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Does power trump law?

The craving for an interpretation of history is so deep-rooted that, unless we have a constructive outlook over the past, we are drawn either to mysticism or to cynicism.

--Frederick Powicke Modern Historians and the Study of History (1)

On his right hand Billy tattooed the word love and on his left hand was the word fear And in which hand he held his fate was never clear....

--Bruce Springsteen Cautious Man (2)
 A. From Classical to Structural Realism: Anarchy
 Determines Outcomes
 B. Anarchy Management: Treaties Allow States to Manage
 Constraints and Dilemmas of an Anarchical International System
 C. Anarchy Transformation: Networks of Treaty Regimes and
 Institutions Construct and Strengthen an Emerging International
 Rule of Law
 D. Can This Debate Be Resolved?
 A. The Dominance of Realist Analysis in IR Scholarship
 B. Realism in American Jurisprudence
 C. U.S. Foreign Relations: Politics, Intellectual History,
 and Sociology
 D. A Realist Critique of Liberal Rhetoric
 A. Underinclusivity of Realist Theory
 B. Overinclusivity of Realist Theory
 C. Normative Justifications of Power
 D. Bush's "Americanism": Realism as Ideology




States have increasingly joined multilateral treaty regimes to regulate, manage, and improve their mutual relations. (3) In the 1979 edition of his seminal 1968 study How Nations Behave, Louis Henkin notes: "The number of agreements registered at the United Nations is more than ten thousand"; in addition, "[t]here are thousands of agreements in effect which are not registered at the United Nations." (4) Today the United Nations has registered over forty thousand multilateral treaties--a 400% increase in just over two decades--and the number is growing at a rate of 100 new volumes per year. (5) These treaties, "many of which concern fundamental functions of government," (6) regulate every significant field of global concern.

Since Henkin's pioneering work situated international law scholarship in the empirical assessment of overwhelming state compliance, (7) legal scholars in the liberal internationalist tradition have engaged in an ambitious research enterprise to investigate this phenomenon and assess its impact. (8) These scholars argue (1) that powerful norms of treaty compliance demonstrate the increasing autonomy of treaties and related institutions in an evolving international system, i.e., treaties constrain, influence, and shape the behavior of member states, and (2) that multilateral treaty regimes assume, or potentially assume, governance functions in an evolving international system, i.e., these regimes contribute to the transformation of the system and the identity of states acting within it.

In contrast, International Relations (IR) scholars in the realist tradition present a radically skeptical view. (9) As John Mearsheimer suggests, "[r]ealism paints a rather grim picture of world politics." (10) In this picture, the domain of "international relations" is defined by "relentless security competition" between states under conditions of "anarchy" (in the sense that there is no "government over governments"). (11) States must provide for their own defense and take care of their own security. No one else will do it for them; if they fail to do so sufficiently, "they are likely to pay a steep price ... because if an aggressor appears at the door there will be no answer when they dial 911. That is a risk few states are willing to run. Therefore, prudence dictates that they behave according to realist logic." (12) While "[c]reating a peaceful world is surely an attractive idea," it is by this logic "not a practical one." (13)

Moreover, "realist logic" leads to the conclusion that international law essentially doesn't matter (or doesn't matter very much). Law has little or no substantive impact in the brutal world of political and military conflict in which states must, ultimately, fight their way. (14) Recognizing that the IR discipline is "stunningly silent" on law's role in international affairs, the liberal political scientist Beth Simmons identifies her colleagues' "aversion to law as a central ordering element of international politics." (15)

Liberal international law scholars, dismissed by realists as hopelessly naive, (16) generally respond by ignoring or rejecting realist critiques. (17) Because I share the values and research agenda of liberal internationalists, I am concerned that we've too quickly thrown out the baby (compelling insights and useful tools realism offers) with the bathwater (its limits and slipperiness as an explanatory theory, and its tendency to justify status quo power arrangements as a consequence of anarchy's inexorable logic). I advocate taking realist arguments seriously, and responding to them with critical engagement, in order to more accurately assess the limits and potential of international regimes.

Part I of this Article identifies prominent approaches in international law and international relations scholarship according to their assessments of the relative autonomy and governance functions of treaties in the international system. This comparison suggests a fundamental opposition between realist and liberal internationalist conceptions of multilateral treaties. Part II suggests why liberal international law scholars should more fully address realist arguments in their own scholarship and advocacy. Part III identifies problems and dangers in the realist paradigm that warrant criticism and caution. In conclusion, I argue that realist perspectives are useful and necessary additions to the interdisciplinary "toolbox" we utilize to study and promote international law, sustainable development, global security, and human rights.


A. From Classical to Structural Realism: Anarchy Determines Outcomes

Realists of all varieties heed Machiavelli's warning that "security for man is impossible unless it be conjoined with power." (18) Leaders wishing to defend their state from attack must learn to master the strategic application of power and act accordingly in all circumstances and against all competitors. Clausewitz's dictum that war is a continuation of policy by other means (the sword instead of the pen) suggests its reverse, that "statecraft" is at its heart war by diplomatic means: Why use a sword when a pen will suffice? (19) But keep your sword sharp in the event negotiated agreements ultimately fail.

Hans Morgenthau and Henry Kissinger, refugees from Nazi Germany who became key figures in the American realist tradition, witnessed in the barbarity of European totalitarianism a twisted moral fervor antithetical to the fundamental human security upon which democratic political systems depend. Failing to recognize the reality of Hitler's rising military power, depleting their arsenals, relying on treaties and declarations to keep the peace, liberal democracies created the conditions under which the global slaughter of World War II could no longer be prevented. For Morgenthau and Kissinger, the ignominious failure of the West's political "idealism" from Versailles to Hitler's invasion of Poland is summed up in a single image of humiliation: Neville Chamberlain, upon his return from Munich to London on September 30, 1938 after handing the Sudetenland to Hitler, waving a document before cheering crowds: "[H]ere is the paper which bears his name upon it as well as mine." (20) Instead of achieving "peace in our time" as Chamberlain proclaimed, the Munich treaty fatally shifted the European balance of power in Hitler's favor, igniting the global catastrophe Churchill called "the Unnecessary War." (21)

Morgenthau's Politics Among Nations remains the seminal American work of realism in the "classical" tradition. Morgenthau's understanding of "the struggle for power and peace"--shaped by his own experience of the victory of fascism and antisemitism in his native Germany--carries over pessimistic assumptions concerning human psychology, and the drive for power, reflected in the worldview shared by Thucydides, Machiavelli, and Hobbes. (22) Morgenthau follows Spinoza's attack upon philosophers who "conceive men not as they are but as they would like them to be." (23) So Morgenthau's "functional" theory of international law concludes that "[a]ll the schemes and devices by which great humanitarians and shrewd politicians endeavored to reorganize the relations between states on the basis of law, have not stood the trial of history." (24)

"Neorealism" or "structural realism"--the most influential IR school since the 1979 publication of Kenneth Waltz's Theory of International Politics (25)--successfully revived realist theory by abandoning the classical tradition's preoccupation with psychology, thereby freeing itself of debatable assumptions about a supposedly innate drive to power.

For Waltz, the international system is composed of a decentralized, anarchic structure and of its interacting units (states). Waltz's anarchy is not a Hobbesian "warre of every man against every man" (26) but the absence of centralized, hierarchical governance structures such as those characterizing domestic authority systems in sovereign states. (27) As Weber defined the state as "a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory," (28) Waltz's conception of "anarchy" recognizes that no comparable monopoly exists in the international system; as a result, states must pursue their interests, and above all provide for their own survival, by means of self-help. "A self-help system is one in which those who do not help themselves, or who do so less effectively than others, will fail to prosper, will lay themselves open to dangers, will suffer." (29)

Economic development, enhanced through the exploitation of comparative advantages in international trade, has been an important interest of states for centuries. But in the context of structural constraints requiring states to rely on self-help to achieve necessary objectives, treaties and related institutions created to enhance transnational cooperation represent "a reflection of the distribution of power in the world"; they "matter only on the margins" and have "no independent effect on state behavior." (30) In an international system based on anarchy and self-help, state power determines (1) when, if, and how treaties are created and their substantive content, (2) the extent to which and how treaties are implemented, and who benefits, and (3) when treaties collapse and fail. Whatever their number, the causes and consequences of treaties reflect the underlying distribution of material capability and influence between the member states, i.e., the inequalities of power in the international system. This analysis is illustrated in Figure 1 below.


For neorealists (like the classical realists before them), treaties have little or no autonomy. Without international governance functions, they have no transformative impact upon the anarchical structure of the international system. (31) Subservient to state power, treaties are ultimately unreliable and weak. (32) In the end, power always trumps law. Why, then, do powerful states bother to make treaties? Only as a means: to exercise their power in furtherance of their political and economic interests. Why do weaker states participate? Because they have little choice. In words Thucydides attributes to an Athenian delegation seeking to persuade leaders of the small island of Melos, under Athenian siege, to submit: "[T]he strong do what they have the power to do and the weak accept what they have to accept." (33) So, for example, the realist IR scholar Stephen Krasner suggests that "[d]eveloping countries joined the WTO because they had no choice." (34)

B. Anarchy Management: Treaties Allow States to Manage Constraints and Dilemmas of an Anarchical International System

A second group of approaches, situating the proliferation of treaty regimes in a context of increasing global economic interdependence, shares certain core assumptions of realist theory: Sovereign states, as primary actors in an anarchical international system, exercise sovereignty by entering into agreements that, according to the rational assessment of state decisionmakers, promote and further their fundamental interests.

Models identified in Figure 2 below include three modified versions of structural realism: Krasner's "regime theory," (35) Jack Goldsmith and Eric Posner's "rational choice" analysis of international law rhetoric, (36) and Richard Steinberg's advocacy of "institutional realism" in U.S. trade policy. (37) They also include two liberal internationalist approaches: Robert Keohane's "neoliberalism," (38) and Anne-Marie Slaughter's "transgovernmental" networks of democratic states and multilateral institutions. (39)


Moving diagonally toward the upper right hand quadrant of Figure 2, these models attribute greater autonomy and constitutive functions to multilateral treaties. Notwithstanding substantial differences in emphasis indicated in the matrix, these approaches share an understanding that states elect by their placement to participate in cooperative treaty agreements to manage constraints imposed on them by the anarchical structure of the international system. These constraints include difficulties associated with "prisoner's dilemmas" (especially the risk of cheating), coordination problems, asymmetrical information, transaction costs, free riding, the "tragedy of the commons," and other challenges to collective action.

C. Anarchy Transformation: Networks of Treaty Regimes and Institutions Construct and Strengthen an Emerging International Rule of Law

A third group of international-law scholars goes substantially further in ascribing autonomy and international governance functions to multilateral treaty regimes. As these liberal internationalist models approach the upper right-hand corner of Figure 3 below, they suggest what Hedley Bull describes as "the Grotian conception of international society." (40) Sir Hersh Lauterpacht identifies "the subjection of the totality of international relations to the rule of law" as the primary feature of this Grotian tradition. (41)


Chayes and Chayes identify a "new sovereignty" created by the interpenetration of treaty regimes across and between national borders. (42) Thomas Franck identifies in the proliferation of international covenants and institutions evidence of a "globally shared notion of fairness." As a result, "[i]nternational law has matured into a complete legal system covering all aspects of relations among states," and other organizations and individuals. For Franck, the "exponential growth" of international law corresponds to "a prismatic change in the way in which humanity perceives itself" according to which individual governments are compelled "to think in terms of our common destiny." (43) As a result, "we are witnessing the dawn of a new era" and "an emerging sense of global community." (44)

Harold Hongju Koh, explicitly rejecting realism's "core assumptions" as "demonstrably false," (45) argues for "a thoroughgoing account of transnational legal process: the complex process of institutional interaction whereby global norms are not just debated and interpreted, but ultimately internalized by domestic legal systems." (46) The proliferation of treaty regimes, and the resulting "marked decline of national sovereignty" represent an "epochal transformation in international law," Koh asserts. Together, these trends have "restructured the planetary stage on which international law performs, making way for what Franck calls 'the post-ontological era' of mature and complex international law." (47)

Richard Falk, for whom treaty regimes cannot be meaningfully understood in isolation from an evolving world order system, has long articulated a comprehensive "post-Westphalian" vision of a "revitalized" international law "in an emerging global village." (48) Falk contests the "jurisprudential insult" associated with realist theory's attack on the legitimacy of international law, an attack Falk relates to the "self-serving acceptance by policy makers of some variant of 'realism' as the proper mode of thought pertaining to international relations." (49)

Philip Allott identifies in treaties legislation for international society, "a delegation of law-making power." (50) Insightfully flipping Clauswitz on his head, Allott suggests that the relevant struggles between states are no longer fought with swords, but with marked-up drafts of text exchanged across the diplomatic negotiating table:
 Negotiation is dominated by potential treaty-texts, most often
 prepared in advance, and the crux of the negotiation is a search for
 'forms of words' acceptable to all, or the relevant, participants.
 The passionate and formless world of politics is re-born as a world
 of words. Matters of great practical consequence, perhaps involving
 life and death on a great scale, are concentrated into the tiny mass
 of a few words, in a sort of ritualized trench warfare, in which big
 victories are measured in small gains of verbal territory. (51)

As this process continues, Allott sees international law "as a means of forming the future of the whole human species in accordance with human purposes." (52) Allott--bravely, I think--continues:
 International society will be a society in which the word love will,
 once again, have a meaning unconnected with trade and property....
 Love as the reconciling of the impulse of life and the necessity of
 the universe, the reconciling which all living things seek, as
 participants in the mysterious unfolding of a universe which
 contains, among other mysteries, the insignificant but very
 ambitious microcosm which is the international society of the whole
 human race. (53)

Reflecting on the most ambitious and hopeful conceptions of international law scholars in the post-Cold War era, one wonders whether they can best be understood, and most fairly evaluated, in the context of a historical moment: the widespread optimism that characterized much of liberal discourse, among academics and politicians alike, during the brief period between the collapse of the Soviet Union and the mass-murder of September 11, 2001. (54)

D. Can This Debate Be Resolved?

Do treaty regimes represent autonomous elements, and perform governance functions, in the international system? This question--at the heart of the realist-liberal internationalist debate--demands empirical investigation.

For liberal internationalists, significant evidence (the data collected in U.N. treaty archives, the powerful influence of economic regimes like the WTO on core policy formation in developing and developed states alike, the sociology of "transnational legal process") demonstrates that "[t]he world is witnessing a move to law." (55) This growing trend of international "legalization" is a key element and reflection of the larger, well-recognized "globalization" of international political economy at the dawn of the twenty-first century. "In the modern global economy," Koh argues, "the idea that the principal interest of rational states is in seeking and maintaining power and security is falsified by the growing importance and interdependence of economic transactions." (56)

But does one salient phenomenon "falsify" the other? Referring to "interdependence" as "the catchword of the day," Waltz recalls "the freely interacting, self-adjusting markets described by liberal economists of the nineteenth century." (57) England (with its policies of free trade following the 1846 repeal of the Corn Laws), the United States (with its borders "open to the free flow of people and capital"), Germany, Italy, and Eastern Europe (with fragmented states lacking the ability to control transnational economic movement) all experienced the flow of investment and labor "in volumes that are immense when measured against domestic populations and products and when compared to present-day movements." (58) For these reasons, the historian Asa Briggs describes the late nineteenth and early twentieth centuries as "the belle epoque of interdependence." (59)

Mearsheimer, citing empirical studies by Paul Hirst and Grahame Thompson, Janice Thompson and Stephen Krasner, and Robert Wade, reaches a similar conclusion: "[T]he levels of economic transactions among states today, when compared with domestic economic dealings, are probably no greater than they were in the early twentieth century." (60) The British historian E.H. Carr sets out the abysmal record of European states in upholding "the sanctity of treaties" under international law during that period. Carr's evidence suggests, on one hand, that "states interested in the maintenance of the status quo vigorously asserted the unconditional validity of treaties in international law," while, on the other hand, "a state whose interests were adversely affected by a treaty commonly repudiated it as soon as it could do so with impunity." (61)

In light of these conclusions, Mearsheimer brushes aside abundant "rhetoric about the growing strength of international institutions," treaty regimes, and international law. "[T]here is little evidence that they can get great powers to act contrary to the dictates of realism," he concludes. "I know of no study that provides evidence to support that claim." (62) On the contrary, Mearsheimer cites empirical scholarship by contemporary IR realists such as Joseph Grieco, Stephen Krasner, and Baldev Raj Nayer attacking empirical claims by liberal internationalists. He notes that "in a recent survey of the international institutions literature by two prominent institutionalists [Lisa Martin and Beth Simmons], little evidence is provided that institutions have caused states to alter their behavior in fundamental ways." (63)

Is this an empirical debate? Of course. But I don't believe that it will be resolved by comparing evidence and counterevidence. No empirical study will likely persuade anybody on either side to change their fundamental orientation to international relations or law. Does widespread transnational cooperation in the current period of immense economic "globalization" suggest a "post-ontological era" of "mature and complex international law" as Franck and Koh argue? (64) Or is today's promise of an emerging legally based world order, like the comparably "interdependent" and treaty-filled era Carr examined, a castle made of sand? Empirical research can make significant contributions to this discussion. But no amount of data, however expertly analyzed, will persuade liberals to abandon their liberalism, or realists their realism, going forward.

This is why I perceive these competing positions as alternative "worldviews." For similar reasons, John A. Vasquez describes realism as a "paradigm"--a "picture of the world"--rather than a "method" or even a "theory." (65) Vasquez refers to Thomas Kuhn's understanding that the "paradigm" concept includes "the entire constellation of beliefs, values, techniques, and so on shared by the members of a given community." (66) In realist literature, for example, we find frequent reference to "tragedy"; in liberal internationalist writing, "evolution." These recurring images suggest Kahneman, Ritov, and Schkade's concept of "attitude"--a "psychological tendency" to see and evaluate the world with a particular disposition, and consistent interpretation of data, without regard to "the logic of extensionality." (67)

The realist worldview carries forward the admonition of Sophocles's chorus in the final lines of Oedipus the King: "Look upon that last day always. Count no mortal happy till he has passed the final limit of his life secure from pain." (68) It evokes Walter Benjamin's bereft "angel of history": "Where we perceive a chain of events, he sees one single catastrophe that keeps piling wreckage on wreckage and hurls it in front of his feet." (69) In contrast, the liberal worldview is echoed in lines from Seamus Heaney's The Cure at Troy:
 The innocent in gaols
 Beat on their bars together.
 A hunger-striker's father
 Stands in the graveyard dumb.
 The police widow in veils
 Faints at the funeral home.//
 History says, Don't hope
 On this side of the grave.
 But then, once in a lifetime
 The longed-for tidal wave
 Of justice can rise up,
 And hope and history rhyme.//
 So hope for a great sea-change
 On the far side of revenge
 Believe that a further shore
 Is reachable from here. (70)

These opposing visions suggest a fundamental dialectic in human thought and culture. This dialectic is our inheritance. It cannot be "resolved."


You can run but you can't hide.

--Joe Louis

Each of the models in the previous Figures offers insights and analytical tools that should not be discarded. I strongly prefer an integrative approach--sustaining a plurality of voices, methods, and perspectives--to attempting a theoretical synthesis or "compromise" solution. Rather, my argument is more limited and focused: Liberal international law scholars cannot successfully ignore realist perspectives. Failure to address the legitimate and provocative questions realists present detracts

from the efficacy and influence of liberal international law discourse.

A. The Dominance of Realist Analysis in IR Scholarship

Realist perspectives remain dominant in current IR scholarship. (71) Scholars representing a variety of approaches within a realist paradigm generate volumes of new research on issues of paramount concern to international law scholarship. (72) As Daniel Deudney summarizes in a recent literature review: "The contemporary study of international politics exhibits unprecedented diversity, but there is widespread agreement that the realist tradition remains the most intellectually hegemonic, and that, within realism, anarchy remains the core theoretical variable." (73)

Moreover, the fundamental assumptions associated with realist theory have dominated competing schools of IR theory. For example, in a recent essay criticizing the coherence of the "realist" label in contemporary IR theory, liberal internationalists Jeffrey Legro and Andrew Moravcsik nonetheless affirm that realism remains "the most prominent theoretical paradigm in international relations." (74) To the extent that we ignore the "transmethodological consensus" among IR schools respecting the anarchical structure of the international system, (75) and fail to address realist arguments concerning the distribution and effect of state power on treaty regimes, we isolate ourselves from mainstream international relations discourse and undermine the interdisciplinary authority of our research.

B. Realism in American Jurisprudence

Students of American legal thought recognize "legal realism" as the dominant school (Karl Llewellyn preferred to call it a "movement") of liberal jurisprudence and interdisciplinary legal scholarship from the 1920s at least through the New Deal. (76) In the domestic context, legal scholars adopted realist intellectual frameworks and strategies to strengthen arguments against the use of legal doctrines, institutions, and decisionmaking to justify status quo power arrangements.

The domestic and international fields present radically different legal environments--as realist IR theory would be the first to recognize. But the "core ideas" of Llewellyn's version of realism, and its approach to the study of law, are remarkably similar to the analytical tools and legal analysis of IR realists today: the recognition that "law was a 'means to social ends and not ... an end in itself'; a 'distrust' of 'traditional legal rules and concepts,' as a description of what the system actually does; and an 'insistence on evaluation of any part of the law in terms of its effects.'" (77) According to the American legal historian Lawrence Friedman, the key to legal realism was "the revolt against formalism: the notion that rules were autonomous, independent of their social meaning." (78)

Richard Posner claims that "[l]egal realism failed to deliver on its promises, and by the end of World War II had petered out," (79) and Friedman acknowledges the subsequent "astonishing success" of law and economics in the legal academy. However, as Friedman suggests:
 In an important sense, legal realism ended up defeating its enemy
 almost totally. If today, you told a group of law professors (or
 lawyers, for that matter) that you thought politics had an important
 influence on the legal system; that rules were more malleable and
 less decisive than they appeared; that you believed law is not and
 can never be neutral, and other sentiments along these lines, they
 might very well yawn and agree. (80)

So it is ironic that liberal internationalists, perhaps the first to "yawn and agree" (or perhaps agree more aggressively) to the legal realist assumptions Friedman identifies in the domestic legal context may be the first to dismiss realist interpretations and arguments in the international domain.

One explanation for this anomaly might be an assumption by post-Vietnam War liberal international law scholars that "realism" corresponds to, and deliberately masks, "conservative" agendas concerning U.S. foreign policy. This association inevitably brings to mind Henry Kissinger, the most prominent diplomat of the postwar years, whose promotion of "balance of power" realism conflicts with liberal internationalist conceptions (at least to the extent that Kissinger's ideas shaped U.S. actions in Indochina and Chile during the Nixon Administration, but much less so to the extent Kissinger influenced the United States to open relations with the People's Republic of China and to treat the Soviet Union as a partner in detente rather than an ideological adversary). Even today, a quarter-century after he left the State Department, realpolitik and "Kissinger-style realpolitik" are synonymous concepts to analysts who oppose its implementation in U.S. foreign policy. (81)

However, while conservative international-law scholars generally embrace realist assumptions, (82) it is not true that realism necessarily demands support for the exercise of U.S. power. For example, prominent IR realists were at the forefront of public advocacy against the United States-led "preventive war" in Iraq, arguing that such a war would be likely to increase (a) proliferation of weapons of mass destruction by regimes seeking to deter U.S. military intervention in their state, (b) recruitment by Al-Qa'ida networks and other radical Islamist organizations, and (c) risks of anti-American terrorism at home and abroad. (83) Realism offers a sober analysis of power, and the costs of its utilization, that can be usefully applied to criticize unilateral state action and bolster liberal efforts to establish an international rule of law. (84)

In the domain of international political economy, liberals can utilize realist methods to rigorously examine the implementation of multilateral treaty regimes precisely to hold these regimes accountable to their declared purposes, and to expose the manipulations of power politics. (85) For example, this analysis would identify who is included and who is excluded in closed trade rounds where agendas are set and "hard" law is generated, (86) and it would investigate the domestic consequences of conditionality requirements these regimes impose on developing countries. (87)

C. U.S. Foreign Relations: Politics, Intellectual History, and Sociology

Liberal internationalist scholars cannot avoid taking realist perspectives into account if we wish to have an impact outside the academy and to influence the formation and implementation of U.S. policy.

Since the collapse of Woodrow Wilson's radical vision of liberal internationalism, the individuals with greatest influence over the architecture and implementation of U.S. foreign relations have uniformly advocated analyses and strategies within the realist self-help paradigm--even as they were "present at the creation" of important multilateral treaty regimes and institutions. (88) These individuals include Henry Stimson, George Marshall, John McCloy, George Kennan, Dean Acheson, James Forrestal, Harvey Bundy, John Foster Dulles, McGeorge Bundy, Robert McNamara, Paul Nitze, Henry Kissinger, Henry Jackson, George Schultz, Sam Nunn, Zbigniew Brzezinski, James Baker, Brent Scowcroft, Dick Cheney, and Donald Rumsfeld. (89)

The consistency of this pattern across both Republican and Democratic administrations suggests that it would be a mistake to dismiss an explanation based on Waltz's structural-realist analysis. Each of these key policymakers shared George Kennan's 1951 rejection of "the legalistic-moralistic approach to international problems." (90) Each advocated an approach to international relations consistent with Kissinger's understanding of the role of U.S. diplomacy in the creation of multilateral treaty regimes:
 It is an illusion of posterity that past international settlements
 were brought about entirely by reasonableness and negotiating skill.
 In a society of "sovereign" states, a power can in the last resort
 vindicate his interpretation of justice or defend its "vital
 interests" only by the willingness to employ force. Even during the
 period of seemingly greatest harmony, it was understood that a
 negotiation which failed did not return matters to their starting
 point but might call other pressures into play. The motive force
 behind international settlements has always been a combination of
 the belief in the advantages of harmony and the fear of the
 consequences of proving obdurate. (91)

Are there exceptions? One thinks of Secretaries of State and prominent diplomats with abundant respect for international law, including George Ball, Cyrus Vance, Ed Muskie, Warren Christopher, George Mitchell, and Colin Powell (and, in a dramatic political evolution, McNamara, McGeorge Bundy, Kennan, and Nitze after their years in government service). Harold Koh's work as Assistant U.S. Secretary of State for Democracy, Human Rights, and Labor in the Clinton Administration, for example, suggests evidence against Waltz's view that structural constraints require governments to use multilateral treaties as vehicles for extending state power. But this group of individuals-unfortunately, in my view--have been considerably less influential in framing U.S. foreign policy over the long term than the previously identified cohort (Brzezinski defeated Vance in a struggle for influence within President Carter's foreign policy team, for example, and Cheney and Rumsfeld's emphasis on the assertion of U.S. power has consistently undermined Powell's efforts to rely upon multilateral diplomacy in the Bush Administration's approach to international conflict). Moreover, when individuals in this latter group carried the most weight (e.g., Kennan in the Truman Administration, McNamara and Bundy under Kennedy and Johnson, Nitze from the 1960s through the 1980s) their "realism" consistently prevailed. In sum, it is difficult to find a prominent figure in post-Wilsonian U.S. foreign policy who does not share Kissinger's view that treaty regimes and institutions remain, when all is said and done, subservient to geopolitical power dynamics.

In this context, how can liberal internationalists identify realist strategies to promote international law? Keohane persuasively characterizes U.S. power in the years immediately following World War II as "hegemonic," and his analysis of this period suggests useful lessons. (92) For Keohane, a postcolonial hegemonic power cannot successfully exercise its power without substantial consent from weaker, yet still sovereign, states; this requires it to invest resources in treaty regimes and institutions, and to make important concessions to ensure cooperation. Accordingly, the United States assumed "hegemonic leadership" in the shaping of the United Nations, the Marshall Plan, the Bretton Woods institutions, and a wide variety of supporting treaty regimes, thus initiating and securing a period of "hegemonic stability," and heightened rule of law, in the international system. (93) This period ended with the rise of the Cold War; still, useful examples in subsequent years--integrating human rights and global security with realist approaches to the use of coercive diplomacy and economic leverage--deserve attention. (94)

Today, recognizing the fundamental and urgent need for extensive assistance and collaboration in fighting international terrorism, controlling weapons of mass destruction, and avoiding environmental catastrophe, a realist argument for multilateral leadership must be reasserted. Joseph Nye accurately describes international stability as the most important global public good and, simultaneously, our paramount national interest. (95) "If the largest beneficiary of a public good (for example the United States) does not take the lead in directing disproportionate resources toward its provision, the smaller beneficiaries are unlikely to be able to produce it, because of the difficulties of organizing collective action when large numbers are involved." (96) Keohane and Nye offer a persuasive analytical framework for an aggressively realist liberal internationalism as the United States finds itself once again in a "hegemonic" position at the turbulent outset of the twenty-first century.

D. A Realist Critique of Liberal Rhetoric

In his January 29, 1991 State of the Union address, President George Bush celebrated the free world's victory in the Cold War, and set out an ambitious liberal internationalist vision: "What is at stake is more than one small country: It is a big idea: a new world order--where diverse nations are drawn together in common cause, to achieve the universal aspirations of mankind: peace and security, freedom and the rule of law." The "small country" was Kuwait, which had been overran by Iraqi forces in a blatant violation of the United Nations Charter; the specific "common cause" at issue was the American-led "coalition" to enforce U.N. Security Council resolutions demanding Iraqi withdrawal. This was, according to James Baker, a war to protect America's "economic lifeline"; referring to Thucydides and his "stark expression of political realism," Baker argued that Operation Desert Storm became "inevitable" as a result of "the decline of Soviet power, the ascension of American power, and the fear this caused in Saddam." (97)

President Clinton's commitment to multilateral institutions, expanding trade, open markets, democratization, and human rights was no less expansive, and no less fraught with contradiction. "In a world where freedom, not tyranny is on the march," Bill Clinton declared in his first campaign for President, "the cynical calculus of pure power politics simply does not compute. It is ill-suited to a new era." (98) In 1997, President Clinton defended NATO expansion, for example, on the grounds that it represents "enlightened self-interest, as well as shared values" as against "the great power territorial politics of the 20th century." (99) However, notwithstanding Clinton's idealistic claims, one might appropriately ask whether NATO expansion really had nothing to do with efforts to provide security for former Soviet satellites against the potential threat of a resurgent Russia, just as one might wisely question whether "pure power politics" in fact disappeared in the Clinton era.

Like his predecessor's "new world order," President Clinton's assertion of a "new era" of freedom increasingly conflicted with the substantially darker reality of international politics. Throughout the 1990s, to the world's great misfortune, tyranny was very much on the march, and we witnessed the unraveling of Bush and Clinton's sweeping liberal internationalist visions. Meanwhile, in our celebrated era of free trade and liberal multilateralism in the global political economy, approximately three billion people (mostly in South or East Asia, or sub-Saharan Africa) live on less than two dollars a day; tens of millions lack food, shelter, clean water, or medicines necessary to survive, and have no access to education for their children. (100)

In addition to NATO expansion, Clinton's greatest diplomatic achievement (given the collapse of the Israeli-Palestinian "peace process" and the subsequent administration's withdrawal from the Kyoto Protocol) remains the mediation of the Dayton Accords. This treaty did, in fact, as Richard Holbrooke titles his memoir of the Dayton negotiation process, "end a war"--a horrendous war in Bosnia that only the United States, it turned out, had the power to stop. The Dayton mediation provides a powerful example of the positive side of "American exceptionalism" discussed by Professor Koh in the foreword to this Symposium. (101) It followed years when the supposed "shared values" of the world's free nations were insufficient to restrain the murderous dissolution of the Yugoslav nation, and months of humiliation when the "international community" through the United Nations promised Muslim men, women, and children safe havens the U.N. member states (including the United States) were in fact unwilling to protect.

Richard Holbrooke, the tough-minded American diplomat who brilliantly engineered the treaty's negotiation, makes clear that a successful result was achieved only because of the belated willingness of the United States to exert extensive military and political power. Holbrooke's memoir of the mediation process recounts a fascinating but disturbing story that suggests "the cynical calculus of pure power politics" far more than the "enlightened self-interest" of the international community that President Clinton had heralded. (102) Given the unspeakable circumstances and terrible alternatives, the Dayton regime remains an impressive achievement. It has kept the peace for more than seven years now, and no doubt saved countless lives. But this example suggests that important international treaties must be negotiated under conditions of intense conflict and massive violence, that resolution often suggests a bitter choice between least-bad alternatives, and that success or failure can depend upon the extent of the U.S. commitment to utilize its tremendous resources and power. Reflecting in 2002 upon the lessons of Dayton, Koh concludes: "For diplomacy to succeed in bringing about the peaceful settlement of intractable disputes, behind the diplomats must stand the threat of collective military action." (103)

Here Mearsheimer is right to talk about the "tragedy of power politics": on one hand, the tragedy that visions of new world orders based on the rule of law often amount to empty rhetoric; on the other, the tragedy that vitally important liberal goals cannot be achieved without strategic actions based upon the calculus of power politics. These are the troubling dilemmas that cannot be avoided in the effort to realize a liberal vision of international rule of law.


For all of its insights and pragmatic uses, the realist paradigm remains highly problematic and demands significant criticism.

A. Underinclusivity of Realist Theory

The realist paradigm has trouble explaining "hard law" treaty regimes (i.e., treaties that impose upon participating states firm, binding, precise legal obligations, explicitly delegating authority to third parties to implement and apply rules and resolve disputes) that emerged during the Cold War period, and continue to evolve. (104) For example, while the European Union fits within its explanatory theory as an example of states aligning to leverage power in transnational competition, realism fails to adequately explain the unprecedented extent to which European states have compromised their national sovereignty to participate as members (e.g., the legal authority granted by E.U. member states to the European Court of Human Rights, whose decisions supersede those of domestic courts or legislatures).

Realists might argue, in response, that Europe possesses unique characteristics precisely because of its Cold War-related enjoyment of U.S. military protection (especially the nuclear umbrella) and economic support (especially as a result of the Marshall Plan, in the most critical years following World War ID--providing the material capability for a peaceful political consolidation after more than 500 years of inter-European war. This is a strong argument. Still, the realist paradigm cannot effectively explain high levels of delegation in multilateral treaties such as the WTO and TRIPS. Nor can it explain evidence of effective strategies by developing states to leverage their collective power within treaty regimes and thereby achieve gains beyond what their individual material capabilities would otherwise allow. (105) Nor can it explain treaty regimes wherein dominant states apparently relinquish significant components of their geopolitical power, such as the 1977 United States-Panama Canal Treaties, or the SALT or START agreements between the United States and the Soviet Union, or the 1971-1972 Seabed Treaty prohibiting the nuclear militarization of the ocean floor.

B. Overinclusivity of Realist Theory

Realist theory attempts not only to describe and explain, but also to predict. Here the realist paradigm is terribly slippery. Treaty regimes wither or revive, collapse or expand. Either way, the realist paradigm "works." Either way, it says: just as I had told you.

In 1993, for example, Waltz expected NATO "to dwindle at the Cold War's end and ultimately to disappear." (106) Why? Because the anarchy paradigm demonstrates how treaty regimes, dependent upon the underlying balance of power (and in the Cold War context, threats by an adversarial superpower) collapse when those power dynamics shift and threats disappear. It soon turned out, of course, that this prediction was off the mark. No matter: The unexpected reconstitution and revival of NATO also proves the robustness of the anarchy paradigm. The ability of the United States to extend the life of a moribund institution," Waltz argues in 2000, "nicely illustrates how international institutions are created and maintained by stronger states to serve their perceived or misperceived interests." (107) In the end, NATO's transformation into "a means of maintaining America's grip on the foreign and military policies of European states" demonstrates how neorealism gets it right even when it gets it wrong.

The all-embracing nature of structural realist doctrine betrays its untrustworthiness. As Robert Keohane suggests, "[w]hen states violate rules, they must have had interests in doing so; when they refrain from reneging, their interests determined that as well. Like Viola in the first act of Twelfth Night, such an argument is 'fortified against all denial." (108)

C. Normative Justifications of Power

A further danger in realist theory demands careful attention: its tendency to slip into normative justifications for status quo distributions of power. Here Carr, Mearsheimer, and Waltz present illustrative examples.

In defining realism, Mearsheimer cites Carr with approval: "Realism tends to emphasize the irresistible strength of existing forces and the inevitable character of existing tendencies, and to insist that the highest wisdom lies in accepting, and adapting oneself to these forces and these tendencies." (109) But Carr, for all of his brilliance, so respected the "irresistible strength" of such forces and the "inevitable character" of such tendencies that he became an outspoken advocate of appeasing Nazi Germany; "the foremost proponent of abandoning southeastern Europe to Hitler's domination," Carr was a prominent supporter of Chamberlain's Munich achievement. (110)

Mearsheimer's "offensive realism" suggests the flip-side of Carr's adaptation to "inevitability." (111) Persuasively analyzing the likelihood of China's rise in economic, political, and military power over the coming decades, he proceeds toward a problematic normative conclusion: The United States should promptly "reverse course," cease efforts to integrate China into the world economy, abandon its policy of "constructive engagement," and "do what it can to slow" China's economic rise. (112) Predicting that China and the United States are "destined to be adversaries as China's power grows," (113) Mearsheimer advocates a policy that, if implemented, would contribute to a self-fulfilling prophecy of heightened political tension. This prescription--a heady mix of "offensive realism" and "destiny"--is a crude and costly medicine.

Waltz, advocating the structural logic of balance of power arrangements, emphasizes (as does the historian John Gaddis (114)) the stabilizing and caution-inducing effects of nuclear weapons during the Cold War. But Waltz takes a step in deference to "the inevitable character of existing tendencies" to insist that the highest wisdom lies in accepting, and adapting oneself, to nuclear proliferation on the Indian subcontinent, in East Asia, and throughout the world. (115) "The gradual spread of nuclear weapons," he argues, "is more to be welcomed than feared," (116) But Waltz's argument lacks common sense. He assumes that the historical constraints particular to the bipolar U.S.-Soviet context would equally apply in the Indian subcontinent, for example, or the Korean Peninsula, or in a resulting nuclear arms race throughout East Asia, and he insufficiently recognizes the narrowly averted dangers of the Cold War thermonuclear arms race. Impressed by Waltz's bravado (less so by the quality of his analogical thinking), I am chilled by the recklessness of his counsel.

D. Bush's "Americanism": Realism as Ideology

The administration of President George W. Bush stands out as a uniquely aggressive and extreme proponent of a normative realist paradigm in international affairs. (117) This paradigm is trumpeted to explain and justify U.S. actions to abandon, terminate, or sabotage a number of the most prominent bilateral and multilateral treaties in effect or development for decades. These actions include: unilateral withdrawal from the 1972 U.S.-Soviet Anti-Ballistic Missile Treaty; rejection of the Biological and Toxin Weapons Convention (BWC) Protocol and efforts to terminate further negotiations by the BWC Ad Hoc Group; failure to implement policies reducing greenhouse gases in compliance with requirements of the 1992 U.N. Framework Convention on Climate Control and unilateral rejection of the Kyoto Protocol; repudiation ("unsigning") of the Rome Statute of the International Criminal Court; and a variety of actions (including publication of a Nuclear Posture Review affirming the central role of nuclear weapons, and suggesting new technologies to accomplish new military objectives) in violation of the Nuclear Non-Proliferation Treaty's Article VI obligations to commence and complete good faith negotiations leading to complete nuclear disarmament. (118)

Each of these actions deserves substantial comment. (119) Listing them one after another, one is struck by the pattern of disrespect, if not disdain, for the process of international treaty-making, and treaty regimes that impose any constraints on U.S. autonomy (defined as the freedom to take unilateral action as it chooses).

The nationalist worldview underlying Bush Administration actions and policies related to treaty regimes is clearly articulated by John R. Bolton, Under Secretary of State for Arms Control and International Security. Bolton's worldview pits "Globalists" (an elite faction of dubious national loyalty eager to constrain and undermine U.S. sovereignty) against patriotic "Americanists" (unashamed to support the unilateral exercise of power in furtherance of U.S. interests). Globalists are a proportionally tiny faction consisting largely of academics and members of "self-styled human rights, environmental and humanitarian groups ... generally uneasy with the dominance of capitalism as an economic philosophy and individualism as a political philosophy," while "Americanists" consist of "virtually everyone else in the United States." The "overwhelmingly predominant" Americanist majority, of which Bolton proudly declares himself a "convinced" member and advocate,
 has no clue whatever that "global governance" is even an
 issue worth discussing, since, among other things, it has
 formed no part of any political campaign in recent memory.
 This large party cannot define global governance, does not
 think about it, and--when it is explained--typically rejects
 it unhesitatingly. (120)

Warning that the Globalists have stealthily pursued their anti-Americanist agenda (through years of "writing, conference-going, resolution-passing and networking"), Bolton describes an ideological battle of Biblical proportions.
 In substantive field after field--human rights, labor, health,
 the environment, political-military affairs, and international
 organizations--the Globalists have been advancing while the
 Americanists have slept. Recent clashes in and around the
 United States Senate indicate that the Americanist party has
 awakened, and that the harm and costs to the United States of
 belittling our popular sovereignty and constitutionalism, and
 restricting both our domestic and our international policy
 flexibility and power are finally receiving attention.
 Nonetheless, Americanists find themselves surrounded by small
 armies of Globalists, each tightly clutching a favorite new
 treaty or multilateralist proposal. (121)

Bolton attacks President Clinton for including Globalists in his Administration, for promoting treaty regimes such as the ICC, the Comprehensive Nuclear Test Ban Treaty (CTBT), and the Kyoto Protocol. (122) He refers with dismay to a United Nations-sponsored "Forum of Civil Society" allowing a greater role for NGOs in the United Nations's deliberation of issues of international concern. According to Bolton, "Mussolini would smile on the Forum of Civil Society," while "Americanists do not." (123) Knee-deep in fascism, the Globalists are even more profoundly tainted by communist fellow-traveling: Bolton reveals the "Marxist philosophical inclinations" underlying Globalist-supported efforts of "Third World" governments to obtain "increased flows of concessional assistance, the free transfer of technology from developed countries, and 'codes of conduct' for international businesses." (124)

Bolton identifies the U.N. Conference on Trade and Development, the U.N. Educational, Scientific and Cultural Organization, the Convention on the Law of the Sea, the 1992 Conference on Environment and Development (the "Rio Summit"), and the Kyoto Protocol with special scorn. He applauds Ronald Reagan's "Americanist" vote against the World Health Organization's Code on the Marketing of Breast Milk Substitutes (it passed by a vote of 118 to 1). (125) He praises the Senate for having "crushed" the CTBT in October 1999, "to the dismay of arms-control theologians around the world, celebrating "the first major treaty expressly rejected in the Senate since the Treaty of Versailles." (126)

Analogizing to the Senate's rejection of the League of Nations, and emphasizing the dominance of national interest in the calculus of U.S. foreign-policy decisionmaking, Bolton mirrors the anti-Wilsonian ideological assumptions of Kissinger's realpolitik. Both approaches emphasize geopolitical considerations over against the international liberalism symbolized by Wilson's failed efforts to create through diplomacy a peaceful world based on collective security and international law. However, in dramatic contrast to Bolton and Bush's Manichean political vision, Kissinger's realism always envisioned an international system stabilized by an explicitly or implicitly negotiated balance of power, an actively managed detente between the United States and its key ideological and military adversaries, and significant investment to maintain robust and healthy transatlantic relationships between Washington and the key Western European allies.

Kissinger's Diplomacy, his massive 1994 study of international relations from the emergence of a European balance of power system in the early seventeenth century to the contemporary post-Cold War era, concludes with the recognition that "vast global forces are at work that, over the course of time, will render the United States less exceptional.... America will be the greatest and most powerful nation, but a nation with peers; the primus inter pares but nonetheless a nation like others." (127) "Vast global forces" is suspicious enough, but the Latin is a smoking gun: Henry Kissinger is a writing-and-conference-going Globalist, after all. In the context of the September 11, 2001 atrocity, Diplomacy's Globalist conclusion is a prescient one:
 At a time when America is able neither to dominate the world
 nor to withdraw from it, when it finds itself both all-powerful
 and totally vulnerable, it must not abandon the ideals which
 have accounted for its greatness. But neither must it jeopardize
 that greatness by fostering illusions about the extent of its
 reach.... Otherwise, foreign policy will turn into self-righteous
 posturing. (128)

Failing to heed Kissinger's realist warnings, the Bush Administration has promoted an unabashed "Americanism": a vision of nation forever unlike others, and very much without peers. No one should doubt America's intention and ability to function as the dominant world power with forces strong enough "to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States." (129) In sum, the self-righteous posturing of Bush and Bolton's "Americanism" is an ersatz realism-realism as ideology--rightfully criticized by prominent liberals and IR realists alike for its shoddy logic and destructive effects.

As realists have emphasized since Thucydides, a great nation that in its actions inspires resentment among friendly and neutral states, generates hatred and humiliation among those who perceive themselves to be subjected to its power, and causes competing states to fear for their own security, will inspire alliances against it--alliances that threaten to undermine that nation's prosperity and security. (130) Unwilling or unable to foster multilateral cooperation, inspire mutual sacrifice, or share power with peers, such a nation may impose its will during periods of ascendancy; but, over time, its achievements and well-being will be marred by unnecessary suffering. This lesson reflects the tragedy of power politics, and the insight of the formidable realist tradition, over centuries of bitter experience.


The most compelling strength of realist theory is its refusal to assume that periods of peace, prosperity, and cooperation in international relations will continue on their own accord--that transnational networks of commerce, trade, and peace will build upon each other until the entire international system is transformed into a global rule of law. Dismissing realism as an analytical framework (or ignoring its often disturbing questions and insights) we lose our balance--diminishing our ability to influence, persuade, and achieve liberal internationalist goals.

The greatest deficiency of realist thought is its tendency to extend beyond descriptive and explanatory models into normative claims and policy demands (to which fearful constituents are particularly vulnerable). When "realism" is used reflexively to condemn efforts at treaty-making in the face of security threats as "appeasement"--the Munich analogy trotted out for good measure, regardless of the historical differences--and to justify the unilateral exercise of power, even if such actions undermine and threaten to dismantle valuable networks of transnational cooperation, it can become an intellectual cover for jingoism. Embracing realism as a complete worldview (or, most dangerously, as an ideology) we also lose our balance--and the vision we need to push forward.

Louis Henkin pointed in the right direction in his inspiring yet sober 1968 work, How Nations Behave--a more modest and compelling path than prominent liberal colleagues have, at times, pursued. Notwithstanding important developments since the formation of the U.N. Charter (still, the most important treaty in the international system), Henkin recognizes that "the international legal system remains primitive and its radical development is not in sight." (131) Henkin hopes that new and stronger agreements will be reached, especially in the area of nuclear weapons proliferation, environmental protection and resource management, Middle East peacemaking, and international terrorism; this list, assembled thirty-five years ago, identifies the most pressing matters still on the international agenda. It is urgent, even more urgent now than it was then, that we get to them.

Henkin properly emphasizes that "[i]mportant consequences for law observance will flow, of course, from the examples of important nations."
 Nations with special interest in and avowed dedication
 to order have special responsibility: it is time that
 such nations take an affirmative lead in demonstrating
 the importance of law to international stability. They
 need to be scrupulous about their own behavior, shed
 their own suspicions and hesitations about international
 law, reverse the trend to erode law and reduce once-legal
 questions to issues for diplomacy or unilateral decision,
 and affirmatively seek extension of the law's domain. (132)

In a post-9/11 world where the protection of civilian lives in our own country and abroad depends on networks of international cooperation, intelligence coordination, and especially nonproliferation of weapons of mass destruction, Henkin's words have a special poignancy. How can we effectively persuade nations to decline membership in the club of nuclear weapons, and adhere to the strict requirements of the Non-Proliferation Treaty, when the United States fails to comply with the treaty's article VI disarmament obligations? How can we encourage multilateral cooperation in furtherance of common goals, and prevent shared disasters, when we abandon and undermine important international agreements on global climate change, nuclear testing, and international justice? Henkin's argument highlights the dangerously unrealistic assumptions behind the current administration's "Americanist" ideology: Without committed friends and allies, without partners in cooperative treaty relationships of mutual respect, we will fail, in the end, to achieve even our most self-interested goals. This is the "interdependence" in which the international system operates.

In conclusion, Henkin rejects theories that push analysis to the extreme:
 Law, I sum up, is a major force in international
 relations and a major determinant in national policy.
 Its influence is diluted, however, and sometimes
 outweighed, by other forces in a "developing" international
 society. Failure to appreciate the strengths and weaknesses
 of the law underlies much misunderstanding about it and many
 of the controversies about its significance. "Realists" who
 do not recognize the uses and the force of law are not
 realistic. "Idealists" who do not recognize the law's
 limitations are largely irrelevant to the world that is. (133)

Finding Henkin's balance, investigating cooperative solutions to the global problems he identifies, and fighting for the international society he imagines, liberal legal scholars and advocates stand on firm ground.


(2.) Bruce Springsteen, Cautious Man, on TUNNEL OF LOVE (Columbia Records 1987).

(3.) According to Stephen Krasner's widely referenced definition, "regimes" are "sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors' expectations converge in a given area of international relations." Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in INTERNATIONAL REGIMES 2 (Stephen D. Krasner ed., 1983). Krasner's definition excludes reference to either (1) the legal instrument upon which regimes are built (i.e., the underlying treaty text), or (2) the international-law context in which regimes are created and treaties enforced.

(4.) LOUIS HENKIN, HOW NATIONS BEHAVE 47 n. * (2d ed. 1979).

(5.) United Nations Treaty Collection, at (last visited May 29, 2003).

(6.) Thomas C. Heller & Abraham D. Sofaer, Sovereignty: The Practitioners' Perspective, in PROBLEMATIC SOVEREIGNTY: CONTESTED RULES AND POLITICAL POSSIBILITIES 31 (Stephen D. Krasner ed., 2001).

(7.) Henkin famously argues that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." HENKIN, supra note 4, at 47.

(8.) By "liberal internationalists," I mean scholars who view the expansion and strengthening of international law as important and good.

(9.) By "realists" I mean scholars for whom the distribution of power (economic, political, and military) among states determines relations and outcomes in the international system.

(10.) John J. Mearsheimer, The False Promise of International Institutions, INT'L SECURITY, Winter 1994/95, at 5, 9.


(12.) MEARSHEIMER, supra note 11, at 51.

(13.) Id. at 17.

(14.) Important works in the field, presenting theories purporting to describe the structure of the international system in its entirety, contain no reference to international law. See, e.g., id.; KENNETH N. WALTZ, THEORY OF INTERNATIONAL POLITICS (1979).

(15.) Beth A. Simmons, International Law and International Relations: Scholarship at the Intersection of Principles and Politics, 95 AM. SOC'Y INT'L L. PROC. 271, 271-72 (2001). Simmons notes that the words "international law" can be found in the titles of articles in the major political science journal American Political Science Review only twice since the end of World War II: the first time in 1953, the second time in 2000 (it was her own article). Simmons cites similar data for the other top IR journals. Id. at 272, 279.

(16.) See, e.g., Stephen D. Krasner, Realist Views of International Law, 96 AM. SOC'Y INT'L L. PROC. 265, 268 (2002) ("It is naive to expect that a stable international order can be erected on normative principles embodied in international law.").

(17.) See, e.g., Richard Falk, Reframing the Legal Agenda of World Order in the Course of a Turbulent Century, in REFRAMING THE INTERNATIONAL: LAW, CULTURE, POLITICS 46 (Richard Falk, Lester Edwin J. Ruiz & R.B.J. Walker eds., 2002); Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181, 192 (1996). Outstanding exceptions include Richard Steinberg's studies of power dynamics in multilateral trade regimes, see Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 INT'L ORG. 339 (2002), and John Barton's influential research on the impact of intellectual property and technology transfer regimes on developing countries, see COMM'N ON INTELLECTUAL PROP. RIGHTS, EXECUTIVE SUMMARY: INTEGRATING INTELLECTUAL PROPERTY RIGHTS AND DEVELOPMENT POLICY (2002) [hereinafter CIPR], available at CIPR_Exec_Sum.pdf.


(19.) 1 CARL VON CLAUSEWITZ, ON WAR 119 (Anatol Rapoport ed., Penguin Books 1968) (1832).

(20.) Prime Minister Neville Chamberlain, Remarks on His Return from Munich (Sept. 30, 1938), quoted in ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 75 (2000).

(21.) WINSTON CHURCHILL, THE GATHERING STORM, at viii (1948). Ironically, Morgenthau eventually came to attack the U.S. war in Vietnam, a policy that in its extended closing years the younger Kissinger shaped and implemented as Nixon's Secretary of State and National Security Advisor (a policy initiated and defended by a "domino theory" based in large measure on the misapplication of the Munich analogy). See HANS J. MORGENTHAU, VIETNAM AND THE UNITED STATES (1965); see also YUEN FOONG KHONG, ANALOGIES AT WAR: KOREA, MUNICH, DIEN BIEN PHU, AND THE VIETNAM DECISIONS OF 1965, at 178-85 (1992).

(22.) For Morgenthau, "[a]ll human beings seek power and, hence, seek social distinctions ... that put them ahead of and above their fellow men." HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 266 (Hans J. Morgenthau & Kenneth W. Thompson eds., 5th ed. 1978). Unable to satisfy this desire for power in daily life, people "project those unsatisfied aspirations onto the international scene. There they find vicarious satisfaction in identification with the power drives of the nation." Id. at 108-09.


(24.) Hans J. Morgenthau, Posivitism, Functionalism, and International Law, 34 AM. J. INT'L L. 260, 260 (1940).

(25.) Waltz, supra note 14.

(26.) THOMAS HOBBES, LEVIATHAN 188 (C.B. Macpherson ed., Penguin Books 1968) (1651).

(27.) WALTZ, supra note 14, at 88-89. Alexander Wendt, an important "constructivist" critic of structural realism, argues persuasively that Waltz's anarchy corresponds to "the relatively self-restrained Lockean culture." ALEXANDER WENDT, SOCIAL THEORY OF INTERNATIONAL POLITICS 285 (1999).

(28.) MAX WEBER, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77, 78 (H.H. Gerth & C. Wright Mills eds. & trans., 1946).

(29.) WALTZ, supra note 14, at 118.

(30.) Mearsheimer, supra note 10, at 7 (emphasis added).

(31.) WALTZ, supra note 14, at 114-16.


(33.) 5 THUCYDIDES, HISTORY OF THE PELOPONNESIAN WAR 402 (Rex Warner trans., Penguin Books 1972). Refusing to submit, relying instead on the false hope of Spartan assistance "for honour's sake, and because we are their kinsmen," the Melians--abandoned by the Spartans, as the Athenians had warned--lost everything: their island, invaded and occupied; their men, slaughtered; their women and children, enslaved. Id. at 404. Thucydides describes the Athenians' actions and argumentation, endorsing neither. On the contrary, his History demonstrates that Athens was itself crushed in the end, precisely because--in its relentless and brutal "realism" in the Melian case and many others--the Athenians generated fear and hatred among states that would otherwise be neutrals or even allies. As a result, they empowered their enemies--enabling them to recruit new alliance members, and fueling their ultimately successful and devastating campaign for revenge.

(34.) Krasner, supra note 16, at 267.

(35.) See Krasner, supra note 3, at 355-67. By identifying regimes as "intervening variables," Krasner argues persuasively that recognition of the "structural causes" of multilateral agreements, institutions, and processes does not preclude recognition of their material consequences on state behavior. Id.; see also STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999).

(36.) See, e.g., Jack L. Goldsmith & Eric A. Posner, Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective, 31 J. LEGAL STUD. S115 (2002).

(37.) See, e.g., Richard H. Steinberg, Great Power Management of the World Trading System: A Transatlantic Strategy for Liberal Multilateralism, 29 LAW & POL'Y INT'L BUS. 205 (1998).

(38.) See ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY 82-109 (1984). For Keohane, states use treaties to correct costly "market failures" in international political economy. Id. at 97.

(39.) Anne-Marie Slaughter, A Liberal Theory of International Law, 94 AM. SOC'Y INT'L L. PROC. 240 (2000); Anne-Marie Slaughter, The Real New World Order, 76 FOREIGN AFF. 183 (1997).

(40.) Hedley Bull, The Grotian Conception of International Society, in DIPLOMATIC INVESTIGATIONS: ESSAYS IN THE THEORY OF INTERNATIONAL POLITICS 51 (Herbert Butterfield & Martin Wight eds., 1966).

(41.) Hersh Lauterpacht, The Grotian Tradition in International Law, 23 BRIT. Y.B. INT'L L. 1, 19 (1946).



(44.) Id. at 10-11.

(45.) Koh, supra note 17, at 192.

(46.) Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2602 (1997) (emphasis added). Two examples cited by Koh in 1996 and 1997 can no longer be considered evidence that "transnational legal process" compels state obedience to treaty obligations (or negotiation of new agreements) when national leaders seek to act outside of treaty constraints: (a) continued compliance by the United States with the U.S.-Soviet Anti-Ballistic Missile (ABM) Treaty (subsequently terminated by U.S. withdrawal); and (b) continued Israeli compliance with the Oslo Accords (a treaty regime now, tragically, in shambles). Id. at 2646-48, 2651-54; Koh, supra note 17, at 194-95.

(47.) Koh, supra note 46, at 2604.


(49.) Falk, supra note 17, at 46-47.

(50.) Philip Allott, The Concept of International Law, in THE ROLE OF LAW IN INTERNATIONAL POLITICS: ESSAYS IN INTERNATIONAL RELATIONS AND INTERNATIONAL LAW 69, 81 (Michael Byers ed., 2001).

(51.) Id. at 84.

(52.) Philip Allott, New International Law: The First Lecture of the Academic Year 20, in THEORY AND INTERNATIONAL LAW: AN INTRODUCTION 107, 115-16 (1991)


(54.) This melancholy interpretation was suggested by Professor Koh's compelling foreword to this Symposium. See Harold Hongju Koh, On American Exceptionalism, 55 SWAN. L. REV. 1479 (2003).

(55.) Judith Goldstein, Miles Kahler, Robert O. Keohane & Anne-Marie Slaughter, Introduction: Legalization and World Politics, in LEGALIZATION AND WORLD POLITICS 1 (Judith Goldstein, Miles Kahler, Robert Keohane & Anne-Marie Slaughter eds., 2001).

(56.) Koh, Transnational Legal Process, supra note 17, at 192.

(57.) WALTZ, supra note 14, at 139-40.

(58.) Id. at 140 (emphasis added).

(59.) Id. (quoting Asa Briggs, The World Economy: Interdependence and Planning, in 12 THE NEW CAMBRIDGE MODERN HISTORY 47 (1968)).

(60.) MEARSHEIMER, supra note 11, at 365, 520 n.8.

(61.) CARR, supra note 32, at 182.

(62.) MEARSHEIMER, supra note 11, at 364.

(63.) Id. at 364 n.3 (citing Lisa L. Martin & Beth A. Simmons, Theories and Empirical Studies of International Institutions, 52 INT'L ORG. 729-57 (1998)).

(64.) Koh, supra note 46, at 2604 (quoting THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 6 (1995)).


(66.) Id. at 19-20 (quoting THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 175 (1970)).

(67.) Daniel Kahneman, Ilana Ritov & David Schkade, Economic Preferences or Attitude Expressions? An Analysis of Dollar Responses to Public Issues, in CHOICES, VALUES AND FRAMES 644 (Daniel Kahneman & Amos Tversky eds., 2000).

(68.) SOPHOCLES, OEDIPUS THE KING 78 (David Grene & Richmond Lattimore eds., David Grene trans., Univ. of Chi. Press 1992).

(69.) Gershom Scholem, Walter Benjamin and His Angel, in ON JEWS AND JUDAISM IN CRISIS 232 (Wemer Dannhauser ed., 1976) (quoting WALTER BENJAMIN, NINTH THESIS ON THE PHILOSOPHY OF HISTORY (1940)).


(71.) See, e.g., Robert Jervis, Realism in the Study of World Politics, 52 INT'L ORS. 971 (1998); Kenneth N. Waltz, Structural Realism After the Cold War, INT'L SECURITY, Summer 2000, at 5.

(72.) See, e.g., JOSEPH M. GRIECO, REALIST INTERNATIONAL THEORY AND THE STUDY OF WORLD POLITICS, NEW THINKING IN INTERNATIONAL RELATIONS THEORY (1997); Charles L. Glaser, Realists as Optimists: Cooperation as Self-Help, in THE PERILS OF ANARCHY 394-97 (Michael E. Brown, Sean M. Lynn-Jones & Steven E. Miller eds., 1995); Robert Jervis, Realism, Neoliberalism and Cooperation: Understanding the Debate, INT'L SECURITY, Summer 1999, at 42; Mearsheimer, supra note 10, at 17-22.

(73.) Daniel H. Deudney, Regrounding Realism: Anarchy, Security, and Changing Material Contexts, 10 SECURITY STUD. 1 (2000).

(74.) Jeffrey W. Legro & Andrew Moravcsik, Is Anybody Still a Realist?, INT'L SECURITY, Fall 1999, at 5, 8. Even Alexander Wendt's Social Theory of International Politics, a prominent work in constructivist theory, explicitly shares the realist assumption that the structure of the international system "is an anarchy, defined as the absence of centralized authority." WENDT, supra note 27, at 246; see also Jack Snyder, Anarchy and Culture: Insights from the Anthropology of War, 56 INT'L ORG. 7 (2002). Snyder argues that recent empirical scholarship in cultural and social anthropology provide substantial evidence supporting IR conceptions of anarchy.

(75.) Legro & Moravcsik, supra note 74, at 20.


(77.) Id. (quoting Karl N. Llewellyn, Some Realism About Realism: Responding to Dean Pound, 44 HARV. L. REV. 1222, 1236-37 (1930)).

(78.) Id.


(80.) FRIEDMAN, supra note 76, at 493.

(81.) See JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 112 (2002). "Realpolitik" is defined by Kissinger as "foreign policy based on calculations of power and the national interest." HENRY KISSINGER, DIPLOMACY 137 (1994).

(82.) A prominent example can be found in the scholarship and career of Eugene V. Rostow, former Dean of Yale Law School. See EUGENE V. ROSTOW, LAW, POWER AND THE PURSUIT OF PEACE 14-15 (1968).

(83.) See Robert J. Lieber, Foreign Policy "Realists" Are Unrealistic on Iraq, CHRON. HIGHER EDUC., Oct. 18, 2002, at B15; John J. Mearsheimer and Stephen M. Walt, Keeping Saddam Hussein in a Box, N.Y. TIMES, Feb. 2, 2003, at WK15; see also Walter Gibbs, Scowcroft Urges Wide Role for the U.N. in Postwar Iraq, N.Y. TIMES, Apr. 9, 2003, at B6.

(84.) See, e.g., WILLIAM O. DOUGLAS, INTERNATIONAL DISSENT: SIX STEPS TOWARD WORLD PEACE 55-71 (1971). Like Morgenthau, Douglas used realist arguments to oppose the Vietnam War and advocate for an international legal order. Id. at 21-25.

(85.) See STIGLITZ, supra note 81, at 21-22. Stiglitz praises the Bretton Woods treaties (and the multilateral institutions they created) for their original liberal vision, and for their attention (particularly in the 1960s, when Robert McNamara directed the World Bank) to the development needs of the poorest nations. However, Stiglitz argues that the political context changed, from the appointment of William Clausen to the helm of the World Bank through the Reagan years until today, when "structural adjustment" replaced poverty alleviation as an institutional priority.

(86.) See Steinberg, supra note 17.

(87.) See, e.g., CIPR, supra note 17.

(88.) See, e.g., Falk, supra note 17, at 47-48; see also DEAN ACHESON, PRESENT AT THE CREATION: MY YEARS IN THE STATE DEPARTMENT (1969).

(89.) I deliberately refer to realist "perspectives," "analyses," and "strategies" in the plural form. Kennan's "realism," for example, not only differed from Acheson's version but these diplomats often found themselves in bitter opposition. Differences in approach between Kennan and Dulles were even more famously radical and antagonistic. Ongoing disputes remain between Scowcroft and Rumsfeld.

(90.) GEORGE F. KENNAN, AMERICAN DIPLOMACY, 1900-1950, at 82 (1951). Kennan called this approach "the most serious fault of our past policy formulation" and claimed that it "runs like a red skein through our foreign policy of the last fifty years." Id.


(92.) According to Keohane, to be considered "hegemonic," a state "must have access to crucial raw materials, control major sources of capital, maintain a large market for imports, and hold comparative advantages in goods with high value added, yielding relatively high wages and profits." KEOHANE, supra note 38, at 33-34.

(93.) Id. at 12, 31-39, 101,135-81.

(94.) For example, Jackson was an effective voice in U.S. efforts to apply human rights criteria to decisions concerning U.S.-Soviet relations. Nunn, the influential Chairman of the Senate Armed Services Committee, was an aggressive opponent of Reagan's massive SDI "star wars" plans, and an equally aggressive defender of the U.S.-Soviet ABM Treaty. FRANCES FITZGERALD, WAY OUT THERE IN THE BLUE: REAGAN, STAR WARS AND THE END OF THE COLD WAR 251, 254, 290 (2000). Following the collapse of the U.S.S.R., Nunn's successful efforts in collaboration with Richard Lugar to negotiate U.S.-Russia agreements securing nuclear weapons laboratories and materials throughout the former Soviet Union initiated a far more effective policy than the United States and IMF-sponsored efforts to impose a "shock therapy" version of economic liberalization in Russia. See STEPHEN F. COHEN, FAILED CRUSADE: AMERICA AND THE TRAGEDY OF POST-COMMUNIST RUSSIA 109 (2000).

(95.) Joseph S. Nye, Jr., The American National Interest and Global Public Goods, 78 INT'L AFF. 233 (2002).

(96.) Id. at 239-40.


(98.) Mearsheimer, supra note 10, at 23.

(99.) Text of President Clinton's News Conference at the NATO Summit in Madrid, WASH. POST, July 10, 1997, at A25.

(100.) CIPR, supra note 17, at 8.

(101.) Koh, supra note 54 at 1491.

(102.) Holbrooke acknowledges that the Dayton mediation could not have succeeded (and indeed, it very nearly failed anyway) if it were not for: (1) the successful completion of massive ethnic cleansing of Muslim civilians by Serb paramilitary forces and Serb civilians by Croat paramilitary forces (the latter with U.S. support); (2) NATO bombing of Serbian positions surrounding Sarajevo; (3) the power-brokering of Slobodan Milosovic, the Serbian leader most responsible for the war's massive atrocities; (4) the ability to virtually lock up entire foreign delegations at the Wright-Patterson United States Air Force Base in Dayton, Ohio, for three full weeks; and (5) most importantly of all, the installation of IFOR troops to separate the warring ethnic groups over the long term. See RICHARD HOLBROOKE, TO END A WAR (1998).

(103.) Harold Hongju Koh, A United States Human Rights Policy for the 21st Century, 46 ST. LOUIS U.L.J. 293, 324 (2002).

(104.) This description of "hard law" treaties follows Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter & Duncan Snidal, The Concept of Legalization, in LEGALIZATION AND WORLD POLITICS, supra note 55, at 17-35.


(106.) Kenneth N. Waltz, The Emerging Structure of International Politics, INT'L SECURITY, Fall 1993, at 44, 75-76.

(107.) Id. at 21.

(108.) Robert O. Keohane, International Relations and International Law: Two Optics, 38 HARV. INT'L L.J. 487, 490-91 (1997) (citing WILLIAM SHAKESPEARE, TWELFTH NIGHT act 1, sc. 5).

(109.) MEARSHEIMER, supra note 11, at 17 (citing CARR, supra note 32, at 10).

(110.) JONATHAN HASLAM, THE VICES OF INTEGRITY: E.H. CARR, 1892-1982, at 57-80 (1999); Jonathan Haslam, Carr's Search for Meaning, in E.H. CARR: A CRITICAL APPRAISAL 26-27 (Michael Cox ed., 2000).

(111.) Mearsheimer argues that offensive realism is a prescriptive as well as explanatory theory. "States should behave according to the dictates of offensive realism, because it outlines the best way to survive in a dangerous world." MEARSHEIMER, supra note 11, at 11.

(112.) Id. at 401-02.

(113.) Id. at 4.



(116.) Id. at 45.

(117.) See PRESIDENT OF THE UNITED STATES, THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 34 (Sept. 2002), at (highlighting the Bush administration's emphasis on unilateralism, power, and preemption in international relations).

(118.) See INST. FOR ENERGY AND ENVTL. RESEARCH AND LAWYER'S COMMITTEE ON NUCLEAR POLICY, RULE OF POWER OR RULE OF LAW? AN ASSESSMENT OF U.S. POLICIES AND ACTIONS REGARDING SECURITY-RELATED TREATIES 9-11, 57 (2002). The Bush Administration can point to one security treaty "success": the May 24, 2002 "Moscow Treaty" committing the United States and the Russian Federation to a reduction of strategic nuclear warheads to a level of 1700 to 2200 by December 31, 2012. While any such effort is commendable, the "Moscow Treaty" is misleading: It reduces only "operationally deployed strategic" warheads, requiring no warheads or delivery systems to be dismantled or destroyed (only put in storage). As a result, on January 1, 2013, "the United States and Russia will each have over ten thousand nuclear weapons--exactly what they have today." Joseph Cirincione, The Moscow Treaty Will Not Eliminate Weapons or Reduce Arsenals, APS PHYSICS & SOC'Y NEWSL., July 2002, available at npp/pdf/moscowtreatyphysicsandsociety.pdf. Defense Secretary Donald Rumsfeld explained that the Moscow Treaty "is an agreement that reflected something that the President of the United States announced he intended to do regardless of what Russia did," i.e., it imposes no constraints on U.S. sovereignty or freedom of action. Testimony for the Senate Foreign Relations Committee Regarding the Moscow Treaty (July 17, 2002), available at

(119.) See Professor Cuellar's and Professor Danner's excellent discussions of the ICC case in this Symposium. Mariano-Florentino Cuellar, The International Criminal Court and the Political Economy of Antitreaty Discourse, 55 SWAN. L. REV. 1597 (2003); Allison Marston Danner, Navigating Law and Politics: The Prosecutor of the International Criminal Court and the Independent Counsel, 55 SWAN. L. REV. 1633 (2003).

(120.) John R. Bolton, Should We Take Global Governance Seriously?, 1 CHI. J. INT'L L. 205, 205 (2000).

(121.) Id. at 206.

(122.) Id. at 211-12.

(123.) Id. at 218.

(124.) Id.

(125.) Id. at 219.

(126.) Id. at 211.

(127.) See KISSINGER, supra note 81, at 809-10.

(128.) Id.

(129.) PRESIDENT OF THE UNITED STATES, supra note 117, at 29, 30.

(130.) During the period of failed diplomacy prior to the commencement of war in Iraq, Time Magazine (European edition) asked its online readers, "Which nation posed the greatest danger to world peace in 20037" Of 318,000 respondents, 7% identified North Korea, 8% Iraq and 84% the United States. Nicholas D. Kristof, U.S. Arrogance Comes Home to Roost, INT'L HERALD TRIB. ONLINE, February 1, 2003, at

(131.) HENKIN, supra note 4, at 314.

(132.) Id. at 318.

(133.) Id. at 337.

Jonathan D. Greenberg, Jonathan D. Greenberg is Director of International Graduate Studies and Lecturer in Law at Stanford Law School. The author wishes to thank Fouad Ajami, Krista Andersen, Richard Banks, John Barton, Barton Bernstein, George Bunn, Richard Falk, Lawrence Friedman, Clifford Geertz, Peter Gratzinger, Arthur Greenberg, Erik Jensen, Valerie Junod, Hector Lehuede, Anna Makanju, Bernadette Meyler, Vi Nguyen, Rogelio Perez Perdomo, Carl Schorske, Helen Stacy, Richard Steinberg, and Sheldon Wolin.
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Title Annotation:Symposium on Treaties, Enforcement, and U.S. Sovereignty; international relations
Author:Greenberg, Jonathan D.
Publication:Stanford Law Review
Date:May 1, 2003
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