3.

Obviously, this indicates not only that to the statesmen international law
provides an instrument rather than a guide for action, but also that this tool
is often not used, when resort to it would hamper the state’s interest as
defined by the policy maker.
a. One of the reasons why international law often serves as a technique of
political mobilization is the appeal of reciprocity: “You must support my invocation
of the rule against him, because if you let the rule be vio-lated at my expense,
someday it may be breached at yours; and we both have an interest in its
preservation.” But reciprocity cuts both ways: My using a certain legal argument to
buttress my case against him may en-courage him, now or later, to resort to the same
argument against me; I may therefore be unwise to play on a chessboard in which,
given the solemn and abstract nature of legal rights and obligations, I may not be
able to make the kind of distinction between my (good) case and your (bad) one that
can best be made by resort to ad hoc, political and cir-cumstantial evidence that is
irrelevant or ruled out in legal argumen-tation.

Thus . . . during the Cuban crisis, when the United States tried to distinguish between Soviet
missiles in Cuba and American ones in Turkey in order to build its case and get support,
America’s use of the OAS [Organization of American States] Charter as the legal basis for its
“quarantine” established a dangerous precedent which the Soviets could use some day,
against the U.S. or its allies, on behalf of the War-saw Pact. And in the tragicomedy of the
battle over Article 19 of the U.N. Charter, one reason why the U.S. finally climbed down
from its high legal horse and gave up the attempt to deprive the Soviets of their right to vote,
unless they paid their share, was the growing awareness of the peril which the principle of the
exercise of the U.N. taxing power by the General Assembly could constitute some day for the
United States if it lost control of the Assembly.

b. One of the things that international law “communicates” is the solem-nity of a

commitment: a treaty, or a provision of the Charter, serves as a kind of tripwire or
burglar alarm. When it fails to deter, the victim and third parties have a fateful
choice between upholding the legal prin-ciple by all means, at the cost of a
possible escalation in violence, and choosing to settle the dispute more peacefully,
at the cost of fuzzing the legal issue. For excellent political reasons, the latter
 course is frequently adopted . . . in the form of dropping any reference to the legal
principle at stake. . . .
c. The very ambiguity of international law, which in many essential areas displays
either gaping holes or conflicting principles, allows policy mak-ers in an
emergency to act as if international law were irrelevant—as if it were neither a
restraint nor a guide. . .
d. However, precisely because there is a legal chessboard for state compe-tition, the
fact that international law does not, in a crisis, really restrict one’s freedom of
action, does not mean that one will forgo legal ration-alizations of the moves
selected. Here we come to the last set of consid-erations about the role of law:
4. The resort to legal arguments by policy makers may be detrimental to world
order and thereby counterproductive for the state that used such arguments.
a. In the legal vacuum or confusion which prevails in areas as vital to states as
internal war or the use of force, each state tries to justify its conduct with legal
rationalizations. The result is a kind of escalation of claims and counterclaims,
whose consequence, in turn, is both a further devaluation of international law and
a “credibility gap” at the expense of those states who have debased the currency.
America’s rather indiscriminate resort to highly debatable legal arguments to
support its Vietnam policy is a case in point. The unsubtle reduction of
international law to a mere storehouse of convenient ex post justifications (as in
the case of British intervention at Suez, or American interventions in Santo
Domingo and Vietnam) under-mines the very pretense of contributing to world
order with which these states have tried to justify their unilateral acts.
b. Much of contemporary international law authorizes states to increase
their power. In this connection, Nasser’s nationalization of the Suez Canal
Company was probably quite legal, and those who accept the rather tortured
argument put forth by the State Department legal advisers to justify the Cuban
“quarantine” have concluded that this partial blockade was authorized by the OAS
Charter and not in contradiction with the U.N. Charter. Yet it is obvious that a full
exploitation by all states of all permissions granted by international law would be
a perfect recipe for chaos.
c. Attempts to enforce or to strengthen international law, far from consolidat-ing a
system of desirable restraints on state (mis)behavior, may actually backfire if the
political conditions are not ripe. This is the central lesson of the long story of the
 financing of U.N. peace-keeping operations. American self-intoxication with the
importance of the rule of law, fed by misleading analogies between the U.N.
Charter and the U.S. Constitution, resulted ultimately in a weakening of the
influence of the World Court (which largely followed America’s line of
reasoning), and in an overplay-ing of America’s hand during the “non-session” of
the General Assembly in the fall of 1964 and winter of 1965.

These are sobering considerations. But what they tell us is not, as so many political
scientists seem to believe, that international law is, at best, a farce, and, at worst, even a
potential danger; what they tell us is that the nature of the international system condemns
international law to all the weaknesses and perversions that it is so easy to deride.
International law is merely a magnifying mirror that reflects faithfully and cruelly the essence
and the logic of international politics. In a fragmented world, there is no “global perspective”
from which anyone can authoritatively assess, endorse, or reject the separate national efforts
at making international law serve national interests above all. Like the somber universe of
Albert Camus’Caligula, this is a judgeless world where no one is innocent. . . .

The permanent plight of international law is that, now as before, it shows on its body
of rules all the scars inflicted by the international state of war. The tragedy of contemporary
international law is that of a double divorce: first, between the old liberal dream of a world
rule of law, and the realities of an international sys-tem of multiple minidramas that always
threaten to become major catastrophes; second, between the old dream and the new
requirements of moderation which in the circumstances of the present system suggest a
down-playing of formal law in the realm of peace-and-war issues, and an upgrading of more
flexible tech-niques, until the system has become less fierce. The interest of international law

for the political scientist is that there is no better way of grasping the continuing differences
between order within a national society and the fragile order of inter-national affairs than to
study how and when states use legal language, symbols, and documents, and with what
results. . . .

Questions for Review

If international law cannot be enforced, how can it influence states? Is international law
essentially a Western invention and a tool for Western dominance?