.