International lawyers are used to having their discipline dismissed. A conspicuous strand of thought in U.S. foreign policy circles — known as realist — posits that international law does not matter. Realists of course recognize that states and other global actors speak the language of international law. But they view this discourse as cheap talk or epiphenomenal. They contend that state decisions on the international plane are animated not by the dictates of international law but by material interests and power. States act consistently with international law insofar as they have independent reasons for acting that way. If those reasons dry up, states, especially powerful states, can just violate the law; because the international legal system lacks centralized enforcement agents, any repercussions for the violation will be determined not by law but by the participants’ own interests and power relations. International law is again irrelevant.
The realist position goes to the heart of the enterprise, so international relations and legal scholars have devoted enormous energy to refuting it. There is now an expansive literature on the efficacy of international law. Most of this work measures international law’s efficacy in terms that realists can appreciate, by asking whether international law helps to achieve specific policy outcomes — for example, reductions in greenhouse gas emissions, trade restrictions, or incidents of torture. The analysis ultimately turns on the facts. But it also entrenches a particular view of what makes international law worthwhile. It suggests that international law matters insofar as it advances the material outcomes that it itself prescribes.
International Law | Law
Why Should We Care About International Law,
Mich. L. Rev.
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