Law, Power and the Power of Precedent in International Relations

8 november 2017

Rein Muellerson is former president of l’Institut de Droit International, and President of the Academy of Law of Tallinn University, Estonia.

Resume: Current discussions, including the recent annual session of the Valdai Club in Sochi and its aftermath, have drawn attention to international law and particularly to two crucial questions: can international law be effective in the absence of a balance of power, and what is the role of precedent in that domain? Here are some reflections on these matters.

Current discussions, including the recent annual session of the Valdai Club in Sochi and its aftermath, have drawn attention to international law and particularly to two crucial questions: can international law be effective (even exist as such) in the absence of a balance of power, and what is the role of precedent in that domain? Here are some reflections on these matters.

1. Balance of power as the foundation of the rule of law in international relations

Every social system, and international relations is no exception, faces the problem of power. Without effective power there is anarchy and chaos, while the concentration of power tends to suppress individual as well as collective liberties. Within societies organised as states, i.e. relatively hierarchical societies, one of the effective remedies against the excessive concentration of authority is the principle of the separation of powers into the legislative, executive and judicial branches, and their balance. International society is a horizontal and relatively anarchical system where power is much more dispersed in comparison with the state. However, there is no absolute anarchy even in international society, otherwise there would be a bellum omnium contra omnes. Although this has existed at times in some places, politically organised societies have usually found some modus vivendi by curbing anarchy and inserting at least a modicum of order into their relations. Therefore, one may imagine all societal systems as being arranged along a spectrum between A (anarchy) and H (hierarchy). If most societies organised as states are closer to the H end of the spectrum, though never, of course, achieving it (the DPRK may come closest), most international systems are closer to A, and also never of course achieving it, as otherwise there would not be any society to speak of.

Ordering anarchy in international systems, both in regional and in today’s global systems, has taken different institutional forms, from imperial dominance to the nineteenth-century Concert of Europe, the European Union or the United Nations with its Security Council. Empire is a form of international governance where an imperial centre rules over imperial peripheries. Here, dominance and order go hand in hand. Although the time of formal empires seems to be over, and anarchophilia inspires international law (particularly through the right of peoples to self-determination), dominance for the sake of order has never completely disappeared. The composition of the UN Security Council with its five permanent members and their right of veto are some of the formal institutional examples of attempts to use shared dominance to curb anarchy. The nineteenth-century Concert of Europe was an even more successful, though less formal, attempt to order anarchy through the collective dominance of five European powers (Great Britain, the Austro-Hungarian Empire, the Russian Empire, Prussia, and France (the latter being admitted later, after initial reluctance, as a full member)), formed after the 1815 Vienna Congress.

However, just as within the nation state, power in international society also has the tendency to concentrate in one or more centres. The phenomenon of power concentration, be it in economics (the tendency toward monopolisation absent regulation) or in politics, seems to be a general rule of societal life. Even in academia we can see that some universities, think tanks and laboratories are successful in imposing their schools of thought, while effectively supressing and marginalising dissenting views and opinions. In international society, the necessity of a concentration of power for the sake of order tends to lead to its super-concentration. As power tends to corrupt and ’absolute power corrupts absolutely’ (Lord Acton), a separation of powers domestically or a balance of power in international relations are necessary conditions for the existence of order based on law. With one single dominant centre of power there is either a totalitarian state (domestically) or an imperial system – formal or informal (internationally).

The multipolarity of the international system is essentially a necessity due first to the sheer scale of the world, and secondly to its social, cultural and developmental diversity. It is also a necessary condition for the existence of international law. As one of the most prominent international lawyers Lassa Oppenheim wrote in the first edition (1905) of his famous treatise on international law, ‘Law of Nations can exist only if there is equilibrium, a balance of power, between the members of the Family of Nations’ (L.F.L. Oppenheim, International Law: A Treatise, vol. I, Peace, London, 1905, p. 73). International law as a more or less coherent system of rules and principles emerged after the Westphalian peace of 1648, which concluded the devastating Thirty Years War in Europe. Prior to that, Europe had existed as a political system of multi-layered authority, where the Papacy, the Emperor of the Holy Roman Empire and a multitude of kings, counts, earls and dukes competed for a place under the Sun. The Westphalian international society was a regional entity that ultimately managed to extend its characteristics to the rest of the world.  Only with the appearance of centralised nation-states did modern international law (then often called the ‘international law of civilised nations’, i.e. European international law), with its concepts of sovereignty and domestic affairs, take shape. Of course, not all states were equal, and there was a constant struggle for dominance as well as attempts to either ignore international law, re-interpret it in accordance with one’s interest or instrumentalise it for one’s own purposes. And yet, except for the relatively brief period of Napoleonic Europe, no power was able to dominate the whole continent. And it was exactly for that reason that, after Napoleon Bonaparte had disturbed the existing power balance to its very core and established an almost continent-wide empire, that the victorious powers then consciously and conscientiously created a continental international system, which became known as the European Concert, and in doing so guaranteed the longest peaceful period the European continent had ever known. President Nixon, speaking in 1971 with the editors of Time and referring to the nineteenth-century European Concert, stated: ‘We must remember the only time in the history of the world that we have had any extended period of peace is when there has been balance of power. It is when one nation becomes infinitely more powerful in relation to its potential competitor that the danger of war arises. So, I believe in a world in which the United States is powerful. I think it will be a safer world and a better world if we have a strong healthy United States, Europe, Soviet Union, China, Japan each balancing the other, not playing one against the other, an even balance’ (H. Kissinger, World Order, Penguin Press, 2014, p. 303). And though Kissinger’s diplomacy and Nixon’s visit to China in 1972 served, inter alia, the purpose of balance against the Soviet Union, the realism of the Nixon-Kissinger tandem is in stark contrast with the Wilsonian (or Leninian, for that matter) utopian messianic idea of the betterment of the world through its uniformization in accordance with liberal-democratic or communist precepts, in the process of which societies are destroyed and thousands, if not millions, could be killed. Kissinger warns us that a stable balance of power remains as crucial now as it was in the era of Westphalia, by emphasising that today, ‘to achieve a genuine world order, its components, while maintaining their own values, need to acquire a second culture that is global, structural and juridical – a concept of order that transcends the perspective and ideals of any region or nation. At this moment of history this would be a modernization of the Westphalian system informed by contemporary realities’ (Ibid., p. 372).

Until the beginning of the 1990s, international law had indeed evolved as a balance of power normative system, though the bipolar international system was not its best environment. The Cold War balance of power was almost exclusively a competitive balance where both poles not only constantly tried to outplay each other strategically, but also believed in the world-wide triumph of their respective social, economic and political systems. Although such a system with only two dominant actors that strove for absolute dominance was not the most stable, even in such a situation this relative power equality, a constraint on each other’s arrogance, had a soothing impact, even if it was the reality of Mutually Assured Destruction (MAD) more than international law that had the strongest pacifying effect. Of course, neither Moscow nor Washington played the role of an idealistic restrainers to each other’s power, but one of the effects, or side-effects if you will, of the relative balance of power between them was that it put limits on the use of force in international relations, and not only between the two superpowers; it had restraining effects beyond.

The post-Cold War unipolar moment was marked by attempts to transform international law into a normative system controlled from a single centre (Washington), where there could be no room for counter-balancing. For a while, it seemed that international law would indeed evolve in that direction. The widespread use of military force for humanitarian purposes, both authorised by the UN Security Council (therefore lawful, though not necessarily legitimate) or bypassing the Council (illegal, but for some legitimate), and the rapid evolution of international criminal law and jurisdictions came with high expectations that they could change the world for better. At the same time, the role of state sovereignty and that of the principle of non-interference became to be downgraded. But from the onset of the twenty-first century, not only have the ‘usual suspects’ of China and Russia begun counter-balancing, but other regional powers have also started introducing multipolar elements into the system. This emerging trend has not been to Washington’s liking, and by means of its containment and roll-back policies, either unilaterally or through NATO and even the EU, it has targeted Russia and China to perpetuate the unilateral moment of the 1990s. The normative effect of these developments has been that while in most sensitive areas the existing norms have become undermined, new ones have not been able to crystallise. Consequently, today we live in an atmosphere of increased normative uncertainty.

More effective international law, at least in the world as it is and not in some utopian imagination, can be based on three interrelated phenomena: multipolarity, balance of power and concert of powers. If the first two may naturally emerge due to the uneven development of societies over relatively extended periods and their relative (or sometimes absolute) rise and decline, the third phenomenon needs to be built by way of cooperative efforts and must be accepted by participants as legitimate. Using language familiar to international lawyers, there should be opinion juris sive necessitates (opinion as to its legal necessity) of the balance of power, and not only a de facto existing situation of such a balance. The whole history of international relations shows that where there is no balance of powers, it is either anarchy or empire that reign supreme. Clearly, the principle of balance of power is not an ideal form of international relations. The principle of the sovereign equality of states may suffer, though this may even benefit small nations, which usually do not have much say at the table of power balancing. As Traves Twiss, a prominent British jurist, wrote, ‘the concept of a general balance designed by treaty-systems would guarantee particularly the existence of the sovereignty of less powerful nations against the more Powerful States’ (T. Twiss, The Law of Nations considered as Independent Political Communities: On the Right and Duties of Nations in Time of Peace, Oxford, 1861, p. 140). In a more anarchical system, smaller countries, which instinctively, though sometimes counter-productively, may be more anarchophilic than more powerful states, would be constantly threatened by their stronger neighbours (e.g., in present-day Middle East), while in a more imperial system (e.g., the American and Soviet informal empires during the Cold War) smaller nations have very little say. In a balance-of-power system, smaller states may find support from other powers if one of them starts imposing upon its smaller and weaker neighbours. And it is necessary to bear in mind that we are talking here about a civilised, consciously built and accepted balance of power system, that is, about a concert of powers, and not a spontaneously emerging or existing system where powers break the balance by attempting to obtain absolute security, thereby threatening not only the security of others, but also security in general, including their own.

2. Precedent is in the eye of the beholder

One recent contentious issue discussed by politicians, diplomats as well as academics has been the attitude towards the independence of Kosovo, on the one hand, and South Ossetia, Abkhazia or the reunification of the Crimea with Russia, on the other. Quite a few of them, while condemning the recognition of independence of the Georgian break­away territories  by Russia, have at the same time welcomed Kosovo’s independence from Serbia. There is no doubt that there are a lot of factual differences between what happened then and what is going on today in these two mountainous regions. Lawyers know all too well the saying that ‘hard cases make bad law’, and one may well add that unique cases do not make any law at all. However, in international relations, cases of any significance are always hard cases, and it is only hard cases that can produce law for hard cases. Moreover, in the domain where international law functions, where no more than 200 states, hugely differing as to their size, power, political regimes and other characteristics, operate, all situations are also markedly more unique than those taking place in relations between individuals and legal persons within a state. Consequently, in international relations most situations are relatively more unique than cases covered by domestic law. Therefore, in international society just a few cases tend to serve as precedents that may make, undermine, change or modify legal norms. If all significant events in interstate relations were to be considered as unique, having nothing in common, then international law would become not only a theoretical, but also a practical, impossibility. Nevertheless, states, especially the more powerful ones, by referring to the uniqueness of circumstances they are acting upon, as well as to the purity of their own motives, incomparable with the self-serving intentions of their opponents, consider that their behaviour vis-à-vis certain situations or certain states should not serve as a precedent. For example, Condoleezza Rice, the then US Secretary of State, claimed that situations in the Balkans and the Caucasus had nothing in common: ‘I don’t want to try to judge the motives, but we’ve been very clear that Kosovo is sui generis and that that is because of the special circumstances out of which the breakup of Yugoslavia came’ (6 March 2008, Briefing by Secretary Rice en route to Brussels, Belgium (www. usembassy.org.uk/ forpo1244/html). Her Russian counterpart, Sergei Lavrov, in explaining the recognition of South Ossetia and Abkhazia by the Kremlin as independent states, was equally clear. Like Condoleezza Rice, he claimed that ‘the recognition by Russia of Georgia’s Abkhazia and South Ossetia as independent states does not set a precedent for other post­Soviet break­away regions …. There can be no parallels here’. (Abkhazia, S. Ossetia no precedents for other rebel regions – Lavrov”, RIA Novosti, 18 September 2008 (en.rian.ru). The problem with Rice’s and Lavrov’s ‘certainties’, is how to persuade, say, the Transdniestrians, Armenians of Nagorno-Karabach, Catalonians, Iraqi Kurds and the host of other separatist movements that Kosovo, Abkhazia and South Ossetia are so unique that they cannot serve as precedent. Differences, or parallels for that matter, are often only in the eye of the beholder. Whether certain situations, facts or acts can serve as precedents depends on whether one is interested in seeing them as such. Too many people too often act upon their ideologies, beliefs and prejudices, not upon facts; or rather, the latter are interpreted in the light of preconceived ideas. When the Quebecois claim their right to independence, they refer to the fact that their distinct culture and language are flourishing, that they have effective democratic governmental institutions and other positive achievements, which, in their view, serve as a basis for Quebec’s independence. The same could have said the Catalonians. Other secessionist movements, on the contrary, emphasize the lack of such achievements and believe that only through secession can they achieve those characteristics that they suppose are denied to them by oppressive alien regimes.

To conclude

There is no magic wand to make international law more effective and free of double standards. Each frivolous action may return to haunt as precedent, whether one intended it to be so or not. International law, one of whose main functions is to restrain force in international relations, must be buttressed by something more substantial than the power of reason or morality (also its necessary foundations), to make it effective. A superpower’s arrogance can be checked only by power (powers) equal to it, exhortations based on moralisation would not suffice. In international relations it is the balance of power that reinforces international law. In international relations it is multipolarity that performs the role of democracy and a balance of powers is a necessary condition for the rule of law.

Valdai International Discussion Club

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