OF INTERNATIONAL NORMS

In most legal systems, rules and customs are normally observed for four distinct, although similar, reasons: (1) self-advantage, (2) habit, (3) prestige, and (4) fear of reprisal. Legal norms are a suitable basis for conducting transactions, particularly where they can help advance the values and interests of one party and where the other party, by observing the rules, can also expect some benefit. Rules simplify procedures between governments and are consequently of advan­tage to all. The expectation of reciprocity is an important factor in the observance of legal norms and obligations. A government accepts the obligations and restric­tions imposed by law because it expects, or hopes, that the partners with whom it is in a relationship will base their decisions and responses on similar legal criteria. Self-advantage is mutual. This does not mean that all other consider­ations are irrelevant to the making of foreign-policy decisions; it means, rather, that governments in most situations recognize and acknowledge the long-run

374 Law and World Opinion in Explanations of Foreign Policy

advantages—particularly reciprocity—of conforming their actions to legal norms. This realization tempers considerations of expediency, military "necessity," and short-run political advantages. When the advantages of law observation are clear and persistent, a habit or custom of conducting transactions according to certain principles and routines may also arise.

In addition to reciprocity and habit, another advantage of law observance is that a government may effectively raise its international prestige, and thus its diplomatic influence with other states, if it develops a reputation in the com­munity as a "law-abiding" state. A reputation for meeting treaty obligations and observing well-established legal principles in many types of transactions may be an important asset in the daily dealings of diplomats. Small states, in particular, may be able to obtain a sympathetic hearing from the governments of major powers if their reputation for observing legal obligations is well established.¹⁹ A government that persistently breaks treaties, defies resolutions of international organizations, and capriciously twists the accepted meaning of legal doctrines will lower its credibility in diplomatic negotiations and hence its influence. One need point only to the poor reputation of the Soviet Union until Stalin's death. For many years, Western governments were reluctant to enter into any trade or cultural negotiations with his regime on the ground that the Soviet government had violated the letter or spirit of many important political and commercial treaties to which it had been a signatory.

Negative sanctions, or fear of various forms of reprisal, may also prompt governments to observe their obligations. Development of norms relating to diplomatic immunities is a good example. It was common among new dynastic regimes in Europe not to accord immunities to foreign diplomats, with the result that sometimes foreign diplomats were abused, jailed, and even executed by the government to which they were accredited. But this situation did not prevail, because these governments quickly recognized that if they treated foreign diplomats in this manner, their own representatives abroad could be—and were—treated similarly.

In addition to self-interest, habit, prestige factors, and fear to reprisal, two other considerations must be mentioned as reasons why governments, when faced with alternative courses of action, often choose the one most closely in accord with legal obligations and established practice. First, all governments, whether they explicitly acknowledge it or not, desire at least some convenience, stability, and predictability in their external relations. The ordinary transactions

¹⁹ We can cite the case of Finland in the 1930s and 1940s to illustrate this generalization. The American government and people were very sympathetic to Finland's interests during this period, largely because Finland had earned a reputation for honesty as a result of being the only country to repay the United States every dollar it had previously borrowed. This one act of meeting obligations created inestimable public goodwill and official responsiveness toward Finland and, hence, increased Finnish diplomatic influence vis-a-vis the United States. Juhani Paasivirta, Suomen kuva Yhdysvalloissa (Helsinki: Werner Soderstrom, 1962), Chap. 10.

Law and World Opinion in Explanations of Foreign Policy

between nations, which are necessary to maintain economic viability, communica­tions, and even security, are based on routines protected by legal doctrines or treaties. If these transactions were made completely unpredictable by lack of law observance, chaos and the impossibility of orderly policy making would ensue. Even revolutionary regimes during their years of external aggressiveness willingly comply with many of the rules of law adhered to by their enemies simply in order to exist. For states with more modest external objectives, law observance for many types of transaction becomes so routine that policy makers would consider other alternatives only in great conflicts or emergencies. The desire for stability and predictability can also be seen when governments convene after great wars or periods of instability to make permanent the changes that had been achieved through political and military actions. The peace treaty— like many other types of treaty—creates a new order out of chaos, stability out of rapid change, and predictability out of uncertainty.

Governments may or may not accept the limitations on actions imposed by legal norms. Certainly, it is not difficult to cite obvious violations of interna­tional law. But diplomatic history also reveals abundant evidence that many statesmen do place high value on at least appearing to comply with written and unwritten rules, legal doctrines, and treaties and that in so doing they not only display concern over their prestige or possible retaliation, but demon­strate their belief in the ethical value of law observance. In selecting among alternative courses of action, policy makers do not always adopt a Machiavellian approach, thinking, "This time I will observe the law because I fear retaliation, or a lowering of my prestige, if I do not; but perhaps next time, if I think I can get away with it, I will disregard legal prohibitions and seek to achieve my objectives the quickest way possible and at least material cost." Law is, after all, more than a set of arbitrary rules derived from custom and treaties. Insofar as legal norms and "rules of the game" prevent governments from doing certain things, punish others, or prescribe certain courses of action, they reflect values and moraljudgments. The provisions of the United Nations Charter prohibiting the threat or use of force and the principles of the Genocide Conven­tion do not arise from custom, prior treaties, or court decisions. These rules— and many unwritten understandings—emanate directly from a widespread belief that the use of force or the systematic slaying of religious or ethnic groups is inherently immoral and ethically reprehensible.

The observance of these and many other types of rules thus derives from considerations other than convenience. Although policy makers often ex­cuse certain illegal actions as being dictated by the demands of "national secu­rity" or "national interest," they do not consistently break rules and norms just because they are acting in the name of the state. Men are usually anxious to do not only what is practical and convenient, but also what they believe is right. Policy makers, like private citizens, will frequently respect a rule or choose that course of action most consistent with legal norms, because they believe that the norms are intrinsically correct and ought to be observed regardless

376 Law and World Opinion in Explanations of Foreign Policy

of some particular disadvantage derived from their observance. An eminent international jurist, Charles De Visscher, has written that the observance of international law is ultimately a problem of individual attitudes and morality and not a question of the existence of lack of perfection in legal doctrines.

The problem of obligation in international law is part of the problem of obliga­tion in general, and this in turn is a moral problem. The distinction between ethical and legal categories, reasonable in itself and in many ways necessary, must not be pushed to the point of completely separating law from the primary moral notions to which all the normative disciplines are attached as to a common stem. Between States as within the State, law belongs to morals insofar as the idea of the just, which forms its specific content, is inseparable from the idea of the good, which is a moral idea. What, then, in the international sphere, is the order of facts, interests, ideas, or sentiments that can provide the moral substratum of obligation? Merely to invoke the idea of an international commu­nity ... is immediately to move into a vicious circle, for it is to postulate in men, shut in their national compartments, something that they will largely lack, namely the community spirit, the deliberate adherence to supranational values. No society has any legal foundation unless men believe in its necessity. The ultimate explanation of society as of law is found beyond society, in individual consciences.²⁰

FOREIGN EXPECTATIONS

AND "WORLD PUBLIC OPINION"

Поиск по сайту: