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Realist Views of International Law

International law is either what freely concluded treaties and agreements say it is, or is the result of widely accepted customary practice. International law not only defines specific obligations but also, for some, reflects normative aspirations that should govern relations among states. For many if not all lawyers there is an obligation to obey international law. For political scientists this is an odd way of conceptualizing a set of agreements or practices for which there is no overarching authority capable of resolving conflicting interpretations of what the law means, and no neutral third party with the legitimate right to punish violators. For many years most political scientists who studied international politics regarded international law as an oxymoron. International law courses disappeared from the curriculum of many political science departments. In the last decade there has been a revival of interest in international law largely led by international relations scholars working from a liberal or liberal institutionalist perspective. For this approach law is regarded not as a set of normative aspirations or mutual obligations but rather as a reflection of efforts to create self-enforcing equilibria in the international environment. Law is one mechanism that allows states to resolve market failure problems by, for instance, establishing formal organizations or creating focal points. Liberalism or liberal institutionalism presents a serious challenge to realism, the dominant perspective for American students of international relations from the late 1940s through the 1980s. The realist view of international law differs from that of both international lawyers and liberal institutionalists. For realists, the defining characteristic of the international system is anarchy, and the most important empirical reality is that national power, including but not limited to the ability to wage war, matters more than anything else. Realism, like any general social science orientation has variants. Over the last fifty years, there have been at least three important realist orientations. First, Hans Morgenthau argued, especially in his Politics Among Nations, that the nature of the international system could be understood only by considering both the distribution of state power and the character of individual states, particularly whether they have revolutionary aspirations or are satisfied with the status quo. Second, in his 1979 book, Theory of International Politics, Kenneth Waltz argued that the position of Morgenthau and many other analysts was confusing because it confounded system-level factors with the domestic characteristics of states. Waltz, in the most influential formulation of the realist perspective in the last thirty years, concluded that a realist argument is one that explains and predicts state behavior based solely on the distribution of power. Domestic political factors were, Waltz argued, reductionist. They might be consequential but they were not relevant for a theory of international as opposed to domestic politics. While this was a powerful and clarifying observation, the question for Waltz's "structural realism" became,