Unfortunately, a divide has tended to stifle cross-disciplinary re-search between scholars of international law and international rela-tions.42 Since Hans Morgenthau’s influential writings on the subject from the mid-1940s, subsequent theorists of the latter tradition have, on the whole, remained skeptical of international legal processes.43 In par-ticular, Morgenthau believes in the weakness of the international legal order in the absence of centralized authority and the tendency of formal law to be corrupted by power, and hence bear little association with po-litical outcomes.44 To Morgenthau, “international law is a primitive
42 Stephen J. Toope, Emerging Patterns of Governance and International Law, in THE
ROLE OF LAW IN INTERNATIONAL POLITICS: ESSAYS IN INTERNATIONAL RELATIONS AND INTERNATIONAL LAW 91-108 (Michael Byers ed., 2000).
43 Hans J. Morgenthau is the founder of classic realism in international relations. He defines the core principles of international politics by arguing: “Whatever the ulti-mate aims of international politics, power is always the immediate aim. The strug-gle for power is universal in time and space and is an undeniable fact of experi-ence.” With his famous work, Politics Among Nations, published in 1948, Morgen-thau declares war on legalistic and moralistic interpretations and provides the realist theory. In terms of international norm, he argued that international law and morality are constraints on the struggle for power. He also applies realist philosophy to hu-man rights issues and stresses the need for enforcement and practical morality. He tried to explain the tensions between moral principles (i.e. multilateral norms) and political necessities (i.e. national authority and interests) in world politics. See Afred J. Hotz, Morgenthau’s Influence on the Study of International Politics, in TRUTH AND TRAGEDY: A TRIBUTE TO HANS J. MORGENTHAU 316-21 (Hans J.
Morgenthau, Kenneth W. Thompson & Robert J. Myers eds., 1984); HANS J.
MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE
(1978).
44 Id. at 279-88; Andrew Hurrell, International Lawand the Changing Constitution of
−134−
type of law resembling the kind of law that prevails in certain preliter-ate societies” because of its decentralized nature that renders it an inef-fective mechanism in the struggle for power and peace in international relations.45 This divide is fueled further by what Antonio Cassese and others call the “end of the magnificent illusion.” It became increasingly clear by the late 1990s that the UN Charter was unable to provide effec-tive answers to the problems of international and internal conflict.
Yet these assumptions discount the influence of law on state be-havior. International law is not a system of absolute legal rules that lack central authority and the means of enforcement. International law is in-stead a system of legal relations.46 Thus, while international relations delves to some degree into the effect of power on legal processes, it of-ten neglects the effect of law in shaping power relations in the first place. As Hurrell argues, “legal rules and relations are important, then, in so far as they constitute the game of power politics. But they are also important more directly in stabilizing and legitimizing the power of par-ticular actors.”47 Hurrell’s criticism is directed principally against real-ism. He argues further that:
International Society, in THE ROLE OF LAW IN INTERNATIONAL POLITICS: ESSAYS IN
INTERNATIONAL RELATIONS AND INTERNATIONAL LAW 328 (Michael Byers ed., 2000).
45 MORGENTHAU, supra note 43, at 281.
46 Philip Allott, The Concept of International Law, in THE ROLE OF LAW IN I NTERNA-TIONAL POLITICS: ESSAYS IN INTERNATIONAL RELATIONS AND INTERNATIONAL LAW
74 (Michael Byers ed., 2000).
47 Hurrell, supra note 44, at 330.
−135−
Neo-realists fail to appreciate the importance of norms and of law to the analysis of power. They mistakenly view norms, rules, institutions, and values as mere reflections of material forces.
Power remains central to the analysis of international relations, but power is a social attribute. To understand power we must place it side by side with other quintessentially social concepts such as prestige, authority, legitimacy and legality. Indeed, it is one of great paradoxes that, because it so resolutely neglects the social dimensions of power, realism is unable to give a full or con-vincing account of its own proclaimed central category.48
While Morgenthau recognized the distinction between legitimate and illegitimate power, he perhaps did not take the implications of this distinction far enough. He states, for instance, that “legitimate power, which can invoke a moral or legal justification for its exercise, is likely to be more effective than equivalent illegitimate power, which cannot be so justified. In other words, legitimate power has a better chance to influence the will of its objects than equivalent illegitimate power.”49 Law must therefore not be measured in absolute terms, but by its rela-tive effect on social power relations.
An analysis of human rights practice in international arena must consequently account for the role of the international human rights legal norms in shaping power relations between states. Needless to say, state authority and inter-state interactions are crucial in determining the ex-tent to which it can shape power relations.
48 Hurrell, supra note 44, at 330.
49 MORGENTHAU, supra note 43, at 35.
−136−
While human rights are no less ‘real’ than material interests, state policy nonetheless tends to be based on objectives that are more readily tangible.50 These insights do not suggest, however, that human rights make no contribution in shaping the power relations of international politics. Indeed, historical examples show the contrary, as in the case of decolonization. Despite the Cold War tensions, “by the mid-1960s, Afro-Asian states formed the largest voting bloc in the UN. These coun-tries, which suffered under colonial domination, had a special interest in human rights.”51 Human rights were emphasized as justifications against colonial rule. Moreover, these trends led to the creation of the International Convention on the Elimination of All Forms of Racial Discrimination, which was opened for signature and ratification in 1965 and adopted in 1969. Human rights were clearly crucial in establishing a new post-colonial order and the international acceptance of the racial equality norm. Notable research conducted by Klotz demonstrates that this human rights principle has abetted the development of the interna-tional norm against apartheid in South Africa, which cannot be ex-plained on purely instrumental grounds.52 Human rights thus derive their import not from material resources, but from their ability to chal-lenge on normative grounds the organization of power and authority that ostensibly legitimates certain types and applications of violence.
50 JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 137 (2002).
51 Id. at 7-8.
52 AUDIE KLOTZ, NORMS IN INTERNATIONAL RELATIONS: THE STRUGGLE AGAINST
APARTHEID (1995).
−137−
This is not to say that human rights can be divorced from power.
Indeed, the growth in the international human rights law has been achieved only through incremental gains and setbacks in the bargaining process between numerous political actors over several decades. Power, interest, and political will have been involved at every stage. As wit-nessed during the Cold War, human rights were even subject to periodic manipulations by the powerful states. Power and inequality place strain on the international legal order because large and powerful states have options. They have the power to shape the agenda of international law and international institutions and to use direct coercive power in sup-port of their own interests. Yet these considerations do not license the claim that human rights have lost all meaning simply because they are susceptible to periodic manipulations of power and interest. Human rights regimes remain a source of legitimacy from which the victims of oppression and brutality can assert legal claims against alleged perpetrators. By limiting certain forms and applications of coercive power, human rights narrow the range by which states can legitimately exercise force. Even powerful states are thus constrained by the ‘settled norms’ of international human rights obligations.53、54 States must endorse and abide by these obligations or at a very minimum, pay lip service to and provide justifications against them.
Therefore, the question of human rights practice is not whether the era of human rights has come and gone, but whether human rights
53 A “settled norm” exists where any argument or act which contravenes or opposes the given norm is commonly regarded as requiring special justification.
54 MERVYN FROST, ETHICS IN INTERNATIONAL RELATIONS 105 (1996).
−138−
tilateralism will play a role in shaping legitimate state action. More than a question of measuring mere compliance with international human rights standards, this is a question about the political will within inter-national society to enforce interinter-national human rights law. It is a ques-tion about whether the multilateral legal norms can gain sufficient le-gitimacy to mitigate the resistance from states and whether or not the tasks of norm legitimation on the setting of domestic-international interplays will have any significant implications. Analysis must conse-quently turn to how human rights will impact the behavior of certain types of states.