International Norms and the Resort to War [1st ed.] 9783030540111, 9783030540128

Citation preview

International Norms and the Resort to War Gregory A. Raymond

International Norms and the Resort to War

Gregory A. Raymond

International Norms and the Resort to War

Gregory A. Raymond Department of Political Science Boise State University Boise, ID, USA

ISBN 978-3-030-54011-1 ISBN 978-3-030-54012-8 (eBook) https://doi.org/10.1007/978-3-030-54012-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For a scholar, raconteur, and friend: Charles W. Kegley Jr.

Preface

Located near a tributary of the Usumacinta River in Chiapas, Mexico are the ruins of the ancient Maya city-state of Bonampak. During its classical period (300–900 CE), Maya civilization consisted of approximately 60 independent city-states scattered across an area of some 100,000 square miles. In addition to being linked by ties of language, religion, and trade, some of these city-states were joined by a network of stone roads, inter-elite marriages, and joint dynastic ceremonies. Yet, despite all of their connections, Maya city-states never united under a single government; instead, they relentlessly struggled with one another for supremacy. Rising majestically from the south end of Bonampak’s central plaza is a terraced acropolis, which contains a small temple with vivid narrative murals adorning the walls of its three interior chambers. The murals in the middle chamber depict events from a ferocious battle, during which King Chan Muwan and his warriors brutally subdue a neighboring state. Although these murals and the carved stone lintel above the chamber entrance graphically portray the mayhem of pre-Columbian combat, it would be wrong to infer that Maya warfare followed no rules. Hieroglyphic and archaeological evidence indicates that the ancient Maya shared a set of common values that framed how they thought about themselves and what they believed was justifiable in their relations with one another. Maya city-states, like those in ancient Sumeria, classical Greece, and Renaissance Italy, conducted their affairs under an ever-present threat of war. Without a higher authority to impose order, force always was an option for achieving foreign policy goals, especially for large, powerful states such as Tikal and Calakmul. When these titans clashed, the results could be catastrophic; therefore, every leader had to be politically vigilant and militarily prepared, acquiring arms and allies to enhance security. Notwithstanding its ferocity, the struggle for mastery over the sprawling Maya realm had limits. As in other multistate systems throughout history, the use of force was tempered by a tacit code of conduct. Commonly acknowledged codes of behavior have existed among all autonomous political entities engaged in sustained interaction. The structure, scope, and substance of the norms and rules comprising these codes have varied over time and across

vii

viii

Preface

cultures. Some were formalized in treaties, others stayed unwritten; some covered multiple issues, others focused on a single topic; some granted wide latitude, while others stifled behavior. No interstate system has existed without norms and rules of one kind or another that enumerated what behavior was appropriate in different situations. Although norms and rules have existed in every state system for which we have diplomatic records, some policymakers and political theorists discount their impact on international security. Realism, one of the leading approaches to the study of world politics, minimizes the importance of norms that constrain national leaders, arguing that foreign policy is driven by strategic imperatives that often require those in power to contravene established moral and legal principles. Even when leaders seem to be following those principles, realists insist that they are motivated by self-interest, not normative obligations. For the most hard-edged realists, who liken world politics to a jungle teeming with threats that can only be held at bay through the unsentimental use of bare-knuckled power politics, customary laws and conventions lack independent normative force. Rather than serving as ex ante sources of principled action, they merely provide grist for post hoc rationalizations of self-serving behavior. In contrast to the skepticism of realists about the role of international norms in world politics, I contend that international norms have explanatory power that is irreducible to optimizing behavior by egoistic actors. I further argue that whereas some norms promote the use of military force, others restrict its use. Moreover, as I will show in this book, the incidence of war tends to rise or fall depending on whether the international normative order is permissive or restrictive. By condoning the unbridled pursuit of national advantage, the norms in permissive orders foster a climate of mistrust, which leads political leaders to adopt unilateralist foreign policies, overestimate the utility of military power for solving diplomatic problems, and exaggerate the susceptibility of their opponents to realpolitik tactics. Alternatively, by curbing untrammeled self-help, restrictive orders encourage cooperative exchanges, which induce moderation and help build mutual confidence. Of course, cooperation can take place without trust, and treachery can occur among those who trust one another; however, the prospects for collective problem-solving increase within an atmosphere of trust since information is readily shared and scarce resources do not have to be expended to assure compliance with promises. Trust permits habits of collaboration to develop and expand—a process of learning that fosters amity and interdependence, therein reducing the odds that interstate disputes will escalate to war. To make the case that permissive orders are more prone to war than restrictive orders, I present my argument in four parts: The first part is conceptual in its thrust; the second, historical; the third, statistical; and the fourth, prognostic. The first three chapters lay the conceptual foundation for arguing that the absence of an awe-inspiring higher authority does not condemn sovereign nation-states to an existence of ruthless competition and endless discord. Chapter 1 spells out my approach to the study of world politics. Chapter 2 defines the concept of “international norm,” examines various types of norms, and presents a theoretical rationale for the thesis that norms influence international interactions on security issues. Chapter 3

Preface

ix

describes the concept of an “international normative order,” explains how securityrelated norms combine with other kinds of norms to form a normative order, and then discusses the difference between permissive and restrictive orders. The next two chapters are historical. They trace the modern evolution of the two bedrock norms that pertain to the commencement of armed hostilities: legitimacy and necessity. Chapter 4 analyzes changes since the Congress of Vienna in what have been considered legitimate justifications for resorting to war. Chapter 5 looks at changes in the degree of normative support for invoking strategic necessity as a defense for disavowing rules on when it is legitimate to commence military action. Chapters 6 through 8 present statistical findings that address the relationship between war-initiation norms and the onset of military conflict. Chapter 6 compares periods of normative permissiveness with periods of normative restrictiveness. Chapter 7 investigates whether these two types of normative order differ in the amount of armed conflict that they experience. Chapter 8 assesses whether warinitiation norms add anything above and beyond what we already know about the systemic conditions that are associated with the ebb and flow of war over the past two centuries. The findings reported in these three chapters reveal significant inverse relationships between the restrictiveness of war-initiation norms and the frequency of major-power and interstate wars—relationships that hold in both contemporaneous and lagged models when controlling for past amounts of war, ongoing strategic rivalries, the distribution of power within the international system, and other confounding factors. The book’s last two chapters offer a prognosis on the resilience of the presentday normative order. Chapter 9 presents several scenarios that sketch how the current restrictive order might be replaced by a more tumultuous permissive order. Chapter 10 ties together the various threads of evidence from the preceding chapters and suggests avenues for future research. My purpose in this book is to provide a better understanding of the overarching cultural conditions that reduce the danger of war. By focusing on legitimacy and necessity, the principal war-initiation norms in international normative orders, I demonstrate how the normative context of world politics affects the incidence of sustained, large-scale military conflict. Since a purely discursive presentation based on my personal impressions would be insufficient for this task, I buttress my arguments with empirical backing whenever possible. Claims about the impact of international norms cannot be accepted on faith. To show the connection between certain types of norms and the onset of war, I rely on data collected by the Transnational Rules Indicators Project (TRIP), a research project initiated by Charles W. Kegley Jr. that has been used in numerous publications on international legal norms. The TRIP dataset offers a systematic way to gauge changes over time in the substance and degree of support for legitimacy and necessity norms and thus serves as the cornerstone in the research design I use to investigate the relationship between normative restrictiveness and the incidence of war. Probing the behavioral consequences of different types of normative order raises timeless questions about right and wrong, justice and expediency, and public and private morality. Because these questions transcend our era, I draw upon historical

x

Preface

examples from various civilizations to illuminate how earlier societies have answered them. Many of the ethical dilemmas we grapple with in world politics today are not unique to our age. Politics among territorial states is a mixture of continuity and change. States have lived under the threat of war since antiquity, but the way armed forces wield violence has changed profoundly. In a time of rapid advances in science and technology, it is easy to accentuate the latest innovations and dismiss the past as irrelevant. Change is riveting. It captures our attention and stimulates our imagination. Still, we must be mindful that some features of world politics are relatively permanent and remain attentive to these continuities. Looking beyond the confines of our immediate time is difficult. It requires an appreciation of how others have dealt with many of the dilemmas we currently face and how yesterday’s ideas and practices influence our thinking today. My hope is that looking at war-initiation norms through a wide-angle lens will help us gain insights from the wisdom and experiences of previous peoples who also wrestled with questions about anarchy and order, power and principle, and peace and war. Boise, ID, USA

Gregory A. Raymond

Acknowledgments

Although this book has taken several years to write, it is the product of almost half a century of studying international norms. Begun in the midst of a protracted struggle with cancer, it was completed while sheltering in place during the coronavirus pandemic. When a book emerges after a long, difficult gestation period, it is natural for the author to reflect on the many debts that he or she has incurred. Foremost among those deserving acknowledgment is Charles W. Kegley Jr., to whom this publication is dedicated. Chuck Kegley introduced me to the quantitative study of international legal norms while I was a doctoral student. Fresh from a stint as a draftee in the US Army, an experience that stirred my interest in the causes of war, I was uncertain at the time over what research direction to follow. Though attracted to the general topics of peace and international security, I wondered how I could make an original contribution to the study of global conflict and its resolution. Kegley, a rising star in the field of international relations who would go on to write or edit over five dozen books on foreign policy and world politics, steered me toward the pathbreaking work being done by J. David Singer and his associates in the Correlates of War project, and encouraged me to investigate how variation over time in the rules of the international normative order might affect the probability of whether serious interstate disputes escalated to deadly violence. In addition, he invited me to participate in the Transnational Rules Indicators Project (TRIP), which he had recently founded in order to gather data on the evolution of the international normative order. His mentoring set the course for my subsequent career. Over the next several decades, the two of us collaborated on a variety of research projects that examined different aspects of the international normative order. We published ten books together, coauthored over three dozen articles, and delivered numerous joint presentations at conferences and seminars throughout Asia, Europe, and the Americas. Equally important, we had fun. Chuck’s personality was even larger than his tall physique, so collaborating with him was always an adventure. His intelligence, thoughtfulness, and sense of humor made him an ideal colleague and a great friend. Although this book is not a Festschrift, I nonetheless intend it to be a

xi

xii

Acknowledgments

tribute that honors his accomplishments in the study of the international normative order. Needless to say, I am also indebted to many other individuals. My interest in world affairs was kindled by growing up in an extended family with grandparents and close relatives who had immigrated to the United States from Slovakia, Hungary, and Poland. Hearing multiple languages spoken at home, enjoying cuisine that differed from standard American fare, and listening to colorful stories regarding life in the “old” country sparked curiosity about the wider world, which my parents urged me to explore through higher education. But without the advice and inspiration of Jerzy Hauptmann, a remarkable member of World War II European intellectual diaspora who taught my introductory undergraduate course on world politics, I never would have considered graduate school to be a realistic possibility, let alone an academic career in international relations. For a first-generation college student from a working-class background, support from someone of his caliber was life-changing. Just as the intellectual roots of this book can be traced to multiple sources, tangible assistance came from many people. I have profited greatly from the help of dedicated professionals working at archives and libraries in Geneva, Oxford, and Washington, DC, where I conducted much of the early documentary and monographic research for this book. Above all, I benefitted from the expertise and efficiency of the talented staff at the Peace Palace Library in The Hague. As I have attested in several previous books, their tireless assistance during my many research trips to The Netherlands has proven invaluable. I would like to thank my editor Anca Pusca, my project coordinator Shreenidhi Natarajan, and the entire publishing team at Palgrave Macmillan. I am equally grateful for the comments on the draft manuscript from several anonymous reviewers, whose suggestions helped me sharpen my arguments. Additionally, I wish to express my appreciation to Alan Brinton. His insights on rhetorical strategies and forms of argumentation enhanced my understanding of appeals to necessity in foreign policy discourse. Howard Hensel and John Vasquez likewise merit recognition for the influence of their scholarship on my grasp of the interminable debates between political realists and their critics over the legitimate use of military force. Heartfelt thanks also go to Constance Lawton and Jim Yoder, who graciously allowed me to use Terra Lodge in Sun Valley, Idaho as a haven where I could work on the manuscript in a beautiful mountainous setting, sheltered from the demands of everyday life. Most of all, I wish to express deep gratitude to my wife Christine for her encouragement and support over the more than fifty years that we have been together. Her kindness and wisdom inspire. She is the love of my life. Boise, ID May 2020

Contents

1

Introduction: Order Without Leviathan . . . . . . . . . . . . . . . . . . . . . . . . . The Problem of Cooperating Under Anarchy . . . . . . . . . . . . . . . . . . . . . . . A Conjecture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Implications for World Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cooperating to Manage the Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . Underlying Assumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conceptualizing International Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 6 7 8 13 18

2

International Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Growing Attentiveness to International Norms . . . . . . . . . . . . . . . . . . The Relevance of International Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defining International Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Behavioral Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deontic Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Measuring International Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Classifying International Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Normative Context and Foreign Policy Choice . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23 24 26 30 31 32 33 35 38 41

3

Norms and Normative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Political Realism and Realpolitik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Controversy Over Realpolitik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Types of International Normative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . Permissive Normative Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictive Normative Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Resort to War in Permissive and Restrictive Normative Orders . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49 50 53 56 59 60 62 66

4

Normative Constraints on the Recourse to War . . . . . . . . . . . . . . . . . . Justifications for Commencing War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defensive Military Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offensive Military Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

69 70 70 72 xiii

xiv

Contents

Charting Trends in War-Initiation Norms . . . . . . . . . . . . . . . . . . . . . . . . . . The Evolution of Norms Regulating the Resort to War . . . . . . . . . . . . . . . Are There Exceptions to Norms Governing War’s Legitimacy? . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74 76 80 84

5

Necessity as a Defense for Breaching the Norms of War . . . . . . . . . . . 89 The Exigencies of Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Necessity and Reason of State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Applications of the Necessity Defense . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Appraisals of the Argument from Necessity . . . . . . . . . . . . . . . . . . . . . . . . 94 Normative Support for Appeals to Necessity . . . . . . . . . . . . . . . . . . . . . . . 95 Index Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Historical Trend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 The Place of Necessity Within the International Normative Order . . . . . 99 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

6

Classifying International Normative Orders . . . . . . . . . . . . . . . . . . . . . When Is the International Climate of Opinion Ripe for War? . . . . . . . . . . Identifying Normatively Permissive and Restrictive Periods . . . . . . . . . . Cluster Stability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cluster Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Correlates of International Normative Orders . . . . . . . . . . . . . . . . . . . International Norms and the Balance of Power . . . . . . . . . . . . . . . . . . . Testing the Importance of Equilibrium and Rivalry . . . . . . . . . . . . . . . Taking Stock of Different Types of Normative Order . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

107 108 108 110 110 113 113 116 118 121

7

Restrictive Normative Orders and the Onset of War . . . . . . . . . . . . . . World Politics and the Law of the Jungle . . . . . . . . . . . . . . . . . . . . . . . . . . Comparing State Behavior in Permissive and Restrictive Orders . . . . . . . Constructing a Composite Indicator of Normative Restrictiveness . . . . . Measuring the Consensus Within the International Normative Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Measuring the Configuration of the International Normative Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggregating Normative Content with Consensus and Configuration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Can Restrictive Norms Supplant the Law of the Jungle? . . . . . . . . . . . . . Research Design Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Data Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contesting Doubts About Normative Restrictiveness . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

125 125 127 130 130 132 132 134 135 136 137 143

Contents

8

xv

The Efficacy of Restrictive Normative Orders . . . . . . . . . . . . . . . . . . . . Systemic Theories of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Measuring Systemic Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preponderance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Volatility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operationalizing Systemic Preponderance and Volatility . . . . . . . . . . The Relative Potency of System Structure and International Norms When Accounting for the Incidence of War . . . . . . . . . . . . . . . . . . The Normative Context of World Politics . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

147 148 150 150 153 154

The Durability of Restrictive Normative Orders . . . . . . . . . . . . . . . . . . War-Initiation Norms in a Changing Global System . . . . . . . . . . . . . . . . . Norm Persistence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Norm Decoupling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Norm Reformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Norm Decay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . System Transformation and International Norms . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

165 165 168 169 171 174 175 179

10 Conclusion: Order Within Anarchy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Normative Environment of War-Prone Systems . . . . . . . . . . . . . . . . . Norms, Power Politics, and the Onset of War . . . . . . . . . . . . . . . . . . . . Caveats and Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cultures of War and Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

183 184 184 186 190 194

9

156 158 161

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

About the Author

Gregory A. Raymond (Ph.D., University of South Carolina; BA, Park College) is University Distinguished Professor Emeritus at Boise State University, where he held the Frank and Bethine Church Chair of Public Affairs, directed the Honors College, and chaired the Department of Political Science. A veteran of the US Army and a former Pew Faculty Fellow in the John F. Kennedy School of Government at Harvard University, Raymond has received Boise State’s outstanding researcher and outstanding teacher awards and was selected as the Idaho Professor of the Year in 1994 by the Carnegie Foundation. His research has been published widely in leading scholarly journals, and he has lectured on foreign policy and world politics at universities and research institutes in over twenty countries. With Charles W. Kegley, his most recent books include Great Powers and World Order: Patterns and Prospects (CQ Press/Sage, 2021), The Global Future, 5th edition (Wadsworth/Cengage, 2014), and After Iraq: The Imperiled American Imperium (Oxford University Press, 2007).

xvii

List of Figures

Fig. 2.1

Fig. 2.2

Degree of attention given to international norms, 1945– 2008 (The trend line shows a five-year moving average in the annual percentage of international-norm bigrams in English-language books published between 1945 and 2008. Bigrams are contiguous sequences within a text of two designated terms, “international” and “norm(s)” in this case. The higher the number of international-norm bigrams as a percentage of all bigrams, the greater the attention given to the concept of international norm. The population of books searched with Ngram Viewer consisted of the over 5.2 million publications digitized by Google Inc. Because the volume of publications varies over time, the data were normalized by the number of books published each year. For a discussion of this methodology, see Michel et al. [2011]) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The empirical focus (There are many ways to classify international legal norms that pertain to war. Among the most common distinctions are between constitutive/regulative, partner-specific/actor-universal, and war-initiation/war-conduct norms. As displayed in the highlighted box, this book focuses on regulative, actor-universal, war-initiation norms) . . . . . . . . . . . . . . . . . . . . . .

24

37

xix

xx

Fig. 3.1

Fig. 3.2

Fig. 4.1

Fig. 5.1

List of Figures

The structure of realpolitik arguments that defend permissive international norms (Fully developed arguments in foreign policy make a claim and support it with reasons. The reasoning used to uphold a claim usually contains the following elements: grounds [facts bearing on the claim], warrants [generalizations connecting the grounds to the claim], backing [information establishing the soundness of these warrants], modalities [an indication of the strength with which warrants link the grounds to a claim], and rebuttals [which specify the conditions that would undermine the argument]. The scheme used here to portray how realpolitik arguments regarding permissive norms are structured is based on Toulmin et al. [1984]) . . . . . . . . The elements of the westphalian normative order (The Westphalian normative order is composed of constitutive norms that define what counts as a sovereign nation-state and regulative norms and auxiliary rules that pertain to the intercourse, jurisdiction, instrumentalities, and responsibilities of sovereign states. War-initiation norms are located in the instrumentalities sector of the order. Their substantive content has changed over time, varying during different historical periods between permissive and restrictive) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Normative support for a restrictive conception of when it is legitimate to resort to war (International norms that communicated to members of the state system when it was legitimate to resort to war became more restrictive over the course of the nineteenth and twentieth centuries. The overall trend was punctuated by several periods of normative permissiveness, with the norms in each of these successive interludes espousing less permissive positions. Note Ten-year moving average with linear trend line) . . . . . . . . . Normative support for a restrictive conception of the necessity defense (Although pleas of strategic necessity received normative support immediately following the Napoleonic Wars and during the years preceding World War I, acceptance of a more restricted conception of the necessity defense increased during the last half of the twentieth century. Note Ten-year moving average with linear trend line) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

52

57

76

98

List of Figures

Fig. 7.1

Fig. 7.2

Fig. 9.1

Trends in the consensus on the content of legitimacy and necessity norms (The degree of consensus on legitimacy and necessity norms is independent of whether their substantive content is permissive or restrictive. The stronger the international consensus on a particular norm, the greater the potential impact that it is likely to have on state behavior. During the first decades of the nineteenth century, agreement on when it was legitimate to resort to war varied more than agreement on when pleas of strategic necessity absolved breaches of the legitimacy norm. During the twentieth century, agreement on the substance of these two war-initiating norms was more uniform) . . . . . . . . . The trend in the restrictive normative order index (Historical periods containing highly restrictive war-initiation norms are those in which the legitimate use of military force is limited, in which pleas of strategic necessity do not excuse violations of these constraints, in which there is a strong consensus on the substance of legitimacy and necessity norms, and in which major powers strive to institutionalize these norms. Although the international normative order has experienced periods of permissiveness as well as periods of restrictiveness over the past two centuries, the general trend has been toward greater restrictiveness regarding when it is appropriate for states to resort to war) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . War-initiation norms in four alternative futures (While the restrictive war-initiation norms of the early twenty-first century may persist, there are several scenarios that would result in them being replaced by permissive norms. If terrorist groups come to be seen as acute threats, for example, national leaders might decouple how they act toward these militant nonstate actors from the way that they behave toward nation-states. Another possibility is that innovations in military technology leading to a new generation of first-strike weapons could result in a sweeping reformation of the normative order, as states gradually adopt security policies based on anticipatory self-defense and preventive war. Finally, a global future populated by a growing number of state and nonstate actors capable of launching incapacitating cyberattacks could lead restrictive war-initiation norms to decay) . . . . . . . . . .

xxi

131

134

168

xxii

Fig. 10.1

List of Figures

The place of international norms in the steps-to-war model (Now and again, discussions of the origins of war touch on the concepts of necessary and sufficient causes. Normative permissiveness is not a necessary cause of war, because some wars have occurred during restrictive periods. Nor is it a sufficient cause by itself, because not all periods of permissiveness have experienced war. Rather than focusing on necessary and sufficient causes, a more useful way to think about normative permissiveness is as one component within a complex, multi-level process that affects the probability of war. This figure suggests how normative permissiveness fits within the steps-to-war model developed by Vasquez [2009] and Senese and Vasquez [2008]) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

186

List of Tables

Table 1.1 Table 1.2 Table 3.1 Table 3.2 Table 6.1 Table 6.2 Table 6.3 Table 6.4 Table 7.1 Table 7.2

Table 7.3

Table 7.4

Table 8.1 Table 8.2 Table 8.3 Table 10.1

A three-person stag hunt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The transformed payoff matrix . . . . . . . . . . . . . . . . . . . . . . . . . . The basic tenets of permissive and restrictive normative orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The permissive-restrictive trade-off . . . . . . . . . . . . . . . . . . . . . . . Cluster analysis results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discriminant function analysis results . . . . . . . . . . . . . . . . . . . . Two conceptions of balance-of-power systems . . . . . . . . . . . . . Logistic regression of balance-of-power influences on the type of normative order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Normative orders and international war . . . . . . . . . . . . . . . . . . . Poisson regression analysis of the influence of normative restrictiveness on major-power war, controlling for potentially confounding factors . . . . . . . . . . . . . . . . . . . . . . . . . . Poisson regression analysis of the influence of normative restrictiveness on interstate war, controlling for potentially confounding factors . . . . . . . . . . . . . . . . . . . . . . . . . . Poisson regression analysis of the influence of normative restrictiveness on extra-state war, controlling for potentially confounding factors . . . . . . . . . . . . . . . . . . . . . . . . . . Factor analysis of system structure variables . . . . . . . . . . . . . . . Hierarchical regression results for major-power war . . . . . . . . . Hierarchical regression results for interstate war . . . . . . . . . . . . A propositional inventory on war-initiation norms . . . . . . . . . .

4 6 58 62 109 112 115 117 129

138

139

140 155 157 158 187

xxiii

Chapter 1

Introduction: Order Without Leviathan

Deep within a vast, primeval forest, three hunters silently track a stag. As they follow fresh hoof prints through stands of birch and alder, each hunter worries about the trustworthiness of the others. Armed with rudimentary weapons, they must collaborate to have a reasonable chance of slaying game large enough to feed them all. If one hunter spots a hare and breaks ranks, he could easily catch it and feed himself, but his defection would deprive everyone else of a meal, for they could not bring down the stag without his help. Yet if he faithfully maintains his post, he risks going hungry because another hunter might abandon the group to pursue the hare. Faced with this dilemma, what should each hunter do? The eighteenth-century Swiss political philosopher Jean-Jacques Rousseau used this allegory to highlight the tension between risky cooperation and individual selfhelp whenever no higher authority exists to enforce commitments.1 Many international relations theorists believe that the strategic choices facing his fictitious stag hunters parallel those confronting national leaders. In Rousseau’s stag hunt, and, by analogy, the modern interstate system, fear, friction, and fighting arise when egoists, concerned primarily about their own survival, interact without a central arbiter. If one actor expects that another may shirk his responsibility, he will defect from their tacit partnership rather than gamble on being helped during a time of need, thus undermining the prospects for mutually beneficial collaboration. For stag hunters as well as for national leaders, what is reasonable to do in certain situations depends on beliefs about what others will do. Although the hunters prefer large quarry because it provides more sustenance than small prey, they face a coordination problem: Can any of them trust the others not to pursue the hare, even when they all promised to work together? It’s best to hunt stag if everyone else does, but if someone in the group is unreliable, the safest choice is to hunt hare and avoid starvation. Given the incentives of self-interested actors to defect when there is no one to enforce commitments, what would cause the hunters to adopt stag-hunting over hare-hunting? Similarly, in an anarchic state system, what would incline national leaders to risk joining forces with potentially unreliable partners rather than engage in defensive noncooperation? © The Author(s) 2021 G. A. Raymond, International Norms and the Resort to War, https://doi.org/10.1007/978-3-030-54012-8_1

1

2

1 Introduction: Order Without Leviathan

The Problem of Cooperating Under Anarchy Harmony, a situation in which self-interested behavior by one actor automatically helps other actors achieve their goals, is rare and fleeting in an anarchic environment. As the allegory of the stag hunt suggests, even if everyone desires the same outcome from their interaction, they often have difficulty achieving it. Mistrust nourishes discord. To realize jointly desired outcomes, everyone must make a conscious, deliberate effort to cooperate. Teamwork does not occur spontaneously. Political negotiation, mutual adjustment, policy coordination—all are required (Keohane 1984, pp. 51–53). Cooperation is difficult when strategic choices depend on beliefs about the anticipated behavior of prospective partners whose intentions are unknown. The temptation to forsake others and fend for oneself can be overwhelming. Indeed, without clear, convincing assurances that everyone will stay the course during a collective venture, apprehension may cascade through a group: One actor’s worries about opportunism among the others triggers their fear that he will defect, prompting them to consider defecting, which ultimately makes it prudent for him to defect (Jervis 1978, p. 168). Anarchy can thus hinder non-altruistic cooperation even when working in unison would leave everyone better off. Without a “common power” to keep everyone in awe, submitted the seventeenth-century English political philosopher Thomas Hobbes (1651), gnawing suspicions and unbridled competition impede collaboration.2 Those living under anarchy, he argued, experience “continual jealousies,” which leads them to adopt “the posture of gladiators,” with “their weapons pointing, and their eyes fixed” on one another. Without a “coercive Power to tye their hands from rapine, and revenge,” these “masterlesse men” suffer “continuall feare, and danger of violent death.” Thus, for Hobbes, anarchy invites strife, making life “nasty, brutish, and short.” Hobbes’ argument raises important questions about the prospects for cooperation under anarchy. Without a supreme authority to regulate their conduct, how might autonomous actors move from self-help to cooperation? Do private appetites and personal brawn define acceptable behavior? Are covenants without the sword meaningful? Is a global Leviathan—an awesome, absolute, and overarching power—the price of controlling the use of military force and ameliorating the horrors of interstate war?

A Conjecture To begin our search for answers to these questions, let’s engage in a brief thought experiment. Imagine that the members of Rousseau’s hunting party belong to a segmentary society.3 This form of political organization was common in precolonial Africa. The Igbo of Nigeria, the Nuer of Sudan, and the Tonga of Zambia are a few examples. Each of these societies was based on the belief that political power should

The Problem of Cooperating Under Anarchy

3

be localized, not concentrated in a central authority. People in such societies understood that they were members of a larger collectivity, but their primary affiliation was with smaller kinship-based segments of that collectivity. Under the principle of exogamy, individuals married outside of their core lineage group, therein forging a complex network of political alliances among the collectivity’s segments (Weiner 2013, p. 58). Sometimes these segments coordinated their activities. For instance, different clans of the Masai of Kenya and Tanzania participated in a common socialization process, and the Teke of Zaire collaborated during certain religious festivals. Notwithstanding these occasional joint activities, local autonomy was maintained, and independence remained a principal value. Kinship-based segments, the elemental units of these societies, frequently competed with one another, not unlike nation-states, the constituent units of the modern international system. Disputes between competing segments could escalate to war, but most were held in check by socially-agreed-upon rules of behavior. Some rules outlined procedures through which a third party could diffuse contentious situations; others reduced the severity of altercations by prohibiting certain methods of retaliation; and still others helped restore peace by delineating how malefactors could atone for their transgressions. The content of these customary rules varied from one society to another (Middleton and Tait 1958; Bohannan 1957; Fortes 1949; Evans-Prichard 1940). Rules followed by the Anuak of the Sudan, for example, differed from those of the Tallensi of Ghana, even though they both possessed horizontal, decentralized political systems. Segmentary societies that are structurally alike do not necessarily have identical political cultures. Suppose that Rousseau’s hunting party contains members from different kinshipbased units in a segmentary society whose political culture prizes what the ancient Greeks called kerdea—initiative, resourcefulness, and guile.4 Within this permissive normative order, self-preservation is the paramount value and an ability to advance one’s security interests through wit and wile are respected. As reflected in the Bedouin proverb “Me and my brother against my cousin; my cousin and me against the stranger,” loyalty hinges on the immediacy of kinship bonds. Familial and clan interests take precedence over the welfare of people from other segments of the society, and kinfolk have the latitude to do whatever they believe must be done to protect these interests, including reneging on agreements, resorting to force, and intervening into the affairs of other segments.5 Now further suppose that each hunter originally set out alone and later happened on the others while trekking through the forest. Their meeting was coincidental and, hailing from different kinship units, was unlikely to happen again. But on this singular occasion, they realized working together offered the possibility of bagging big game rather than smaller quarry. To investigate how the members of our imaginary hunting party might act in this situation, let us examine the strategies that they can choose and the outcomes that would result from the combination of their choices. Game theory, a branch of applied mathematics, provides a set of formal tools for modeling strategic interaction. When used for heuristic purposes, it can yield insights into the conduct of interdependent actors facing trust dilemmas—situations like Rousseau’s stag hunt where recognition

4

1 Introduction: Order Without Leviathan

Table 1.1 A three-person stag hunt Hunter C Cooperate (Hunt Stag) Hunter B

Defect (Chase Hare) Hunter B

Cooperate (Hunt Stag)

Defect (Chase Hare)

Cooperate (Hunt Stag)

Defect (Chase Hare)

Cooperate (Hunt Stag)

1, 1, 1

4, 2, 4

4, 4, 2

4, 3, 3

Defect (Chase Hare)

2, 4, 4

3, 3, 4

3, 4, 3

3, 3, 3

Hunter A

Note The first number in each cell of the matrix is A’s payoff; the second number is B’s payoff, and the third is C’s payoff. The number “1” refers to the most preferred outcome, whereas “4” refers to the least preferred outcome

of the potential benefits of trusting is offset by a realization that counting on others exposes oneself to the possibility of betrayal. Because Rousseau omitted some details in his description of the hunt, game theorists have modeled it in different ways. Let’s conceptualize the hunt as a symmetric three-person game where the spoils from cooperating are divided equally, each hunter chooses to cooperate or defect without knowing what the others are about to do, and a single defection ruins the hunt. Table 1.1 depicts the strategic structure of the decision problem facing our threeperson hunting party. Recall that the hunters belong to different clans within a segmentary society that possesses a permissive normative order. Let us also assume that the hunters are purposeful actors whose preferences among all of the possible outcomes from their interaction can be rank-ordered from the best to the worst as follows: (1) capture the stag jointly and share the meat, which would sustain them for a considerable period of time; (2) capture the hare alone and immediately consume all of the meat; (3) capture the hare with one or more fellow hunters and share the meat, which would hardly satisfy their appetites; and (4) capture neither animal and go hungry. For our purposes, we need only assume that it is possible to judge which outcomes are better than others, not how much better one is than the others. With this ordinal ranking in mind, each hunter chooses the strategy that he believes will yield the most desirable outcome, given what the others are expected to do. Hunters A, B, and C can choose either cooperation or defection. The outcomes shown in the cell entries of the payoff matrix in Table 1.1 derive from the intersection of their independent choices. Capturing the stag, everyone’s preferred outcome requires all three hunters to cooperate. But because they live in a political culture that reveres guile and opportunism, none of them are certain about the intentions of the others, which instigates hare chasing as a hedge against being left in the lurch. Seeking to avoid the worst outcome, each hunter attempts to maximize his minimum gain by defecting. No one can shift unilaterally to cooperation and better his position unless all of the others shift as well. Thus, the outcome of their choices is the

The Problem of Cooperating Under Anarchy

5

risk-dominant equilibrium represented in the shaded lower-right cell of the payoff matrix (3, 3, 3). What would the hunters do in a different cultural environment? Let’s continue our thought experiment by imagining that they live in a segmentary society whose norms stem from what the ancient Romans called fides—truth and reliability in word and deed.6 Upholding promises and disavowing sharp practices—whether with kin or members of other clans—underpin this creed. Duplicity is abhorred; perfidy, scorned. Society belittles anyone behaving dishonorably, which brings shame on the offender and on his or her clan. In contrast to the leeway for disingenuous behavior offered by a permissive normative order, the rules of this more restrictive order proscribe raw opportunism, despite the advantages it might seem to yield.7 What impact would such a normative order have on the hunters? Would changing the collective consciousness of a segmentary society—the values and principles shared by its members—significantly alter individual preferences and, in turn, collective behavior? Unlike in our previous version of the hunt, two motivations would reduce the likelihood that anyone would abscond from pursuing the stag, even though the huntsmen belong to different clans. On the one hand, the hunters would be pushed away from defection by the disgrace they would face in the eyes of others. On the other hand, they would be pulled toward cooperation because steadfastness is part of their identity, and their identity shapes how they perceive their interests. They stick together even when a hare dashes by because fidelity defines who they are. The push and pull of these powerful motives shift the rank-order of the hunters preferences, which now become: (1) capture the stag jointly and share the meat; (2) capture neither animal but be held in high esteem by society for behaving honorably; (3) capture the hare with one or more fellow hunters but be chastened for acting ignobly; and (4) capture the hare alone and suffer disgrace and the pain of ostracism for forsaking the other hunters.8 Although the members of the hunting party live in different clans, they grasp their wider social obligations and understand the repercussions of failing to meet expectations about honorable behavior. Table 1.2 shows the subjective payoff matrix for the hunters based on their revised preferences. Depending upon what the others do, each hunter would receive either his first or second preferred outcome by choosing a cooperative strategy; alternatively, each would receive his third or fourth preferred outcome by defecting. Under these circumstances, where norms of allegiance buttress group cohesion and the rewards from cooperating trump the costs of defection, the outcome of the hunters’ choices is the payoff-dominant equilibrium represented in the shaded upper-left cell of the payoff matrix (1, 1, 1). Game theory simplifies cases of strategic interaction by explicating the features of contingent behavior. It provides a technique for probing the plausibility of conjectures about how self-regarding agents will act in various circumstances, including when they are most likely to cooperate in the absence of a Leviathan. My purpose for using the vocabulary and formal structure of elementary game theory to compare two variations on Rousseau’s allegory of the stag hunt has been to introduce the central theme of this book: The type of normative order matters, and it matters in

6

1 Introduction: Order Without Leviathan

Table 1.2 The transformed payoff matrix Hunter C Cooperate (Hunt Stag) Hunter B

Defect (Chase Hare) Hunter B

Cooperate (Hunt Stag)

Defect (Chase Hare)

Cooperate (Hunt Stag)

Defect (Chase Hare)

Cooperate (Hunt Stag)

1, 1, 1

2, 4, 2

2, 2, 4

2, 3, 3

Defect (Chase Hare)

4, 2, 2

3, 3, 2

3, 2, 3

3, 3, 3

Hunter A

Note The first number in each cell of the matrix is A’s payoff; the second number is B’s payoff, and the third is C’s payoff. The number “1” refers to the most preferred outcome, whereas “4” refers to the least preferred outcome

a predictable way. The core values and codes of conduct that form different types of normative order affect preference rankings, individual choices, and aggregate outcomes.9 In the chapters that follow, I provide empirical evidence demonstrating that the type of normative order—permissive versus restrictive—has an effect on whether disputes among nation-states in an anarchic environment escalate to war. International normative orders rooted in the values accentuated by kerdea are more war-prone than those ingrained with an ethos of fides.

Implications for World Politics What does strategic behavior by members of different clans within segmentary societies suggest about interactions among nation-states? What insights about world politics can we glean from Rousseau’s allegory of the stag hunt? Do certain types of normative order contribute to the outbreak of armed conflict by permitting decision makers to use force whenever they believe it is expedient? Conversely, do other types of normative order promote peace by restricting the use of force? Let’s consider these questions sequentially. The reasons for drawing an analogy between the interaction of individuals from different clans within a segmentary lineage society and the interaction of the political leaders of nation-states may not be immediately apparent. Indeed, some might deny that we can learn anything from such juxtapositions, insisting that the problem of promoting order in the international domain is a problem sui generis (Suganami 1989, pp. 10–22). However, others aver that the conditions sustaining order within societies are similar to those that promote order between them (Fry 2007, p. 224). For instance, Michael Barkun (1968, p. 32), a pioneer in the study of ideational phenomena in world politics, sees striking commonalities between segmentary societies and the

The Problem of Cooperating Under Anarchy

7

interstate system, even though the latter possesses far more cultural pluralism than the former. Both contain autonomous political units that acknowledge unwritten rules of comportment, custom is the main source of these rules, rituals and ceremonial activities reinforce them, and violations are redressed through self-help. Given these commonalities, it is not surprising that various theorists have mined the experience of segmentary societies for insights into international normative orders (see Campbell 1988; Dinstein 1986; Masters 1964; Modelski 1961). Stag hunt models have also been used to study international normative orders. As one legal scholar has commented, stag hunt and other assurance games can yield important insights into law by highlighting the cultural context of strategic choices (McAdams 2008, pp. 4–5, 26, 55). Because stag hunt games contain multiple equilibria,10 payoffs alone do not govern their outcomes. Rather than simply following a logic of consequences, where the anticipatory costs and benefits of alternative actions are weighed to ascertain what will maximize one’s interests, decision makers in these types of games respect a logic of appropriateness, where behavior is guided by norms that define acceptable conduct in particular situations given one’s identity. Researchers have found that individuals facing the same payoffs but operating in different cultural contexts do not play stag hunt games the same way.11 By defining what behavior is appropriate for someone with a certain identity under certain circumstances, the prevailing normative order affects the choice among multiple equilibria. It molds actor preferences, influences expectations, and has an effect on how individuals interpret the behavior of others. I have compared hypothetical stag hunts under permissive and restrictive normative orders in segmentary societies to suggest how the cultural contexts within which agents act shape their behavior. If, as I have argued, prevailing norms affect how they conduct themselves, do certain types of international normative orders enhance the prospects for cooperation under anarchy? Do they make it more likely that limits on military force will be agreed upon? And do these limits inhibit armed conflict? The primary aims of this book are to describe how permissive versus restrictive international orders regard the use of force, and to ascertain whether the disparate war-initiation norms they contain affect the incidence and seriousness of armed conflict.

Cooperating to Manage the Use of Force Political realism, one of the principal approaches to the study of international relations since World War II, downplays the importance of normative restraints on the resort to military force.12 Depicting world politics as an arena where states perpetually jockey for relative gains, realists scoff at the idea that highly restrictive legal norms curtail warfare. For them, international law is like professional wrestling: It pretends to be authentic but depends on theatrics and a willing suspension of disbelief by spectators. Without a central enforcement mechanism, the international legal order is voluntarist, relying on consent and self-restraint. National leaders may abide by

8

1 Introduction: Order Without Leviathan

rules of the game that lubricate the mechanisms of balance-of-power politics, but they are unlikely to follow rules that severely limit their moves on the geostrategic chessboard. While most states may observe most legal rules most of the time (Henkin 1979), realists emphasize “that when some states violate some rules some of the time, those states are likely to be among the most powerful states, and the rules are likely to be extraordinarily significant rules” (Glennon 2003, p. 49; see also Goldsmith and Posner 2005, p. 13). Leaders, realists advise, should always act in terms of national self-interest. “A statesman who has any other motive,” proclaimed one hardnosed exponent of realism, “would deserve to be hung” (Johannes Haller as cited in Niebuhr 1960, p. 84). In contrast to political realists who doubt that restrictive legal norms curb the remorseless tides of power politics, I argue that they can limit military force, even without muscular institutions to enforce their injunctions. To support my argument, I draw on the findings from time-series analyses of militarized disputes, interstate wars, and international norms covering the period from the end of the Napoleonic Wars to the onset of the twenty-first century. The evidence shows that restrictive warinitiation norms have a statistically significant inverse association with the incidence of interstate war, even after controlling for other relevant factors. In other words, the greater the restrictiveness of the normative environment, the lower the probability that disagreements among states will grow into armed hostilities. Rather than a patchwork of meaningless admonitions, international norms regarding the use of force are “powerful ordering principles with very practical implications” (Simon and Martini 2004–2005, p. 132). World politics in the aggregate are more pacific during periods governed by restrictive war-initiation norms.

Underlying Assumptions Several assumptions underlie my argument that order without a Leviathan is possible, most of which were implicit in the preceding discussion of the stag hunt game. The first assumption is that nation-states are the primary international actors. Following the Peace of Westphalia, which ended the Thirty Years’ War in 1648, sovereign, territorial states became the preeminent performers on the world stage. Although receiving top billing for more than three centuries, they have never been the sole players in the drama of world politics. At various times, they have shared the stage with intergovernmental institutions, multinational corporations, nongovernmental organizations, transnational religious movements, and a host of other nonstate actors that operate across national frontiers. The growth in the number of these actors and in the volume of their activities over the past few decades is eroding the Westphalian conception of world politics (Kegley and Raymond 2002); however, the era of state dominance is not over. The nation-states commonly referred to as “major powers” retain a near-monopoly on the use of coercive force in the world, and their foreign policies affect global affairs more than the behavior of other actors.13 While it would

Cooperating to Manage the Use of Force

9

be inappropriate to dismiss the increasing influence of nonstate actors, it would be premature to abandon the focus in the nation-state as the foremost international actor. Regularly interacting political entities with sufficient interdependence to make the behavior of each influential on the others comprise a system. Interstate systems can be configured in different ways. My second assumption is that the configuration of the modern interstate system is anarchic. Nation-states are sovereign: They have supreme power over their territory and populace, and no one stands above them wielding the authority and coercive capability required to undertake the extractive, regulative, and distributive functions that governments normally perform in domestic political systems. The leaders of nation-states possess the exclusive right to make, interpret, and enforce laws within their jurisdiction. They also have the freedom to negotiate commercial treaties, form military alliances, and enter into other types of agreements without external supervision. Autonomy comes with a price, however. When push comes to shove, states are on their own. The anarchic configuration of the interstate system, as social constructivists point out, is what states make of it (Wendt 1992). A configuration composed of friends is fundamentally different than one containing bitter adversaries. British nuclear weapons, for example, are far less menacing to the United States than the same weapons in North Korean hands because shared Anglo-American understandings about one another differ markedly from how Washington and Pyongyang understand each other. Given that the modern state system that arose in the aftermath of the Peace of Westphalia has not been an anarchy of friends, its structure has led even well-intentioned national leaders to embrace self-help. Without a higher authority to turn to whenever disputes arise, retaliatory force operates as the court of last resort.14 Heads of government serve as the final judges of whether a wrong has been committed against their countries, and they shoulder the ultimate responsibility for punishing the perpetrator of any perceived transgression. Uncertain of the intentions of others and worried about their state’s vulnerabilities, those who rule nation-states support policies that augment their country’s military strength knowing that they must fend for themselves. Even though face-to-face diplomacy can help leaders better understand one another (Holmes 2018), they hesitate to let down their guard, since changing circumstances could make anyone a potential foe. My third assumption is that human decision makers acting alone or within groups, not anthropomorphized states, make foreign policy choices. Although it is common for journalists to report “Slovakia opted to do X” or for scholars to write “Hungary responded to Slovakia by doing Y,” these literary conveniences risk reifying states, imbuing them with human characteristics and treating them like monolithic unitary actors. Nation-states are not sentient beings. They neither heed nor flout international norms; individuals acting on behalf of states respect or spurn them. When rules of normatively appropriate behavior affect world politics they do so by affecting people—the national political leaders who act in the name of their countries, the close circle of advisers and staff who counsel and assist them, and the larger constellation of legislators, bureaucrats, pundits, activists, moguls, citizens, and others who attempt to influence their decisions. The extent, composition, and sway of participants in the decision-making process vary by regime-type and issue-area, but even under the

10

1 Introduction: Order Without Leviathan

most circumscribed conditions, where insular autocratic regimes face issues of vital interest, foreign policy undertakings emanate from the politics of human agency, not from the cool, calibrated calculations of an opaque, single-minded state. The fourth assumption is that security is the chief foreign policy goal of national political leaders. According to what might be called the chain-of-circumstances interpretation of world affairs,15 foreign policy behavior is the product of “random, haphazard, or even irrational forces,” owing more to drift and happenstance than forethought and design (Seabury 1963, p. 5). No doubt, some foreign policy undertakings are triggered by strange, unforeseen events, others stem from tentative, incremental decisions, and most unfold in a complex, dynamic environment where information may be missing, ambiguous, or unreliable; however, this does not mean that foreign policy is aimless. Even when muddling through ill-defined problems, political leaders strive to achieve specific ends. Their behavior may be improvised, or even imprudent, but it is purposeful. Regardless of whether the goals they seek are stipulated by a single predominant individual, established by a consensus among several authoritative officials, or produced by hard bargaining between bureaucratic agencies, preserving the independence and territorial integrity of the homeland top the foreign policy agenda. To be sure, these are seldom the sole concerns of national leaders. They have other objectives as well, ranging from improving their country’s economic well-being, through raising its prestige and promoting its values abroad, to staying in office; nevertheless, national survival is their primary goal. For without it, perusing other aspirations is futile. My fifth assumption is that national political leaders are embedded within social networks that transmit collective expectations about appropriate behavior. Human beings are social animals. They have an instinctual desire for attachment and possess innate talents for imagining the feelings of others, reading their intentions, and detecting cheating—aptitudes that are indispensable for engaging in social exchange, especially when delayed reciprocity is involved (Cosmides and Tooby 1992, 2005; Herrmann et al. 2007; Cosmides 1989). Although humans vary in the degree of their sociability, they are predisposed to join groups and show favoritism toward those to which they belong. Seeking what has been called “shared distinctiveness,” they attempt to be like members of their ingroup, while simultaneously differentiating themselves from outgroups (Leonardelli, Pickett, and Brewer 2010). According to biologist Edward O. Wilson (2012, p. 57), forming groups and defending them against outsiders “are among the absolute universals of human nature.” Group memberships, ranging from families and clans through ethnic nations and religious communities, shape an individual’s sense of self in relation to others. Most people possess multiple identities whose relative importance is situational (Huntington 2004, p. 24). Whereas someone may define herself in terms of membership in a trade union in certain circumstances, she may emphasize an affiliation with an athletic team in others. The importance of these social categorizations can be seen in the feelings of pride and self-esteem that people have in them, as well as in the non-instrumental, expressively motivated behavior they exhibit to demonstrate who they are and what values they embody (Schuessler 2000). Anyone who has witnessed a football match in Buenos Aires between the Boca Juniors and River

Cooperating to Manage the Use of Force

11

Plate surely would grasp the raw power of situational identity. Brain imaging studies have found that intergroup competition increases the salience of these identities, which affect how people respond to others. The combination of success experienced by one’s own group and failure by a competitor activates the ventral striatum, which is associated with aggressive impulses toward rivals (Cikara et al. 2011). Rather than living as solitary, atomized creatures, human beings belong to complex social networks that convey expectations about what behavior is considered appropriate within a particular culture for someone with a specific identity. The identity of a national political leader and the conception held about his or her country—the set of attributes and ideals that allegedly distinguish it in politically relevant ways—form the basis for vetting alternative courses of state action in world politics (Banerjee 2015; March and Olsen 2008, p. 690; Hymans 2006, pp. 18–21). According to this logic of appropriateness, leaders facing critical national security decisions vet policy options by asking several key questions: What kind of situation is this? What type of person am I? What does a person such as I, who leads a country like mine, do in this kind of situation? Foreign policy options that violate a leader’s sense of self and conception of national identity are not viable choices. They are interpreted as unbecoming for “people like us” (Monroe 1995, p. 18). Finally, my last assumption is that national political leaders are emotional decision makers. Rationality is the linchpin in many theories of world politics. It offers an intelligible, parsimonious way to account for human behavior. As depicted in conventional rational-agent theory, decision makers (1) carefully define the elements of a foreign policy problem that must be dealt with, (2) prioritize the objectives they will pursue when confronting it, (3) evaluate the probable costs and benefits associated with all viable courses of action, and (4) make choices that are expected to maximize net benefits given their assessment of the consequences of each option. Describing the decision-making process in this way suffers from several problems. To begin with, even though people experience their own behavior as volitional, a fair amount of higher mental functioning occurs without conscious choice (Wegner 2003; Bargh and Ferguson 2000). Subtle unconscious processes appear to influence the selection of one alternative over another (Libet 2004; Nisbett and Wilson 1977; but also see Mele 2014). Neuroscientists have discovered that brain activity as measured by an electroencephalogram precedes any awareness of the intention to undertake voluntary action, implying that at least some of our decisions are initiated without overt calculation. Human reasoning, in other words, seems to involve two complex, interconnected processes: One is unconscious, immediate, and affective; the other is conscious, reflective, and deliberate. Both processes are involved in judgment (Koenigs et al. 2007), but some evidence suggests that the conscious/deliberative process may be preceded and guided by intuitive feelings that lie below the surface of awareness (Evans and Stanovich 2013; Evans 2008; Bechara et al. 1997). As Haidt (2001, p. 819) has summarized the arguments for this proposition: The intuitive/affective process “came first in phylogeny, it emerges first in ontogeny, it is triggered more quickly in real-time judgments, and it is more powerful and irrevocable when the two systems yield conflicting judgments.”

12

1 Introduction: Order Without Leviathan

Another difficulty concerns the computational ability of human decision makers. Because national leaders work in an environment of uncertainty, incomplete information, and short deadlines, their evaluation of policy options is seldom exhaustive. Instead of examining all of the possible options that might pass muster and selecting the one with the best chance of success, they examine options sequentially and end their evaluation as soon as an alternative appears that seems workable. Furthermore, they rely on cognitive shortcuts to make decisions quickly when faced with insufficient information and looming deadlines. Most people are attentive to things that confirm their preconceived beliefs, they are prone to rely on readily available data, they give disproportionate weight to the first information they receive, they are sensitive to the way options are framed, and they tend to care more about losses than gains (Kahneman 2011). Thus, rather than being comprehensively rational, human beings are what Herbert Simon (1957) called “boundedly rational.” They choose ostensibly better alternatives over worse ones but possessing selective perception and a limited ability to process complex information reduces their capacity to identify and thoroughly assess the range of possible alternatives. Still another problem with conceptualizing national political leaders as comprehensively rational agents is a tendency to ignore the contribution of emotions to judgment and choice. Rather than judiciously pursuing their self-interests, people often act out of spite and other self-destructive emotions. The Russian novelist Fyodor Dostoevsky’s fulminations against the Enlightenment conception of human nature illustrate this critique of rationality. To quote his Underground Man, despite “fully understanding their real interests,” people frequently “have left them in the background and have rushed headlong on another path” (Dostoevsky 1965, p. 67). Troubled by such behavior, many political theorists dismiss human passion as a “fever of the mind” (Penn 2012, p. 59), an impediment to sharp, sober thinking. Yet, “to have a complete theory of rationality,” warns Simon (1983, p. 59), “we have to understand the role emotion plays in it.” Unfortunately, that role has been belittled ever since Socrates admonished his friend Crito to follow reason. Generations of writers have portrayed emotions as “animal spirits” and have promoted reason as the master of these powerful, restless feelings. 16 In the Phaedrus, for example, reason is a charioteer holding the reins of steeds that represent the fervid, unruly side of humans. Only through the discipline of reason, explained the Roman Stoic philosopher Seneca (1985, p. 125), could the inner beasts of men and women be tamed. Emotions, according to this age-old argument, father bad decisions by distorting our view of the world, allegedly causing reckless, impulsive behavior. As Kasper Gutman, the affable but conniving villain in John Huston’s classic film noir The Maltese Falcon, tells private detective Sam Spade: During “the heat of action, men are likely to forget where their best interests lie, and let their emotions carry them away.” However, fixating on cases where passions cause poor choices obscures two key facets of the mind’s architecture: (1) cognitive processing does not occur independently of emotional processing; and (2) the latter is as vital for reaching sound, rational judgments as the former (McDermott 2004, p. 693). A growing body of biological evidence suggests that emotions are integral to decision making, influencing both the content and process of human thought—what

Cooperating to Manage the Use of Force

13

and how people think. The notion of a dispassionate decision maker is “a biological impossibility,” argues psychologist Lisa Feldman Barrett (2017, pp. 238, 245). “No decision can ever be free of affect.” What we see, hear, or discern through other senses are always colored by our feelings. Emotions endow life with meaning, alerting us to what is important and where we should focus our attention (Peters 2006, p. 463). In addition to performing prioritization and agenda-setting functions, they affect the ability to recall memories, the selection of historical analogies, and the assessment of risk (Dolcos and Cabeza 2002; Loewenstein et al. 2001; Cahill 2000). At the level of neuroanatomy, cognition and emotion are so intertwined that it is unrealistic to draw a clear distinction between the two processes (Phelps 2006). People who have suffered damage to the ventromedial prefrontal cortex, an area of the brain involved in processing emotional information, struggle to make decisions (Damasio 1994). They possess intransitive preferences, display insensitivity to probabilities, and have trouble envisioning the long-term consequences of their behavior (Fellows and Farah 2007; Bechara et al. 1994; Greene et al. 2001). Without emotional cues, they ruminate endlessly about the advantages and drawbacks of different courses of action, which prevents them from reaching closure. Emotional processing, to put it succinctly, provides cognitive guidance and spurs adaptive behavior. Rather than undermining reason, it is a part of bounded rationality itself (Hanoch 2002; Muramatsu and Hanoch 2005, pp. 212–215). In summary, throughout this book I assume that nation-states are the principal units in the anarchical system of modern world politics. Their behavior stems from the decisions of political leaders that act in their name. Survival crowns the foreign policy agendas of those leaders, who, when given a choice among two or more courses of action leading to different payoffs, tend to choose the alternative that they think is in the best security interest, within the confines of their knowledge, affective understanding of the situation, and what they believe is appropriate given their national identity conception.

Conceptualizing International Norms In recent years, two schools of thought have attracted followers within the social sciences. One school explains human behavior in terms of rational choice: Agents have preferences and, when choosing between alternative courses of action, their calculations are driven by a desire to maximize expected utility. The other school downplays rational choice: Agents are prodded more by the affective force of extant norms than enticed by anticipated benefits. Despite commentators often characterizing these two accounts of purposeful action as antithetical, various scholars maintain that individual interests and group norms compose “a parallelogram of forces that jointly determine behavior” (Elster 1989, p. 106). As suggested in our earlier thought experiment about stag hunting in different hypothetical cultures, I start from the premise that both motivations influence human

14

1 Introduction: Order Without Leviathan

behavior. Yet, while considerable empirical work has been done in the field of international relations on interests, norms have been largely overlooked, especially when it comes to questions of war and peace. Owing to the dearth of data-based studies on the impact of different types of norms on the onset of war, this book focuses on whether permissive versus restrictive rules of the game have a bearing on the incidence and seriousness of armed conflict. So far, I have argued that the cultural context of human choice influences behavior through norms that articulate a logic of appropriateness. To determine how well this conjecture applies to world politics, we need to take a closer look at the structure and function of international normative orders. According to the French philosopher François Ewald (1991, p. 140), the word norm led a “quiet, unremarkable existence” throughout most of its history. Toward the end of the twentieth century, however, it became “one of the most used and abused terms” in the vocabulary of social scientists. Today scholars continue to disagree over how norms should be conceptualized, whether they can be measured, and which classification schemes might be fruitful for differentiating among different types of norms. Given the dogged wrangling over the term, an important preliminary to examining the impact of permissive versus restrictive normative orders in world politics is to define how I use concept of international norm throughout this book. Chapter 2 evaluates the various meanings attributed to the term, stipulates how it will be defined in this study, and describes the measurement strategy that underpins the research findings reported in subsequent chapters. Notes 1.

2.

3.

Although Rousseau presents the allegory of the stag hunt in Discours sur l’origine et les fondemens de l’inégalité (1755), his insights on politics among nations are scattered throughout many books and essays. Hoffmann and Fidler (1991) have compiled his most important commentaries. Key works examining Rousseau’s interpretation of international politics include Roosevelt (2006), Hassner (1997), Fidler (1996), Carter (1987), and Hoffmann (1963). Skyrms (2004) shows how Rousseau’s ideas have influenced modern gametheoretic analyses of cooperation and collective action. O’Neill (2001, pp. 72– 77) exemplifies how some scholars have applied stag hunt games to interstate relations. According to Hobbes, in order to guarantee civil order the “common power” (or supreme authority) must be as awesome as Leviathan, the beast described in Job 41: 25–26 as so terrifying that “When he raises himself up the mighty are afraid.” Some scholars have drawn parallels between Hobbes and Xunzi (Hsün-tzu), a Confucian philosopher from the late Warring States period in Chinese history. Decrying humanity’s “wayward” nature, Xunzi believed that rituals and rites imposed from above would curb human desires and help avert social strife (Knoblock 1988–1994). The nineteenth-century French sociologist Emile Durkheim (2014) originally employed the concept société segmentaire. After its adoption by Fortes and

Cooperating to Manage the Use of Force

4.

5.

6.

15

Evans-Pritchard (1940), segmentary lineage theory appeared in numerous ethnographic studies of African and Middle Eastern pastoral societies. For discussions of the controversies surrounding the concept, see Gellner (1995), Combs-Schilling (1985), Kuper (1982), and Holý (1979). The term kerdea is used in Homer’s Odyssey to refer to the artful conduct of Odysseus, Penelope, and Telemachus. Portrayed as an asset, it connotes cunning or shrewd action taken for one’s own profit or advantage (Roisman 1987, p. 66; 1994, pp. 10, 13). The playwright Sophocles (1957, p. 164) captured the essence of kerdea in his Philoctetes, when Odysseus offered the following advice to Neoptolemus, the son of Achilles: If “one stands to gain, scruples are out of place.” Themistocles, the architect of Athens’ naval victory over the Persians at Salamis in 480 BCE, best exemplified this credo. The term apate was used by some ancient Greek writers to refer to stratagems that relied upon fraud and deceit, especially in times of war. The ancient Hindu writer Sukr¯ach¯arya expressed similar ideas about guile and deception in the N¯ıtis¯ara (Sastry 1966, p. 570; Chacko 1958, p. 132). Diamond (2012, pp. 137, 291) cites the Sawi of New Guinea and the Y˛anomamö of Brazil and Venezuela as cases of decentralized tribal societies with norms that allowed preemptive defection from cooperative endeavors. A missionary who lived among the Sawi reported that they venerated treachery (Richardson 2005). For example, one Sawi clan would occasionally feign camaraderie with a neighboring clan to encourage them to lower their guard, which facilitated betraying them later on. Chagon (2013) described similar behavior among the Y˛anomamö. The concept of fides was deeply embedded in the image that early Romans had of themselves. It appeared prominently in their religion, literature, and law. For example, the goddess who personified good faith had a temple on the Capitoline Hill where treaties with foreign governments were stored. The playwright Plautus used the character of Philocrates in The Captives to underscore the importance of loyalty, and the poet Catullus used Ariadne in The Wedding of Peleus and Thetis to deplore false promises. As stipulated by the Law of the Twelve Tables (449 BCE), traitors and perjurers were hurled from the Tarpeian Rock in retribution for their ignominious behavior. The Roman consul Marcus Atilius Regulus was often depicted as a moral exemplar of fides. While campaigning in North Africa during the First Punic War, Regulus was captured during the Battle of Tunis (255 BCE). According to legend, the Carthaginians declared that they would allow him to travel to Rome on parole under two conditions: (1) while in Rome, he ask the Senate to free a group of Carthaginian noblemen being held as prisoners of war; and (2) if the Senate refused, he would return to Carthage to be incarcerated once again. Regulus agreed. Upon returning to Rome, he told the Senate not to release the prisoners. But true to his word, he sailed back to Carthage, where allegedly he was put to death. Similar behavior is attributed to French king Jean le Bon after his capture by the English during the Battle of Poitiers in 1356.

16

7.

1 Introduction: Order Without Leviathan

Examples of decentralized tribal societies with political cultures that emphasize dependability and rectitude include the Birhor of India and the Batek of Malaysia. Both societies loathe interpersonal violence, recognize a moral obligation to share with one another, and use ostracism to promote compliance with their informal codes of conduct (Kujur and Topno 1999; Endicott 1988; Bhattacharyya 1953). For discussions of other traditional societies with similar social norms, see Fry (2006) and Kemp and Fry (2004). 8. Research using functional magnetic resonance imaging (fMRI) indicates “social and physical pain share a common neuroanatomical basis” (Eisenberger, Lieberman, and Williams 2003, p. 291). The experience of social exclusion triggers activity in the dorsal anterior cingulate cortex and right ventral prefrontal cortex, regions of the brain associated with the sensation of physical discomfort (also see Canaipa et al. 2016). For discussions of how the social emotion of shame differs from guilt, and the behavioral consequences caused by feelings of shame, see Smith et al. (2002), Tangney and Dearing (2002), Velleman (2001), Williams (1993), and Taylor (1987). 9. Although it might be argued that the same results would occur under iterative play, I contend that the cultural context in which people operate offers a more robust explanation of cooperative behavior than the shadow of the future. Not only do norms affect one-shot encounters such as in the version of the stag hunt used here, they also have a significant impact in sequential interactions, notwithstanding the expectation that the parties in question will deal with one another again. As epitomized in the well-known Peanuts cartoon of Lucy pulling the football away from Charlie Brown whenever he attempts a kick, time and again opportunists renege on promises while their victims continually believe that “this time will be different.” 10. For an outcome to be a Nash equilibrium in games with simultaneous independent moves, the combination of strategies that players choose is one in which no player would do better by selecting a different strategy given what the other players are doing. For games with a single Nash equilibrium, the players will likely choose the strategies in this equilibrium. For games with multiple equilibria, such as the stag hunt, it is difficult to predict how players will behave, even though one of the equilibria gives higher payoffs to each player. 11. Experiments with other types of games also reveal that people from different cultures play differently under the same objective conditions. Their moves in ultimatum, dictator, and public goods games varied significantly, as did their conceptions of what they saw as the appropriate terms of cooperation and what behavior they expected from their counterparts. The Lamalera of Indonesia, for example, considered proper play to be altruistic; on the other hand, the Machiguenga of Peru accepted selfish play as justifiable (Henrich 2004; Henrich et al. 2001; Güth, Schmittberger, and Schwarze 1982). 12. As will be discussed in Chapter 3, there are several schools of realist thought, with each giving somewhat different explanations of why states behave as

Cooperating to Manage the Use of Force

13.

14.

15.

16.

17

they do, and each offering distinctive recommendations on how states ought to behave in order to be successful. Drawing general conclusions from such a diverse body of thought risks misrepresenting the prescriptions of any given theorist. Nevertheless, there are sufficient commonalities to abstract some general themes regarding the advice realists give to national leaders on how to conduct their foreign policies. For a representative collection of works from the principal schools of realist thought, see Elman and Jensen (2014). Nation-states vary widely in their military and economic capabilities. A major power (sometimes referred to as a “great power”) possesses the strength to exercise control over a wide domain of targets and an extensive scope of issues, usually by virtue of having a broad range of rewards and punishments at its disposal. In comparison with other states, it is more able to make someone else continue a course of action, change what it is doing, or refrain from acting on a matter of interest (Kegley and Raymond 2021). For an overview of other definitions, see Levy (1983, pp. 10–19). In describing the state system as anarchic, I am not denying the existence of stratification (see Zarakol 2017). States vary in size and strength. Occasionally, some states may cede at least partial authority over their security policies to more powerful states, trusting that they will be protected against external threats (Lake 2009, p. 176). Still, this does not vitiate the effects of anarchy. The protection subordinate states receive is more like that provided by a brawny neighbor than by a law enforcement officer embedded within a reputable judicial system. This term comes from the British diplomat Harold Nicolson (1946, pp. 19– 20), who asserted that rare “are the occasions on which any statesman sees his objective clearly before him and marches toward it with undeviating stride; numerous indeed are the occasions when a decision or an event, which at the time seemed wholly unimportant, leads almost fortuitously to another decision which is no less incidental, until, little by little link, the chain of circumstances is forged.” Although the precise origins of the concept of “animal spirits” are shrouded in the mists of history, during the third century BCE, Erasistratus and other Alexandrian anatomists popularized the term by applying it to the animating fluid they believed was carried throughout the body by the nervous system. Claudius Galen’s subsequent refinement of this conception of physiology influenced medical thinking for the next millennium and a half (Smith et al. 2012, pp. 32–40). John Maynard Keynes (1936, pp. 161–162) initiated the modern social scientific usage of the term when he described the “spontaneous urge to action” among humans, which he imagined arose from emotional impulse rather than rational calculation. For an extension of this line of thought, see Akerlof and Shiller (2009).

18

1 Introduction: Order Without Leviathan

References Akerlof, G. A., & Shiller, R. J. (2009). Animal spirits: How human psychology drives the economy, and why it matters for global capitalism. Princeton: Princeton University Press. Banerjee, S. (2015). Rules, agency, and international structuration. International Studies Review, 17(2), 274–297. Bargh, J. A., & Ferguson, M. J. (2000). Beyond behaviorism: On the automaticity of higher mental processes. Psychological Bulletin, 126(6), 925–945. Barkun, M. (1968). Law without sanctions: Order in primitive societies and the world community. New Haven: Yale University Press. Barrett, L. F. (2017). How emotions are made. New York: Mariner Books. Bechara, A., Damasio, A. R., Damasio, H., & Anderson, S. W. (1994). Insensitivity to future consequences following damage to human prefrontal cortex. Cognition, 50(1), 7–15. Bechara, A., Damasio, H., Tranel, D., & Damasio, A. R. (1997). Deciding advantageously before knowing the advantageous strategy. Science, 275(5304), 1293–1295. Bhattacharyya, A. (1953, July). An account of the Birhor of Palamau. Bulletin of the Indian Department of Anthropology, 2, 1–16. Bohannan, P. (1957). Justice and judgment among the Tiv. Oxford: Oxford University Press. Cahill, L. (2000). Modulation of long-term memory storage in humans by emotional arousal: Adrenergic activation and the amygdala. In J. P. Aggleton (Ed.), The amygdala: functional analysis (pp. 425–445). Oxford: Oxford University Press. Campbell, A. (1988). International law and primitive law. Oxford Journal of Legal Studies, 8(2), 169–196. Canaipa, R., Treister, R., Lang, M., Moreira, J., & Caldas, A. (2016). Feeling hurt: Pain sensitivity is correlated with and modulated by social stress. Clinical Journal of Pain, 32(1), 14–19. Carter, C. J. (1987). Rousseau and the problem of war. New York: Garland. Chacko, J. C. (1958). India’s contribution to the field of international law concepts. Recueil des Cours, 93, 121–221. Chagon, N. A. (2013). Y˛anomamö (6th ed.). Belmont, CA: Wadsworth. Cikara, M., Botvinick, M. M., & Fiske, S. T. (2011). Us versus them: Social identity shapes neural responses to intergroup competition and harm. Psychological Science, 22(3), 306–313. Combs-Schilling, M. E. (1985). Family and friend in a Moroccan boom town: The segmentary debate reconsidered. American Ethnologist, 12(4), 659–675. Cosmides, L. (1989). The logic of social exchange: Has natural selection shaped how humans reason? Studies with the Wason selection task. Cognition, 31(3), 187–276. Cosmides, L., & Tooby, J. (1992). Cognitive adaptations for social exchange. In J. H. Barkow, L. Cosmides, & J. Tooby (Eds.), The adapted mind: Evolutionary psychology and the generation of culture (pp. 163–228). New York: Oxford University Press. Cosmides, L., & Tooby, J. (2005). Social exchange: The evolutionary design of a neurocognitive system. In M. S. Gazzaniga (Ed.), The cognitive neurosciences III (pp. 1295–1308). Cambridge, MA: MIT Press. Damasio, A. R. (1994). Decartes’ error: Emotion, reason and the human brain. New York: Putnam. Diamond, J. (2012). The world until yesterday. New York: Penguin. Dinstein, Y. (1986). International law as a primitive legal system. New York University Journal of International Law and Politics, 19(1), 1–32. Dolcos, F., & Cabeza, R. (2002). Event-related potentials of memory: Encoding pleasant, unpleasant, and neutral pictures. Cognitive, Affective and Behavioral Neurosciences, 2(3), 252–263. Dostoevsky, F. (1965). Notes from underground. In W. Kaufmann (Ed.), Existentialism from Dostoevsky to Sartre (pp. 52–82). Cleveland: World Publishing Company. (Original work published 1864) Durkheim, E. (2014). The division of labor in society (S. Lukes, Trans.). New York: Free Press. (Original work published 1893)

References

19

Eisenberger, N. I., Lieberman, M. D., & Williams, K. D. (2003). Does rejection hurt? An fMRI study of social exclusion. Science, 302(October), 290–292. Elman, C., & Jensen, M. A. (Eds.). (2014). Realism reader. New York: Routledge. Elster, J. (1989). The cement of society: A study of social order. Cambridge: Cambridge University Press. Endicott, K. (1988). Property, power and conflict among the Batek of Malaysia. In T. Ingold, D. Riches, & J. Woodburn (Eds.), Hunters and gatherers: Property, power and ideology (pp. 110– 127). Oxford: Berg. Evans, J. St. B. T. (2008). Dual-processing accounts of reasoning, judgment, and social cognition. Annual Review of Psychology, 59, 255–278. Evans, J. St. B. T., & Stanovich, K. E. (2013). Dual-processing theories of higher cognition: Advancing the debate. Perspectives on Psychological Science, 8(3), 223–241. Evans-Prichard, E. E. (1940). The Nuer: A description of the modes of livelihood and political institutions of a nilotic people. Oxford: Clarendon Press. Ewald, F. (1991). Norms, discipline, and the law. In R. Post (Ed.), Law and the order of culture (pp. 138–161). Berkeley: University of California Press. Fellows, L. K., & Farah, M. J. (2007). The role of ventromedial prefrontal cortex in decision making: Judgment under uncertainty or judgment per se? Cerebral Cortex, 17(112), 2669–2674. Fidler, D. P. (1996). Desperately clinging to Grotian and Kantian sheep: Rousseau’s attempted escape from the state of war. In I. Clark & I. B. Neumann (Eds.), Classical theories of international relations (pp. 120–141). London: Macmillan. Fortes, M. (1949). The web of kinship among the Tallensi. London: Oxford University Press. Fortes, M., & Evans-Pritchard, E. E. (Eds.). (1940). African political systems. London: Oxford University Press. Fry, D. P. (2007). Beyond war: The human potential for peace. New York: Oxford University Press. Fry, D. P. (2006). The human potential for peace: An anthropological challenge to assumptions about war and violence. New York: Oxford University Press. Gellner, E. (1995). Segmentation: Reality or myth? Journal of the Royal Anthropological Institute, 1(4), 821–829. Glennon, M. J. (2003). Sometimes a great notion. Wilson Quarterly, 27(4), 45–49. Goldsmith, J. L., & Posner, E. A. (2005). The limits of international law. Oxford: Oxford University Press. Greene, J. D., Sommerville, R. B., Nystrom, L. E., Darley, J. M., & Cohen, J. D. (2001). An fMRI investigation of emotional engagement in moral judgment. Science, 293(5537), 2105–2108. Güth, W., Schmittberger, R., & Schwarze, B. (1982). An experimental analysis of ultimatum bargaining. Journal of Economic Behavior & Organization, 3(4), 367–388. Haidt, J. (2001). The emotional dog and its rational tail: A social intuitionist approach to moral judgment. Psychological Review, 108(4), 814–834. Hanoch, Y. (2002). Neither an angel nor an ant: Emotion as an aid to bounded rationality. Journal of Economic Psychology, 23(1), 1–25. Hassner, P. (1997). Rousseau and the theory and practice of international relations. In N. Tarcov & C. Orwin (Eds.), The legacy of Rousseau (pp. 200–219). Chicago: University of Chicago Press. Henkin, L. (1979). How nations behave. New York: Columbia University Press. Henrich, J. (2004). Foundations of human sociality. Oxford: Oxford University Press. Henrich, J., Boyd, R., Bowles, S., Camerer, C., Fehr, E., Gintis, H., et al. (2001). In search of homo economicus: Behavioral experiments in 15 small-scale societies. American Economic Review, 91(2), 73–78. Herrmann, E., Call, J., Hernàndez-Lloreda, M. V., Hare, B., & Tomasello, M. (2007). Humans have evolved specialized skills of social cognition: The cultural intelligence hypothesis. Science, 317(5843), 1360–1366. Hobbes, T. (1651). Leviathan, or, the matter, forme, & power of a common-wealth ecclesiastical and civil. London: Andrew Ckooke.

20

1 Introduction: Order Without Leviathan

Hoffmann, S. (1963). Rousseau on war and peace. American Political Science Review, 57(2), 317– 333. Hoffmann, S., & Fidler, D. P. (Eds.). (1991). Rousseau on international relations. Oxford: Clarendon. Holmes, M. (2018). Face-to-face diplomacy: Social neuroscience and international relations. New York: Cambridge University Press. Holý, L. (Ed.). (1979). Segmentary lineage systems reconsidered. Belfast: Queen’s University Papers in Social Anthropology. Huntington, S. P. (2004). Who are we? The challenges to America’s national identity. New York: Simon & Schuster. Hymans, J. E. C. (2006). The psychology of nuclear proliferation: Identity, emotions, and foreign policy. New York: Cambridge University Press. Jervis, R. (1978). Cooperation under the security dilemma. World Politics, 30(2), 167–214. Kahneman, D. (2011). Thinking, fast and slow. New York: Farrar, Straus and Giroux. Kegley, C. W., Jr., & Raymond, G. A. (2021). Great powers and world order: Patterns and prospects. Thousand Oaks, CA: CQ Press/Sage. Kegley, C. W., Jr., & Raymond, G. A. (2002). Exorcising the ghost of Westphalia: Building world order in the new millennium. Upper Saddle River, NJ: Prentice-Hall. Kemp, G., & Fry, D. P. (Eds.). (2004). Keeping peace: Conflict resolution and peaceful societies around the world. London: Routledge. Keohane, R. O. (1984). After hegemony: Cooperation and discord in the world economy. Princeton: Princeton University Press. Keynes, J. M. (1936). The general theory of employment, interest and money. London: Macmillan. Knoblock, J. (1988–1994). Xunzi: A translation and study of the complete works (Vols. 1–3). Stanford: Stanford University Press. Koenigs, M., Young, L., Adolphs, R., Tranel, D., Cushman, F., Hauger, M., et al. (2007). Damage to the prefrontal cortex increases utilitarian moral judgments. Nature, 446(7138), 908–911. Kujur, J. M., & Topno, M. (1999). Birhors and their dances. In R. D. Tribhuwan & P. D. Tribhuwan (Eds.), Tribal dances of India (pp. 36–50). New Delhi: Discovery Publishing House. Kuper, A. (1982). Lineage theory: A critical retrospect. Annual Review of Anthropology, 11(1), 71–95. Lake, D. A. (2009). Hierarchy in international relations. Ithaca: Cornell University Press. Leonardelli, G. J., Pickett, C. L., & Brewer, M. B. (2010). Optimal distinctiveness theory: A framework for social identity, social cognition, and intergroup relations. In M. Zanna & J. Olson (Eds.), Advances in experimental social psychology (Vol. 43, pp. 65–115). New York: Elsevier. Levy, J. S. (1983). War in the modern great power system, 1495–1975. Lexington: University of Kentucky Press. Libet, B. (2004). Mind time: The temporal factor in consciousness. Cambridge, MA: Harvard University Press. Loewenstein, G. F., Weber, E. U., Hsee, C. K., & Welch, N. (2001). Risk as feelings. Psychological Bulletin, 127(2), 267–286. March, J. G., & Olsen, J. P. (2008). The logic of appropriateness. In M. Moran, M. Rein, & R. E. Goodwin (Eds.), The Oxford handbook of public policy (pp. 689–708). Oxford: Oxford University Press. Masters, R. D. (1964). World politics as a primitive political system. World Politics, 16(4), 595–619. McAdams, R. H. (2008). Beyond the prisoner’s dilemma: Coordination, game theory and the law (John M. Olin Program in Law and Economics Working Paper No. 437). University of Chicago. McDermott, R. (2004). The feeling of rationality: The meaning of neuroscientific advances for political science. Perspectives on Politics, 2(4), 691–706. Mele, A. R. (2014). Free: Why science hasn’t disproved free will. New York: Oxford University Press. Middleton, J., & Tait, D. (Eds.). (1958). Tribes without rulers: Studies in African segmentary systems. London: Routledge & Kegan Paul.

References

21

Modelski, G. (1961). Agraria and industria: Two models of the international system. In K. Knorr & S. Verba (Eds.), The international system: Theoretical essays (pp. 118–143). Princeton: Princeton University Press. Monroe, K. R. (1995). Psychology and rational actor theory. Political Psychology, 16(1), 1–21. Muramatsu, R., & Hanoch, Y. (2005). Emotions as a mechanism for bounded rational agents: The fast and frugal way. Journal of Economic Psychology, 26(2), 201–221. Nicolson, H. (1946). The congress of Vienna. New York: Harcourt, Brace. Niebuhr, R. (1960). Moral man and immoral society. New York: Simon & Schuster. Nisbett, R. E., & Wilson, T. (1977). Telling more than we can know: Verbal reports on mental processes. Psychological Review, 84(3), 231–259. O’Neill, B. (2001). Honor, symbols, and war. Ann Arbor: University of Michigan Press. Penn, W. (2012). Some fruits of solitude. Green Forest, AR: Attic Books. Peters, E. (2006). The functions of affect in the construction of preferences. In S. Lichtenstein & P. Slovic (Eds.), The construction of preference (pp. 454–463). Cambridge: Cambridge University Press. Phelps, E. A. (2006). Emotion and cognition: Insights from studies on the human amygdala. Annual Review of Psychology, 57(1), 27–53. Richardson, D. (2005). Peace child (4th ed.). Ventura, CA: Regal. Roisman, H. M. (1987). Penelope’s indignation. Transactions of the American Philological Association, 117, 59–68. Roisman, H. M. (1994). Like father like son: Telemachus’ kerdea. Rheinisches Museum für Philologie, 137(1), 1–22. Roosevelt, G. (2006). Rousseau versus Rawls on international relations. European Journal of Political Theory, 51(3), 301–320. Rousseau, J. J. (1755). Discours sur l’origine et les fondemens de l’inégalité. Amsterdam: Marc Michel Ray. Sastry, K. R. R. (1966). Hinduism and international law. Recueil des Cours, 117, 507–615. Schuessler, A. A. (2000). The logic of expressive action. Princeton: Princeton University Press. Seabury, P. (1963). Power, freedom, and diplomacy. New York: Random House. Seneca, L. A. (1985). Moral essays (J. Basore, Trans.). London: Heinemann. (Original work dated ca. 50 CE) Simon, H. A. (1957). Models of man, social and rational: Mathematical essays in rational human behavior in a social setting. New York: Wiley. Simon, H. A. (1983). Reason in human affairs. Stanford: Stanford University Press. Simon, S., & Martini, J. (2004). Terrorism: Denying Al Qaeda its popular support. Washington Quarterly, 28(1), 131–145. Skyrms, B. (2004). The stag hunt and the evolution of social structure. New York: Cambridge University Press. Smith, C. U. M., Frixione, E., Finger, S., & Clower, W. (2012). The animal spirit doctrine and the origins of neurophysiology. Oxford: Oxford University Press. Smith, R. H., Webster, J. M., Perrott, W. G., & Eyre, H. L. (2002). The role of public exposure in moral and nonmoral shame and guilt. Journal of Personality and Social Psychology, 83(1), 138–159. Sophocles (1957). Philoctetes (K. Freeman, Trans.). In L. R. Lind (Ed.), Ten Greek plays in contemporary translations (pp. 160–210). Boston: Houghton Mifflin. (Original work dated 409 BCE) Suganami, H. (1989). The domestic analogy and world order proposals. Cambridge: Cambridge University Press. Tangney, J. P., & Dearing, R. L. (2002). Shame and guilt. New York: Guilford. Taylor, G. (1987). Pride, shame, and guilt: Emotions of self-respect. New York: Oxford University Press. Velleman, J. D. (2001). The genesis of shame. Philosophy & Public Affairs, 30(1), 27–52. Wegner, D. M. (2003). The illusion of conscious will. Cambridge, MA: MIT Press.

22

1 Introduction: Order Without Leviathan

Weiner, M. S. (2013). The rule of the clan. New York: Farrar, Straus and Giroux. Wendt, A. (1992). Anarchy is what states make of it: The social construction of power politics. International Organization, 46(2), 391–425. Williams, B. (1993). Shame and necessity. Berkeley: University of California Press. Wilson, E. O. (2012). The social conquest of Earth. New York: Liveright. Zarakol, A. (Ed.). (2017). Hierarchies in world politics. Cambridge: Cambridge University Press.

Chapter 2

International Norms

On the east bank of the Nile River, approximately halfway between Cairo and Luxor, are remnants of the ancient city of Akhetaten, constructed by the pharaoh Amenhotep IV to replace Thebes as Egypt’s capital. Among the artifacts discovered by archeologists are nearly four hundred cuneiform tablets that describe diplomatic relations between Egypt and neighboring great powers during the eighteenth dynasty of the New Kingdom (Moran 1992). Written in Akkadian, the lingua franca of the ancient Near East, they reveal that by the fourteenth century BCE, states throughout the region had adopted an elaborate code of conduct, according to which the so-called Great Kings of Egypt, Hatti (located in central Turkey), Mittani (northern Syria), Babylonia (southern Iraq), and Assyria (upper Tigris Valley) were members of an extended family: They possessed rights and duties based on rank, they followed elaborate protocol when interacting, and they held common beliefs about what constituted proper behavior. Like brothers, the Great Kings occasionally quarreled, though their rivalries were tempered by norms that reduced the odds that disagreements would escalate to fratricidal violence. Several features of this code are noteworthy for students of international relations. First, it provided a medium for diplomatic discourse. Second, it held sway among states with different languages, religions, and traditions. Third, it restrained the use of military force (Liverani 2001; Cohen and Westbrook 2000; Cohen 1996). Thus, contrary to the claim that anarchic state systems lack rules, the code followed by these leaders reveals that normative standards can regulate interactions among autonomous political entities even in the absence of an awe-inspiring central authority. Based on documents unearthed at Akhetaten, it is clear that the Great Kings regularly used the idiom of prevailing norms to convey their opinions on contentious issues and to articulate the expectations they had of their peers. By having a stylized vocabulary through which they could express themselves with clarity and discretion, the Great Kings were able to deftly side-step onerous requests without causing insult, and broach controversial topics without provoking hostility.1 The code of international norms that underpinned this nuanced diplomatic lexicon also facilitated trade, commercial mediation, exchanges of ambassadors, and efforts to seal © The Author(s) 2021 G. A. Raymond, International Norms and the Resort to War, https://doi.org/10.1007/978-3-030-54012-8_2

23

24

2 International Norms

alliances through dynastic marriages (Altman 2012; Ago 1983). In short, the archeological record suggests that international norms in the ancient Near East influenced foreign policy behavior by communicating shared understandings about the scope of a state’s entitlements, the extent of its obligations, and the range of its jurisdiction.

The Growing Attentiveness to International Norms Although evidence of implicit understandings and formal protocols among states can be found throughout recorded history, only in recent decades have international norms attracted serious interest from theorists outside the fields of ethics and jurisprudence. Figure 2.1 shows changes in the level of attention given to international norms in English-language books published since 1945. As the trend line reveals, norms were largely ignored by scholars immediately after World War II. Political realism, the leading theory of world affairs at the time, questioned whether they affected politics among nations. Normative injunctions, realists said, explained little after one filtered out what statesmen had already decided to do based on their country’s national interest. Echoing the nineteenth-century English legal positivist John Austin (1995, pp. 23–124, 175–176), realists argued that international norms were moral sentiments, not commands enforced by a supreme authority. They were toothless and could safely be ignored. 0.0040% 0.0035% 0.0030% 0.0025% 0.0020% 0.0015% 0.0010% 0.0005% 0.0000%

Fig. 2.1 Degree of attention given to international norms, 1945–2008 (The trend line shows a five-year moving average in the annual percentage of international-norm bigrams in Englishlanguage books published between 1945 and 2008. Bigrams are contiguous sequences within a text of two designated terms, “international” and “norm(s)” in this case. The higher the number of international-norm bigrams as a percentage of all bigrams, the greater the attention given to the concept of international norm. The population of books searched with Ngram Viewer consisted of the over 5.2 million publications digitized by Google Inc. Because the volume of publications varies over time, the data were normalized by the number of books published each year. For a discussion of this methodology, see Michel et al. [2011])

The Growing Attentiveness to International Norms

25

International norms experienced a modest upturn in popular attention during the mid-1960s, a period when social scientists began to challenge the Austinian view of international law. Rather than being seen as commands, legal norms were now understood as a medium through which a consensus on the nature of the interstate system was communicated among agents of diplomatic intercourse. By describing which foreign policy goals and instruments were considered fitting in specific circumstances, international norms reflected the existing climate of opinion about the rights and duties of sovereign states and the appropriateness of different actions that they might undertake (Coplin 1966, pp. 168–171; Barkun 1964). Interest in international norms rose again a decade later, with seminal contributions made by the English School of international relations (see Linklater and Suganami 2006; Dunne 1998). Hedley Bull (1977, p. 13), a prominent member of this school of thought, drew a distinction between international systems and international societies.2 When referring to a system of states, he noted, most people had in mind a set of regularly interacting political entities that were sufficiently interdependent to make the behavior of each influential on the others. If these states shared common values, he proposed that they could be considered members of a rudimentary international society.3 Whereas members of a state system observe certain conventions regarding the treatment of envoys, the sanctity of trade agreements, and similar exchanges anchored in reciprocity, those belonging to an international society possess a deeper, culturally grounded code of conduct. Take, for example, the Aegean world prior to the victory of Philip II at Chaeronea. Persia regularly interacted with the Greek city-states of the region and was considered part of the interstate system. However, owing to important cultural differences, it did not belong to the Greek society of states. Heralds might be respected by Greeks and Persians alike, but Athenians, Corinthians, Spartans, and other Greeks understood that they had obligations toward one another that did not apply to those outside of Hellenic culture. Indeed, a common theme throughout Greek epics and drama from Homer’s Polyphemus to Euripides’ Polymestor was that a violation of these obligations led to ruin (Bauslaugh 1991, p. 44). Attention to international norms surged after the mid-1980s,4 propelled by liberal institutionalist and social constructivist scholarship. Liberal institutionalists demonstrated that international norms expedite foreign policy coordination in situations containing multiple equilibria, where each cooperative outcome has different distributional implications and thus different preference rankings among the states involved (Keohane and Martin 1995, p. 45). Social constructivists, who drew attention to the links between language, rules, and rule (Wendt 1999; Kratochwil 1989; Onuf 1989), pointed out that international norms are more than coordination mechanisms; they also are constitutive in the sense that they make certain practices possible by defining what counts as a particular activity and imbuing it with meaning. Over the next few decades, world politics was increasingly seen as playing out within a normative environment. Some norms were embedded in written accords; others, in tacit agreements. Regardless of their explicitness, international norms provided foreign policymakers with guidelines whose influence on their behavior was noncoercive but substantial. Once researchers began to appreciate these rules of

26

2 International Norms

the road, they started analyzing how much impact they had in various policy arenas, including human rights (Barnes 2017; Linde 2016; Clark 2001; Thomas 2001; Klotz 1995; Ray 1989), humanitarian intervention (Peltner 2017), sanctions (Saltnes 2017), corruption (Kim and Sharman 2014), election monitoring (Hyde 2011; Kelley 2008), weaponry (Bower 2015; Mazanec 2015; Dolan 2013; Tannenwald 2007; Garcia 2006; Price 1995), decolonization (Goertz and Diehl 1994), immigration (Ross and Zaun 2014), mercenaries (Thomson 1990), piracy (Nadelmann 1990), as well as on commercial (Cho 2015), environmental (Cass 2006; Dimitrov 2005; Mitchell 1994), transportation (Zacher and Sutton 1996), and health regimes (Hein and Moon 2016; Davies et al. 2015). Additionally, scholars began exploring how international norms regulated the behavior of nonstate actors on the world stage (Kollman 2008). By the early twenty-first century, references to the virtues of a consensual, rulebased world order routinely appeared in the speeches of national leaders. US President Barack Obama’s December 10, 2009 address at the Nobel Peace Prize ceremony in Oslo exemplified the tenor of these comments. “All nations,” Obama urged, “must adhere to standards that govern the use of force.” It “strengthens those who do, and isolates those who don’t.” Delegates to the UN General Assembly’s September 2012 high-level meeting on the rule of national and international law voiced similar opinions. Undeniably, interest in international legal norms had grown. Yet for political realists, threadbare platitudes delivered at the United Nations and other international fora did not clothe the naked truth that international norms were incapable of stopping aggressors. According to canonical realist thought, foreign policy behavior is primarily affected by the distribution of material capabilities among members of the state system. International norms that rein in arbitrary uses of military force while still giving leaders the latitude to adjust swiftly to changes in the international balance of power are thought to make an ancillary contribution to world order. Norms with more restrictive content are seen less favorably. Highly restrictive norms might play a constructive role in the “low politics” of commercial, financial, and monetary affairs, some realists concede; however, they deny that restrictive norms have a significant impact in the “high politics” of security policy.5 Here, realists argue, norms are epiphenomenal; they mirror the interests of powerful states, who object anything that might hamstring their freedom of action (Mearsheimer 1994, pp. 15–16). When stripped of embellishments, the rationale for normative permissiveness voiced by the leaders of these states echoes the memorable complaint of the Roman general Pompey the Great: “Stop quoting the law to us. We carry the swords” (as cited in Fichtelberg 2008, p. 8).

The Relevance of International Norms Norms are ubiquitous. From the guidelines governing social etiquette through the standards informing moral judgment, norms permeate almost every form of human interaction, disciplining behavior in the most unexpected places. Contestants in the

The Relevance of International Norms

27

calico storico, the brutal melee held since the sixteenth century in Florence’s Piazza Santa Croce, follow long-standing conventions on brawling. Similarly, the cataphiles, self-described “urban explorers” who roam the warren of tunnels, shafts, and chambers beneath Paris, obey unwritten protocols that bestow respect on the catacombs (Macfarlane 2019, pp. 142–143). Even during the most frigid years of the Cold War, covert operatives on each side quietly agreed that certain actions, such as harming the children of government officials, were unacceptable (Blackstock 1970, p. 15). Nearly everywhere anthropologists and sociologists look, they find rule-governed behavior. Their research has shown that children as young as three years old understand rules and tend to protest when they are violated (Rakoczy et al. 2008). Throughout history and across cultures, norms have censured the scurrilous, regulated the dangerous, and guarded the hallowed. Given the ubiquity of norms, it is not surprising that studies of hunting and gathering bands, the most primitive political systems for which we have records, indicate that the earliest human groups routinely developed codes of conduct to manage their relations (Numelin 1950; Vinogradoff 1920; Maine 1861). Nor should we be amazed that similar conclusions have been reached about the first multistate systems. Diplomatic letters from the twenty-third century BCE found near Aleppo in Syria indicate that roughly a thousand years before Pharaoh Amenhotep IV corresponded with his fellow Great Kings about their fraternal rights and duties, King Irkab-damu of Ebla (modern Tell Mardikh) appealed to prevailing norms when negotiating a peace treaty with King Zizi of Hamazi, a state that is thought to have been located in northern Iran (Podany 2010). For as long as we can ascertain, norms have been a feature of the human experience. International norms are an integral part of world politics, part of the social totality within which foreign policy decisions are situated. “Norms may be less tangible than material phenomena,” observes Daniel Thomas (2001, p. 44), “but they are not necessarily any less real.” They inform decision makers about how others have acted in similar circumstances and disclose what is considered appropriate in the current situation. Norms are influential because they build on peoples’ desire for their peers to think well of them, which is reinforced by what psychologists call a “spotlight” effect—the tendency to assume that others are paying close attention to one’s behavior (Gilovich et al. 2000). Behaving appropriately enhances stature, which facilitates enlisting help in times of need, obtaining accommodations during collaborative endeavors, and forestalling retaliation for perceived slights (Kraft-Todd et al. 2015; Guzman 2008). One indication of the importance of status and esteem can be seen in the conflicts that have arisen from affronts to a state’s reputation. According to Richard Ned Lebow’s (2010, p. 16) qualitative analysis of 94 lethal armed conflicts since 1648, “standing has been a principal motive for war since the modern state system came into being.” By conveying what constitutes appropriate behavior, international norms perform several regulative functions (Cohen 1981, pp. 16–21; Lang et al. 2006). First, they provide stock procedures for expediting international interaction. As commercial, financial, and other contacts among nations increase, the need for consistent, uniform proceedings to guide these dealings grows. International norms routinize

28

2 International Norms

these exchanges, depicting “dos” and “don’ts” that reduce the need to weigh every contingency (Blum and Heymann 2010, p. 24). By circumscribing specific functional domains and describing established practices within them, international norms offer a template for coordinating joint action (Kratochwil 1984a, p. 707). They establish a context for interpreting the policy signals sent by others, therein providing an opening for policymakers to reflect on their plans and reconsider the assumptions behind them—two mental steps that have been shown to reduce dishonesty (Ariely 2012; Shalvi et al. 2012). Second, norms delineate frontiers. Beyond specifying the properties of state boundaries, international norms define buffer zones, neutralized areas, and spheres of influence. Examples of these extraterritorial rules include those found in the 1828 Treaty of Montevideo, which established Uruguay as a buffer zone between Argentina and Brazil; those built into the 1867 Treaty of London, which guaranteed the neutrality of the Grand Duchy of Luxembourg; and those underlying the 1494 Treaty of Tordesillas, which demarcated the boundaries of the Spanish and Portuguese spheres of colonial influence in the Western Hemisphere. Since territorial disputes have a high probability of escalating to war, norms that keep them off the global agenda and dissuade states from dealing with them unilaterally help promote peace (Vasquez 1995, pp. 289–290). Third, international norms serve as caution signs alerting national leaders to the prearranged actions that certain states will take in specific situations. For example, the signatories to the 1881 Three Emperors’ League pledged that in the event of war between one of them and a great power not party to the treaty, the other two signatories would maintain benevolent neutrality. By providing this kind of information, norms discourage flouting the status quo. Anyone contemplating a transgression has prior notification of the actions that other politically relevant states will take. Fourth, international norms operate like tripwires. If a widely accepted rule is contravened, attention becomes focused on the violation so that a collective response can be mobilized. For example, King Louis XIV severed two tripwires late in his reign that led to the formation of an anti-French alliance composed of the Holy Roman Emperor, the kings of Spain and Sweden, and the electors of Bavaria, Saxony, and the Palatinate, as well as Savoy, Holland, and England. Not only did Louis violate the Peace of Westphalia in 1681 by occupying Strasbourg, a free city of the Holy Roman Empire, he also revoked the Edict of Nantes in 1685, which had reduced religious conflict by granting Protestants extensive rights. As a result of these actions, Louis encouraged his Catholic and Protestant opponents to set aside their differences and join forces against him. By performing these regulative functions, international norms reduce uncertainty about the behavior of others. Those who consistently play by recognized rules enhance their reputations for trustworthiness, which makes it easier to settle disputes, reach agreements, and forge partnerships. Foreign policy undertakings proceed more smoothly when a state is trusted by its peers. Trusting another state to act in a certain way carries expectations about the capacity and the intention of its leaders. When a state is trusted, others presume that those directing its foreign policy have the ability to fulfill the commitments they make

The Relevance of International Norms

29

and will honestly try to carry them out. National leaders who value a reputation for dependability are only likely to violate an international legal norm if it, or the situation they face, is ambiguous enough to plausibly claim an exemption (Shannon 2000). Conversely, leaders who disregard reputational concerns, imagine that they can control events, and see the international exchanges in zero-sum terms are less apt to comply with normative restrictions on their actions (Yarhi-Milo 2018; Shannon and Keller 2007). Journalist Charlie Savage’s (2015, pp. 66, 271) description of national security policymaking in the Obama administration illustrates this point. Barack Obama believed that a reputation for adhering to international legal standards was a source of national strength. “Whenever there was a legal angle—even soft law or shades-ofgray law, like norms of international behavior—the Obama team took it seriously,” writes Savage. While acknowledging that legal norms alone did not affect the administration’s decisions, Savage observed that “a serious engagement with legal issues … permeated and shaped the [administration’s] deliberations.” As John Brennan, a White House counterterrorism advisor who later directed the Central Intelligence Agency under President Obama, candidly explained, government lawyers regularly examined whether administration proposals for using military force were consistent with legal norms. Their efforts, he acknowledged, gave us “a good sense of … those legal parameters … within which we [could] work” (as cited in Savage 2015, p. 278). To be clear: Not everyone agrees that the reputational capital derived from consistently following international norms is a vital asset in world politics. Capriciousness, some commentators argue, provides greater bargaining leverage because it keeps competitors off balance. People give wide berth to those who are volatile and impulsive, fearing that pressing too hard on a touchy issue will trigger a disproportionate response that they are not prepared to handle (Burr and Kimball 2015, pp. 50–65). A leader with a history of breaking widely respected rules of statecraft makes it difficult to anticipate how he or she will act in the future. Surprise, so this reasoning goes, gives pause to rivals. “Unpredictability is the greatest asset … that a leader can have,” insisted former US President Richard Nixon (as cited in Barber 2016). Although unpredictability may pay off now and again, research indicates that it has a poor track record in furthering a country’s national interests. Rarely does erratic, untrustworthy behavior cow opponents into making significant concessions (Walt 2017). Instead, it arouses fears of exploitation and betrayal. Foreign policy decision makers are understandably cautious when dealing with fickle counterparts, harboring deep suspicions about any state branded as a persistent cheater. Realizing this, most national leaders concentrate on building a reputation for dependability, despite occasional incentives to bluff (Sartori 2005, pp. 44–49). Remarkably, leaders appear to lie less often about foreign policy issues to other governments than they do to their fellow citizens (Mearsheimer 2011). Trustworthiness, they understand, facilitates cooperation, even when state interests are not well aligned (Rathbun 2012; Kydd 2005). Consistent behavior, combined with a reputation for reliability, is more effective in advancing their interests than notoriety for flouting international norms. Donald Trump is an obvious exception to this generalization. After a year in office, according to data collected by the Washington Post, Trump made 2140 false

30

2 International Norms

or misleading public claims. By the end of his third year, the total reached 16,241, averaging nearly 15 per day (Fact Checker 2020). Furthermore, as revealed in an analysis of Twitter activity during his first 33 months in the White House, 1710 of Trump’s tweets and retweets promoted groundless conspiracy theories (Shear et al. 2019), which he sought to substantiate through bluster and endless repetition rather than through logic and empirical corroboration (Muirhead and Rosenblum 2019, p. 52). Speaking at a fundraiser held in suburban St. Louis on March 14, 2018, Trump implied that using innuendo and deliberate falsehoods were part his negotiating strategy; however, a prominent behavioral scientist who studies lying demurs that his mendacity is “violating some of the most fundamental norms of human social interaction” (DePaulo 2017).6 Among states with leaders who value favorable reputations, international norms enter the foreign policymaking process in various ways. One route is by swaying the decision calculi of government officials, moving them for or against a policy proposal because of its correspondence with, or divergence from, ideals that these individuals embrace. Another channel is through bureaucratic agencies that may have organizational cultures steeped in values that coincide with certain international norms. Still another path exists when interest groups and the attentive public rally around a particular norm when promoting a proposal that they favor. Norms can also enter a state’s policymaking process as a result of persuasion by “norm entrepreneurs” (individuals and organizations that actively promote changing current standards of conduct),7 due to information disseminated by epistemic communities (networks of experts on a given issue), or because of leverage exerted by other states. Finally, norms can affect policymaking through acculturation, where a state mimics an international reference group that possesses the social pedigree and moral prestige to validate compliance with the norm and stigmatize noncompliance.8 Given the many pathways by which international norms may influence foreign policy, it is not surprising that scholars disagree over how norms contribute to explaining patterned regularities in world politics. Norms have been treated as independent variables that directly affect international outcomes, as conditioning variables that modify the impact of other factors, and as intervening variables that function as an intermediate link within a complex causal sequence. Thus, despite the recent surge in the scholarly attention given to international norms, questions persist over the nature of norms and how they fit into explanations of state behavior. In order to make some headway in addressing these questions, let me clarify how I will define and measure international norms.

Defining International Norms One of the great debates within the social sciences concerns the relative importance of structure versus agency in explaining behavior. Do social structures account for the political events we witness, with human agents merely playing roles within those structures? Or do human agents acting on their own volition account for these events,

Defining International Norms

31

with social structures having a lesser effect? Framing this debate in terms of world politics, do the webs of expectation woven by international norms shape foreign policy decisions? Or do national leaders act with little regard to the normative milieu that surrounds them? Although the structure-agency problem has prompted various international relations theorists to ask whether the normative climate of world politics influences foreign policymakers, little data-based research has been conducted on whether norms have a significant, independent effect on their behavior, particularly when it comes to security matters. Perhaps this lacuna stems from the complexity of the relationship between individual action and group norms. Intricacies certainly abound. Some behavioral regularities appear to be governed by norms; others seemingly are not. Occasionally a single precedent gives birth to a norm; sometimes even habitual behavior does not beget new principles and protocols (Piper 1975, p. 26; Tunkin 1974, pp. 114–115). While this complexity may dissuade some researchers from studying international norms, it does not make norms impervious to scientific investigation. Without denying the complexity of normative phenomena, there is a more important obstacle that contributes to the paucity of data-based research on international norms. Quantitative work on the causes and consequences of international norms is hindered more by the multiple, conflicting meanings attributed to the term “norm” than by the complexity of the subject matter. Norms are different things to different people. One group of scholars sees them as modal forms of state behavior that have nothing to do with what is right or obligatory. A second group conceives of them as standards of proper behavior. Because these disagreements pose a central impediment to measuring and empirically analyzing international norms, let us briefly examine the two main ways that norms have been conceptualized.

Behavioral Definitions The contention that norms are uniformities in behavior has roots in sociology, where various researchers argued that behavioral regularities were important because they acquired an aura of propriety over time (Hoebel 1954, p. 15; Goodenough 1963, pp. 252–254). Rules of behavior, they asserted, eventually become rules for behavior. From this perspective, the most fruitful way to view international norms is as modal behavior—that is, as normal state practice (Thomson 1993, p. 81; Levi 1976, pp. 15–16). A norm “exists in a given social setting to the extent that individuals usually act in a certain way,” submits Robert Axelrod (1986, pp. 1097, 1107). In their analysis of the relations among the United States, Soviet Union, and People’s Republic of China, Sheen Rajmaira and Michael Ward (1990, pp. 461, 471) exemplify this definition by focusing on “a given equilibrium level or norm” around which “foreign policy behavior returns when it is perturbed from that level.” Occasional crises may move relations away from their set point but learned responses consistent with expectations about an opponent restore the “normal” pattern of foreign policy interactions.

32

2 International Norms

Joshua Goldstein’s (1994, p. 225) assertion that norms are “expectations held by national leaders about normal international relations” is another example of a behavioral definition of international norms. By his account, uses of force such as the 1990 Iraq invasion of Kuwait are wrong for going “beyond the normal amount of cheating that states get away with,” not because they violate a categorical moral principle. A corollary to many behavioral conceptions of international norms is the contention that norms do not differ in any basic way from state interests. According to this view, norms mirror interests because the expectation of external sanctions rather than internalized values accounts for conformity with normative injunctions. As Joanne Gowa and Tyler Pratt (2019, p. 241) write: “Because interests drive norms, little, if any, distinction exists between them.” What appears to be norm-guided action may simply be norm-fitting (Collett 1977, p. 15). In other words, a national leader’s interest-driven conduct may be in keeping with prevailing norms, but he or she may not feel any duty to act that way. For all their emphasis on persistent, interest-based patterns, behavioral definitions fail to capture the core essence of the phenomena they attempt to delineate. They focus on the normal but skirt the normative. That is to say, they neglect the obligatory property of international norms, which specifies what is acceptable and what is not within a particular group (Bos 1984, p. 7). Defining international norms without this deontic property is akin to conceiving of pesto alla genovese without basil.

Deontic Definitions Rather than focusing on the central tendency in a recurrent behavioral pattern, deontic definitions of norms emphasize the obligatory quality of norms. “The prescriptive dimension of norms is inescapable,” observes Annika Björkdahl (2002, pp. 14–15), “since norms involve ‘appropriateness’ and concerns about proper behavior” (see also Müller 2013, p. 5). Congruent with this line of thought, I conceptualize international norms as intersubjective understandings about appropriate state conduct in relatively specific situations. Norms convey a collective evaluation of what ought to be done and a collective expectation as to what will be done. Compliance with international norms elicits approval from other states—noncompliance, disapproval.9 National leaders achieve status through social recognition, which depends in part on whether they abide by normative expectations (Evans 2019, p. 15; Duque 2018; Miller et al. 2015). Norms affect states whose leadership is sensitive to their reputations because approval and disapproval, and the concomitant prospects of social inclusion or exclusion, trigger pride, shame, and other powerful emotions that reflect on one’s identity as an upstanding member of a society of states.10 States that fail to abide by international norms tend to be seen in a negative light, which prejudices others against future collaboration. Concerned that the loss of prospective gains might outweigh any shortterm benefits from noncompliance, national leaders generally observe international legal norms even if they do not advance their state’s immediate interests.11

Defining International Norms

33

Two corollaries accompany this conceptualization: (1) the existence of an international norm is not disproved by counterfactual incidents; and (2) the efficacy of international norms cannot be assessed in dichotomous terms. Let’s take these points one at a time. Imagine a norm that calls upon states to render assistance to any country suffering from an epidemic. In the event of an acute medical crisis in another country, most national leaders may feel an obligation to follow the norm’s injunction and give aid because this is what they understand as appropriate behavior in such situations. Nonparticipation by a handful of states would not disconfirm the existence of the norm. Just as the prohibition against murder in municipal legal norms is not invalidated by occasional homicides, an international legal norm is not annulled when a few states do not adhere to its directives. If, on the other hand, a norm is widely and consistently disregarded over a long period of time, it can be said to have fallen into desuetude. Continuing with our hypothetical epidemic, it is likely that the amount of assistance would vary among those states that provide medical aid, even after controlling for their respective levels of wealth. Some donors may be generous; others, stingy. What amount qualifies as fulfilling the expectation that it is appropriate to give assistance? How much help counts as norm compliance? As these questions intimate, a zone of ambiguity enshrouds international norms, which suggests that instead of thinking about compliance in binary terms—labeling states as either norm followers or norm dodgers—it is more accurate to think about compliance in terms of a continuum (Margolis 1990, p. 829; Kratochwil 1984b, p. 346). In summary, rather than conceptualizing international norms as stark Austinian commands that are either obeyed or violated, I conceive of them as quasi-authoritative guides that communicate an image of the state system—an image that informs government leaders where their jurisdiction begins and ends, over whom it exists, over what objects it has control, and during what period of time it operates (Coplin 1965, p. 617). More than representing “average” behavior in a statistical sense, international norms are shared guidelines sustained by a logic of appropriateness regarding how countries like “ours” ought to behave. They convey who can play the international political game, what the game board will look like, and which moves are acceptable (Osiander 1994, p. 11).

Measuring International Norms Acquiring reproducible evidence on international norms is difficult because norms are intangible. Like the rules of grammar in a natural language, they are a social construct that exists by collective assent and are so deeply engrained in everyday life that they are taken for granted (Bicchiere 2006). Because they are not physical entities whose attributes can be counted in a straightforward manner, as one might do when tallying the number of ships possessed by a country to determine the size of its

34

2 International Norms

navy, I take an indirect approach to measuring their properties, relying on judgmental data from expert witnesses. International norms are an expression of those opinions that are generally held throughout the state system about the propriety of specific kinds of foreign policy behavior. Insofar as international law is a medium that conveys these opinions, monitoring changes in its content is a practical way to gauge variations over time in climate of opinion regarding the use of military force. When legal norms are conceptualized as “a form of communication” stored in “treatises on international law” that delineates how states should or should not behave (Gould and Barkun 1970, p. 136), evidence on their prescriptions and proscriptions may be obtained by examining what leading legal authorities from different historical periods reported about the rules of their era. Publicists, as these authorities are commonly known, have been recording information for centuries on what legal norms held sway at the time they wrote their treatises. Notably, some of them have had their works “quoted and requoted almost as if they were oracular pronouncements” (Onuf 1982, p. 21). Although the role of publicists in lawmaking may be nominal, judicial tribunals have traditionally accepted their writings as a subsidiary means of determining prevailing legal norms (see Article 38 [1][d] of the Statute of the International Court of Justice; and Paquete Habana, Lola, 175 U.S. 677 [1900]). According to one prominent scholar, it is shortsighted to dismiss the value of publicists in legal research: “States in the presentation of their claims, national law officials in their opinions to their governments, the various international judicial and arbitral bodies in considering their decisions, and the judges of municipal courts when the need arises, all consult and quote the writings of leading judicial authorities” (Shaw 1991, pp. 92–93). As the only professional group dedicated to describing the substance of international legal norms, their narratives are a valuable information source. “If we turn to the most eminent publicists, and look for common agreement between them on some specific rule,” asserts international lawyer Ingrid Detter (1994, p. 152), “we will find considerable guidance as to the contents of international law on a specific problem.” Publicists are an “international guild whose bread and butter comes from expounding … what the law at any given moment actually is rather than what it ought to be or could have been” (Best 1994, p. 406). The “selection of topics and the extent of their coverage” in a treatise reflect their “views as to the importance of each of them … since the text is intended to present a realistic picture of what the law is” (von Glahn 1992, p. xii). Publicists have gathered an enormous body of information on international legal norms, but their observations have rarely been converted into theoretically useful quantitative data. This is baffling given that researchers have combed through other kinds of historical documents in order to measure international norms (see Nilsson 1988; Goldmann 1971). If authoritative legal treatises are a significant but overlooked information source, how might we make data from this material that could be used to gauge changes in the degree of normative support for the use of military force? One promising approach would be to content analyze what publicists said about those norms in their treatises. Thematic content analysis is a data-making procedure that may be conducted on any communication. Devised for the study of social artifacts, it

Measuring International Norms

35

has proven extremely useful in diachronic research designs for examining changes in the values and ideas of inaccessible subjects. International legal treatises are artifacts that document the commonly held expectations for state behavior that existed in their day. When these works are subjected to content analysis, publicists become expert witnesses whose descriptions may be coded to make quantitative data on the rules of state behavior contained in prevailing legal norms. The major drawback of this procedure is that content analysis only deals with what explicitly appears in a document—its manifest, outward message. It does not reveal any deeper meaning that may be implied by a particular text. Fortunately, this liability does not invalidate the limited purpose for which content analysis will be used here: namely, to extract information on generally held expectations about state behavior from a physical record of communication written for that very reason. While the memoirs of national leaders can also furnish this kind of information, they suffer from more drawbacks than legal treatises. Whereas memoirs are produced episodically and may not address the topic of international norms, treatises are systematic compendia that often go through many editions, therein providing a running historical record that offers researchers a reasonable empirical proxy for estimating the values of important but hard-to-measure normative variables. To trace changes over time in the degree of support for international norms pertaining to the use of military force, 275 legal treatises from the 1815–1999 timespan were content analyzed under the auspices of the Transnational Rules Indicators Project (TRIP).12 Obviously, not all treatises are equally important for datamaking purposes. The criteria for identifying those authoritative texts written by the most renowned publicists were whether a work had gone through multiple revised editions or had been identified as authoritative by independent scholarship (e.g., listed in the Vredespaleis Systematic Catalogue and Research Guides, the Association of Law Schools’ bibliography of international law texts, or other respected sources in the field of jurisprudence), a recognized legal body such as the International Court of Justice, or was cited in reports of Special Rapporteurs published in the Yearbook of the International Law Commission.

Classifying International Norms Another shortcoming in the literature on international norms is taxonomy. In addition to disagreeing over how to conceptualize international norms, scholars wrangle over how they should be classified.13 A common approach presumes that some norms are of primordial importance for the functioning of the state system, and differentiates between these norms and those thought to play a supporting role (Fastenrath 1993). The notion that certain norms possess a higher normativity than others frequently appears in documents concerning peremptory norms (jus cogens) and obligations that every state has toward the international community as a whole (obligatio erga omnes). A peremptory norm is defined by Article 53 of the 1969 Vienna Convention on the Law of Treaties as one “accepted and recognized by the international

36

2 International Norms

community of states as a whole as a norm from which no derogation is permitted.” The notion of obligations owed to the international community as a whole was introduced by the International Court of Justice in the 1970 Barcelona Traction Case in recognition of “a gradation in the normativity of obligations” (de Hoogh 1991, p. 184), with the Court making a distinction between the regular obligations of a state and those so important that all states have a legal interest in their protection. Once a system of jurisprudence assumes that a hierarchy exists among norms, it typically differentiates between primary and secondary norms, with the former imposing essential obligations on states and the latter detailing the consequences of failing to fulfill those obligations (see Carrillo Salcedo 1997; Wellens 1994). The main objection to these kinds of hierarchical typologies is the difficulty in establishing clear, well-ordered ranks (Mac Donald 1988, p. 143). Without delving too deeply into the controversy surrounding jus cogens and obligatio erga omnes, we can say that some international lawyers have expressed skepticism over the practical relevance of these two concepts. “The international normative system has traditionally been characterized by unity,” writes French lawyer Prosper Weil (1983, p. 423). Whatever their individual importance, “all norms are placed on the same plane, their interrelations ungoverned by any hierarchy.” For many legal scholars, the attempt “to find some primary norms, some higher rules” is a search for what is “is not there” (Fawcett 1982, p. 37; see also Higgins 1994, p. 22). Indeed, higher normativity has been ridiculed as an “international legal Yeti—everyone talks about it, the majority of authors believe in its existence, but very few have recognized it beyond a doubt” (Czapli´nski and Danilenko 1990, p. 7). In view of the problems with classification schemes predicated on different levels of normativity, I situate the norms of war investigated in this book on three nonhierarchical distinctions. The first distinction is between constitutive and regulative norms. As mentioned earlier in this chapter, constitutive norms define what counts as an activity; regulative norms guide that activity by prohibiting certain actions and enabling others. In baseball, for example, constitutive rules give meaning to activity on the field by indicating what counts as a run, an out, and an inning. Regulative rules guide play by prohibiting batting out of order, intentionally obstructing fielders, and applying a foreign substance to the ball. They also govern play by enabling runners to steal bases or tag up to advance on a fly ball caught by the defending team.14 When applied to interstate conflict, constitutive norms define what counts as war, and regulative norms explain when it is considered acceptable to resort to war and how those engaged in it ought to behave. The second distinction is between actor-universal and partner-specific norms. Whereas the former pertains to all states, the latter only bear upon a subset of that population. Among the many possible subsets are members regional political, economic, or sociocultural organizations, and countries such as the United States and the UK that claim to have a special relationship. Each of these subsets may develop unique, partner-specific norms that they observe when interacting with one another, but do not consider them to be germane when dealing with other countries.

Classifying International Norms

37

Do regulative, actor-universal norms of war auger well for peace? Many such norms exist. To narrow the scope of this study further, the third distinction that I make is between norms that govern the initiation of war and those that guide its conduct. The belief that there are right and wrong reasons for initiating war is an ancient one, and at least in the eyes of some classical jurists it is “the hinge upon which the whole system of the law of nations turns” (Arundell 1872, p. 386; see also Urquhart 1869, pp. 60–61). Even so, less empirical research has been carried out on norms that pertain to the initiation of armed conflict than has been done on norms related to its conduct.15 Given the controversy over whether or not legal norms affect state behavior, and given the shortage of data-based research on those norms that lay out when states may legitimately resort to war, my focus in the ensuing chapters will be on actor-universal norms that regulate when states can justifiably commence war (see Fig. 2.2). To that end, my emphasis will be on jus ad bellum (the criteria for engaging in war) rather than on jus in bello (the standards that apply to the behavior of warring parties).

Norms of War

Constitutive

Regulative

Partner-Specific

Actor-Universal

War Initiation

War Conduct

Fig. 2.2 The empirical focus (There are many ways to classify international legal norms that pertain to war. Among the most common distinctions are between constitutive/regulative, partnerspecific/actor-universal, and war-initiation/war-conduct norms. As displayed in the highlighted box, this book focuses on regulative, actor-universal, war-initiation norms)

38

2 International Norms

Normative Context and Foreign Policy Choice Although it is common for international relations theorists to emphasize large tectonic forces that propel countries toward amity or enmity, people make history. Political leaders, not material movements, are ultimately responsible for their state’s resort to, or abstention from, war (Horowitz et al. 2015, p. 5). A large body of social psychological research exists on how context shapes human decisions. According to these studies, individuals tend to underestimate the impact of situational factors on the behavior of others, attributing greater importance to the character or disposition of the people they observe than to the circumstances in which they operate (Gilbert and Malone 1995; Ross and Nisbett 1991; Ross 1977). Groups also dismiss situational factors when explaining the behavior of rival groups, placing more causal weight on their internal traits than on external conditions that might be responsible for how an outgroup acted (Taylor and Doria 1981). Despite the common tendency to downplay the effect of situational factors on the behavior of other individuals and groups,16 experimental research shows that context affects the choices they make. Human beings can undergo dramatic personality changes when immersed in emotively powerful settings. Social psychologist Philip Zimbardo (2007, p. 211) has found that “social situations can have more profound effects on the behavior and mental functioning of individuals, groups, and national leaders than we might believe possible.” Economist Richard Thaler and legal scholar Cass Sunstein (2009, p. 255) agree. “Seemingly small features of social situations,” they submit, “can have massive effects on people’s behavior.” Many researchers who embrace a positivist approach to analyzing global affairs have come to recognize the impact of context on international events. Certain state actions, they acknowledge, can have different implications depending on the customs of a given era. As Gary Goertz (1994, p. 26) explains, the context in which behavior occurs influences relationships between cause and effect, “just like contexts mediate between words and their meanings.” International norms are a contextual feature of world politics that frame human action. Besides providing reasons for one’s own actions, they furnish a point of reference for interpreting the actions of others, which influences the responses elicited by that behavior. The prominence of regulative, actor-universal war-initiation norms as a contextual feature of the strategic landscape is amplified by being nested within a larger normative order. An international normative order is a set of diverse, interconnected norms of varying degrees of cohesion and explicitness. Within any given normative order, we might find some tightly interlocked norms from which a foreign policymaker could derive clear guidance on the stance his or her government is expected to take on a particular matter. Elsewhere in the same normative order, we might encounter connections so loose that such derivations would provide little direction. Over the past few centuries, the international normative order has undergone uneven growth, developing strong linkages among its component rules in some issue areas but not in others.

Normative Context and Foreign Policy Choice

39

War-initiation norms are a fundamental part of the international normative order, counseling foreign policymakers on when it is legitimate to resort to war and specifying under which circumstances it is acceptable to breach restrictions on commencing warfare. In the next chapter, we will more closely examine the properties of normative orders. Notes 1.

2.

3.

4.

The value of having a specialized palliative vocabulary for communicating about potentially volatile issues is underscored by brain research that reveals how threatening language activates the amygdala, which plays a role in the way that human beings process signs of danger (Isenberg et al. 1999). Although Bull popularized the concept of a society of states among late twentieth-century students of world politics, the idea has much deeper roots (see Koskenniemi 2001, pp. 81–85; Linklater 1982, pp. 80–96; Reeves 1921, pp. 364–368). If these political entities also possess collective feelings of loyalty that transcend self-regarding, instrumental interests, they can be thought of as belonging to an international community. In contrast to members of a society, who see the collectivity as an avenue for advancing their aims, members of a community feel obligated to advance the goals of the collectivity (Tönnies 2001). As asserted by the Athenian sage Solon, in a community “any wrongs that are done to individuals are resented and redressed by the other members of the community as promptly and as vigorously as if they themselves were personal sufferers” (as cited in Wright 1959, p. 22). Although some social theorists and political activists assert that an international community exists today, contemporary international life lacks the solidarity entailed by the concept of community (see Ellis 2009). Most national leaders do not have equal and impartial concern for the world’s inhabitants. Nor do they readily engage in altruistic punishment— disciplining wrongdoers even when the offense caused them no direct harm and retribution would be costly. Instead, the interests of their state’s populations are seen as more important than the interests of people living elsewhere, which results in foreign policymakers not feeling culpably responsible for any bad consequences that follow from the political good that they did not do for others. For an early conception of the relationship between international law and international community, see Suárez (1944). Rao (2008) provides a contemporary assessment. Additional evidence pointing to an upswing in attention can be found in the coverage given to international norms by journalists. According to data generated by Chronicle, a content-analysis tool developed by Alexis Lloyd for monitoring the usage of words and phrases in New York Times reporting, international norms were rarely mentioned in newspaper articles during the first two decades following World War II. Attention increased, however, from the 1980s through the early years of the twenty-first century, rising from less than ten articles annually (0.01% of all published articles) to 42 articles appearing in the Times during 2014 (0.05% of all published articles).

40

5.

2 International Norms

To be fair, not all realists deny the impact of international rules and institutions on high politics (see, for example, Schweller and Priess 1997, pp. 9–10). As the next chapter explains, many realists recognize the role of nonperfectionist ethics in foreign policy decisions (Wolfers 1962, p. 50). US Senator John McCain (RAZ) exemplified this variant of realism when he published an op-ed on human rights in the New York Times on May 8, 2017. “I consider myself a realist,” McCain wrote. “In the real world, as lived and experienced by real people,” he continued, “it is foolish … to consider our power and wealth as encumbered by the demands of justice, morality and conscience.” 6. DePaulo (2017) argues that Trump tells significantly more lies, and far more selfserving and cruel ones, than ordinary people. Whereas less than three percent of the falsehoods told by the individuals that she studied were meant to humiliate or disparage another person, roughly half of Trump’s lies were aimed at belittling others. 7. Brooks (2019) identifies five kinds of norm entrepreneurs: (1) namers, who describe social reality in some new way; (2) confrontationists, who denounce what had formally been acceptable; (3) illuminators, who extol the rectitude of new standards; (4) conveners, who organize movements to change prevailing practices; and (5) celebrities, who use their notoriety to convince others to support norm transformation. 8. For more comprehensive discussions of these pathways, see Alder-Nissen (2014), Goodman and Jinks (2013), Miyagi (2009), de Nevers (2007), Hooghe (2005), Cardenas (2004), Cortell and Davis (1996, 2000), Boekle et al. (1999), Risse (1999), Finnemore and Sikkink (1998), Checkel (1997), Florini (1996), and Haas (1992). 9. Transgressions of prevailing norms frequently elicit strong emotional reactions, ranging from contempt to outrage. Laboratory experiments have demonstrated that subjects participating in public goods games will punish norm violators at some cost to themselves, even when they are not directly affected by the infraction (Fehr and Fischbacher 2004; Fehr and Gachter 2002). 10. Apart from the esteem theory of norms proposed by McAdams (2007), most legal scholars underestimate the impact of status, prestige, and honor on human behavior, despite evidence from European history that such considerations affect the extent to which people observe the laws of war (Merton 1993, pp. 208– 209). In a world where social cohesion is fragile, a well-defined code of rank and privilege can mitigate violence. The Iliad illustrates this point vividly in its description of Patroclus’ funeral games. Communal harmony among the prickly competitors hinges on everyone receiving their due in accordance with an etiquette of standing (Scott 1997, p. 226). Just as Homer portrays status denial as a cause of interpersonal conflict, contemporary researchers have found that it can also be a source of interstate conflict (Ward 2017; Renshon 2016). 11. Many scholars mention reputation when explaining why states conform to prevailing norms (see Dorn 1999, pp. 25–26; Chayes and Chayes 1995). However, the evidence to date suggests that the effects of reputation vary by issue (Downs and Jones 2002). A reputation for resolve—the degree to which

Normative Context and Foreign Policy Choice

12.

13.

14.

15. 16.

41

national leaders risk war to achieve their aims—appears to be more limited in its impact on the strategic calculations of other states than a reputation for honesty in diplomacy (Press 2005; Mercer 1996) or a reputation for using military force against similar states (Crescenzi 2007). Reputational effects also vary according to a leader’s time horizon, with the heads of entrenched governments assessing the value of international standing differently than those on the verge of relinquishing power (Brewster 2009). For a presentation of the epistemological principles and methodological procedures that underpin the research conducted by the Transnational Rules Indicators Project, see Kegley and Raymond (1990, pp. 76–116). Typal categories are affected by the way international norms are conceptualized (Gibbs 1965, p. 588). Lacking agreement on the definition of norms, academics bicker over which taxonomic properties are true by definition and which are variable. Consider the two approaches to conceptualizing international norms discussed earlier. If “norm” refers to modal behavior and does not include a normative standard specifying what should or should not be done, then deontic assertions are variable properties and their presence or absence can be used to distinguish between different types of norms. If, on the other hand, “norm” entails an evaluation of behavior in terms of what is obligatory, then the deontic element is a definitional property and is inappropriate for classifying different types of norms. In addition to these and many other formal rules, there also is an informal code, that includes unwritten understandings such as: “Don’t swing at the first pitch after back-to-back home runs,” “Don’t steal a base late in a game that you are winning by a decisive margin,” and “Don’t cross the pitcher’s mound when returning to the batter’s box after hitting a foul ball.” For a colorful description of the code’s stipulations, see Turbow (2010). For examples of empirical research on norms governing the conduct of hostilities, see Morrow (2007) and Legro (1997). Nisbett (2003, pp. 114–123) submits that these findings are more applicable to people raised in individualistic societies than to people from collectivistic societies. Drawing upon comparative studies of culture’s impact on cognitive processes, he concludes that people reared in collectivistic societies tend to have a more contextualized view of the world, which results in greater attention being paid to situational factors when explaining behavior.

References Ago, R. (1983). The first international communities in the Mediterranean world. The British Year Book of International Law, 53, 213–232. Alder-Nissen, R. (2014). Stigma management in international relations: Transgressive identities, norms and order in international society. International Organization, 68(1), 143–176.

42

2 International Norms

Altman, A. (2012). Tracing the earliest recorded concept of international law: The ancient near east (2500-330 BCE). Leiden: Brill. Ariely, D. (2012). The (honest) truth about dishonesty. New York: HarperCollins. Arundell, Lord of Wardour. (1872). Tradition principally with reference to mythology and the law of nations. London: Burns, Oates. Austin, J. (1995). The providence of jurisprudence determined (W. E. Rumble, Ed.). Cambridge: Cambridge University Press. (Original work published 1832) Axelrod, R. (1986). An evolutionary approach to norms. American Political Science Review, 80(4), 1095–1111. Barber, C. (2016). Unpredictability: A tenet of a strong foreign policy. Nixon Foundation. https://www.nixonfoundation.org/2016/07/unpredictability-a-tenet-of-a-strong-foreign-pol icy/. Accessed 8 May 2020. Barkun, M. (1964). International norms: An interdisciplinary approach. Background, 8(2), 121–130. Barnes, J. (2017). A genealogy of the torture taboo. Abingdon: Routledge. Bauslaugh, R. A. (1991). The concept of neutrality in classical Greece. Berkeley: University of California Press. Best, G. (1994). War and law since 1945. Oxford: Clarendon Press. Bicchiere, C. (2006). The grammar of society: The nature and dynamics of social norms. New York: Cambridge University Press. Björkdahl, A. (2002). Norms in international relations: Some conceptual and methodological reflections. Cambridge Review of International Affairs, 15(1), 9–23. Blackstock, P. W. (1970). On the moral implications of torture and exemplary assassination. Worldview, 5, 12–16. Blum, G., & Heymann, P. B. (2010). Laws, outlaws, and terrorists: Lessons from the war on terrorism. Cambridge: MIT Press. Boekle, H., Rittberger, V., & Wagner, W. (1999). Norms and foreign policy: Constructivist foreign policy theory. Tübingen: Arbeitspapiere zur Internationalen Politik und Friedensforschung, No. 34a. Bos, M. (1984). A methodology of international law. Amsterdam: North-Holland. Bower, A. (2015). Norms without the great powers: International law, nested social structures, and the ban on antipersonnel mines. International Studies Review, 17(3), 347–373. Brewster, R. (2009). Unpacking the state’s reputation. Harvard International Law Journal, 50(2), 231–269. Brooks, D. (2019, April 8). People can savage social norms, but also revive them. New York Times, p. A27. Bull, H. (1977). The anarchical society: A study of order in world politics. New York: Columbia University Press. Burr, W., & Kimball, J.P. (2015). Nixon’s nuclear specter: The secret alert of 1969, madman diplomacy, and the Vietnam war. Lawrence: University Press of Kansas. Cardenas, S. (2004). Norm collision: Explaining the effects of international human rights pressure on state behavior. International Studies Review, 6(2), 213–231. Carrillo Salcedo, J. A. (1997). Reflections on the existence of a hierarchy of norms in international law. European Journal of International Law, 8(4), 583–595. Cass, L. R. (2006). The failures of American and European climate policy: International norms, domestic politics, and unachievable commitments. Albany: SUNY Press. Chayes, A., & Chayes, A. H. (1995). The new sovereignty: Compliance with international regulatory agreements. Cambridge, MA: Harvard University Press. Checkel, J. T. (1997). International norms and domestic politics: Bridging the rationalistconstructivist divide. European Journal of International Relations, 3(4), 473–495. Cho, S. (2015). The social foundations of world trade: Norms, community, and constitution. Cambridge: Cambridge University Press. Clark, A. M. (2001). Diplomacy of conscience: Amnesty international and changing human rights norms. Princeton: Princeton University Press.

References

43

Cohen, R. (1981). International politics: The rules of the game. London: Longman. Cohen, R. (1996). On diplomacy in the ancient near east: The Amarna letters. Diplomacy and Statecraft, 7(2), 245–270. Cohen, R., & Westbrook, R. (Eds.). (2000). Amarna diplomacy: The beginnings of international relations. Baltimore: Johns Hopkins University Press. Collett, P. (1977). Rules of conduct. In P. Collett (Ed.), Social rules and social behaviour (pp. 1–27). Totowa, NJ: Rowman & Littlefield. Coplin, W. D. (1965). International law and assumptions about the state system. World Politics, 17(4), 615–634. Coplin, W. D. (1966). The functions of international law: An introduction to the role of international law in the contemporary world. Chicago: Rand McNally. Cortell, A. P., & Davis, J. W., Jr. (1996). How do institutions matter? The domestic impact of international rules and norms. International Studies Quarterly, 40(4), 451–478. Cortell, A. P., & Davis, J. W., Jr. (2000). Understanding the domestic impact of international norms: A research agenda. International Studies Review, 2(1), 65–87. Crescenzi, M. J. C. (2007). Reputation and interstate conflict. American Journal of Political Science, 51(2), 382–396. Czapli´nski, W., & Danilenko, G. M. (1990). Conflicts of norms in international law. Netherlands Yearbook of International Law, 21, 3–42. Davies, S. E., Kamradt-Scott, A., & Rushton, S. (2015). Disease diplomacy: International norms and global health security. Baltimore: Johns Hopkins Press. de Hoogh, A. J. J. (1991). The relationship between jus cogens, obligations erga omnes, and international crimes: Peremptory norms in perspective. Österreichische Zeitschrift für öffentliches Recht und Völkerrecht, 42, 183–214. de Nevers, R. (2007). Imposing international norms: Great powers and norm enforcement. International Studies Review, 9(1), 53–80. DePaulo, B. (2017, December 7). I study liars. I’ve never seen one like president Trump. Washington Post. https://www.washingtonpost.com/outlook/i-study-liars-ive-never-seen-one-likepr esident-trump/2017/12/07/4e529efe-da3f-11e7-a841-2066faf731ef_story.html?utm_term=.bb5 a0b61708b. Accessed 9 May 2020. Detter, I. (1994). The international legal order. Aldershot: Dartmouth. Dimitrov, R. (2005). Hostage to norms: States, institutions and global forest politics. Global Environmental Politics, 5(4), 1–24. Dolan, T. M. (2013). Unthinkable and tragic: The psychology of weapons taboos in war. International Organization, 67(1), 37–63. Dorn, A. W. (1999). Carrots, sticks and bombs: Securing disarmament compliance without a world police. In A. W. Dorn (Ed.), World order for a new millennium (pp. 25–34). New York: St. Martin’s Press. Downs, G., & Jones, M. (2002). Reputation, compliance, and international law. Journal of Legal Studies, 31(1), 95–114. Dunne, T. (1998). Inventing international society: A history of the English school. Houndmills: Macmillan. Duque, M. G. (2018). Recognizing international status: A relational approach. International Studies Quarterly, 62(3), 577–792. Ellis, D. C. (2009). On the possibility of ‘international community’. International Studies Review, 11(1), 1–26. Evans, G. (2019). Balancing legal norms, moral values, and international interests. Ethics & International Affairs, 33(1), 13–18. Fact Checker. (2020). Trump claims database. Washington Post. https://www.washingtonpost.com/ graphics/politics/trump-claims-database/. Accessed 10 May 2020. Fastenrath, U. (1993). Relative normativity in international law. European Journal of International Law, 4(3), 305–340. Fawcett, J. (1982). Law and power in international relations. London: Faber and Faber.

44

2 International Norms

Fehr, E., & Fischbacher, U. (2004). Third-party punishment and social norms. Evolution and Human Behavior, 25(2), 63–87. Fehr, E., & Gachter, S. (2002). Altruistic punishment in humans. Nature, 415(6868), 137–140. Fichtelberg, A. (2008). Law at the vanishing point: A philosophical analysis of international law. London: Routledge. Finnemore, M., & Sikkink, K. (1998). International norm dynamics and political change. International Organization, 52(4), 887–917. Florini, A. (1996). The evolution of international norms. International Studies Quarterly, 40(3), 363–389. Garcia, D. (2006). Small arms and security: New emerging international norms. London: Routledge. Gibbs, J. P. (1965). Norms: The problem of definition and classification. American Journal of Sociology, 70(5), 586–594. Gilbert, D. T., & Malone, P. S. (1995). The correspondence bias. Psychological Bulletin, 117(1), 21–38. Gilovich, T., Medvec, V. H., & Savitsky, K. (2000). The spotlight effect in social judgment: An egocentric bias in estimates of the salience of one’s own actions and appearance. Journal of Personality and Social Psychology, 78(2), 211–222. Goertz, G. (1994). Contexts of international politics. Cambridge: Cambridge University Press. Goertz, G., & Diehl, P. F. (1994). International norms and power politics. In F. W. Wayman & P. F. Diehl (Eds.), Reconstructing realpolitik (pp. 101–122). Ann Arbor: University of Michigan Press. Goldmann, K. (1971). International norms and war between states. Stockholm: Läromedelsförlagen. Goldstein, J. S. (1994). International relations. New York: HarperCollins. Goodenough, W. H. (1963). Cooperation in change. New York: Russell Sage. Goodman, R., & Jinks, D. (2013). Socializing states: Promoting human rights through international law. New York: Oxford University Press. Gould, W. L., & Barkun, M. (1970). International law and the social sciences. Princeton: Princeton University Press. Gowa, J., & Pratt, T. (2019). The democratic-peace debate. In A. Toje & B. N. Vik Steen (Eds.), The causes of peace: What we know now (pp. 221–247). Oslo: Norwegian Nobel Institute. Guzman, A. T. (2008). How international law works: A rational choice theory. New York: Oxford University Press. Haas, P. (1992). Introduction: Epistemic communities and international policy coordination. International Organization, 46(1), 1–13. Hein, W., & Moon, S. (2016). Informal norms in global governance: Human rights, intellectual property rights and access to medicines. New York: Routledge. Higgins, R. (1994). Problems and process: International law and how we use it. Oxford: Clarendon. Hoebel, E. A. (1954). The law of primitive man. Cambridge: Harvard University Press. Hooghe, L. (2005). Several roads lead to international norms, but few via international socialization. International Organization, 59(4), 861–898. Horowitz, M. C., Stam, A. C., & Ellis, C. M. (2015). Why leaders fight. New York: Cambridge University Press. Hyde, S. D. (2011). The pseudo democrat’s dilemma: Why election observation became an international norm. Ithaca: Cornell University Press. Isenberg, N., Silbersweig, D., Engelien, A., Emmerich, S., Malavada, K., Beattie, B., et al. (1999). Linguistic threat activates the human amygdala. Proceedings of the National Academy of Sciences, 96(18), 10456–10459. Kegley, C. W., Jr., & Raymond, G. A. (1990). When trust breaks down: Alliance norms and world politics. Columbia: University of South Carolina Press. Kelley, J. (2008). Assessing the complex evolution of norms: The rise of international election monitoring. International Organization, 62(2), 221–255.

References

45

Keohane, R. O., & Martin, L. L. (1995). The promise of institutionalist theory. International Security, 20(1), 39–51. Kim, H. J., & Sharman, J. C. (2014). Accounts and accountability: Corruption, human rights, and individual accountability norms. International Organization, 68(2), 417–448. Klotz, A. (1995). Norms in international relations: The struggle against apartheid. Ithaca: Cornell University Press. Kollman, K. (2008). The regulatory power of business norms: A call for a new research agenda. International Studies Review, 10(3), 397–419. Koskenniemi, M. (2001). The gentle civilizer of nations: The rise and fall of international law 1870–1960. Cambridge: Cambridge University Press. Kraft-Todd, G., Yoeli, E., Bhanot, S., & Rand, D. (2015). Promoting cooperation in the field. Current Opinion in Behavioral Sciences, 3, 96–101. Kratochwil, F. V. (1984a). The force of prescriptions. International Organization, 38(4), 685–708. Kratochwil, F. V. (1984b). Thrasymmachos revisited: On the relevance of norms and the study of law for international relations. Journal of International Affairs, 37(2), 343–356. Kratochwil, F. V. (1989). Rules, norms, and decisions: On the conditions of practical and legal reasoning in international relations and domestic affairs. Cambridge: Cambridge University Press. Kydd, A. H. (2005). Trust and mistrust in international relations. Princeton: Princeton University Press. Lang, A., Jr., Rengger, N., & Walker, W. (2006). The role(s) of rules: Some conceptual clarifications. International Relations, 20(3), 274–294. Lebow, R. N. (2010). Why nations fight. Cambridge: Cambridge University Press. Legro, J. W. (1997). Which norms matter? Revisiting the ‘failure’ of institutionalism. International Organization, 51(1), 31–63. Levi, W. (1976). Law and politics in international society. Beverly Hills, CA: Sage. Linde, R. (2016). The globalization of childhood: The international diffusion of norms and law against the child death penalty. New York: Oxford University Press. Linklater, A. (1982). Men and citizens in the theory of international relations. London: Palgrave Macmillan. Linklater, A., & Suganami, H. (2006). The English school in international relations: A contemporary reassessment. Cambridge: Cambridge University Press. Liverani, M. (2001). International relations in the ancient near east, 1600-1100 BC. Basingstoke: Palgrave Macmillan. Mac Donald, R. St. J. (1988). Fundamental norms in contemporary international law. The Canadian Yearbook of International Law, 25, 115–149. Macfarlane, R. (2019). Underland: A deep time journey. New York: Norton. Maine, H. S. (1861). Ancient law: Its connections with the early history of society, and its relation to modern ideas. London: J. Murray. Margolis, H. (1990). Equilibrium norms. Ethics, 100(4), 821–837. Mazanec, B. M. (2015). The evolution of cyber war: International norms for emerging-technology weapons. Lincoln: Potomac Books. McAdams, R. H. (2007). The origin, development, and regulation of norms. In E. A. Posner (Ed.), Social norms, nonlegal sanctions, and the law (pp. 101–196). Cheltenham: Edward Elgar. Mearsheimer, J. J. (1994). The false promise of international institutions. International Security, 19(3), 5–49. Mearsheimer, J. J. (2011). Why leaders lie: The truth about lying in international politics. New York: Oxford University Press. Mercer, J. (1996). Reputation and international politics. Ithaca, NY: Cornell University Press. Merton, T. (1993). Henry’s wars and Shakespeare’s laws: Perspectives on the law of war in the later middle ages. Oxford: Clarendon. Michel, J. B., Shen, Y. K., Aiden, A. P., Veres, A., Gray, M. K., Brockman, W., et al. (2011). Quantitative analysis of culture using millions of digitized books. Science, 331(6014), 176–182.

46

2 International Norms

Miller, J., Cramer, J., Volgy, T. J., Bezerra, P., Hauser, M., & Sciabarra, C. (2015). Norms, behavioral compliance, and status attribution in international politics. International Interactions, 41(5), 779– 804. Mitchell, R. B. (1994). Regime design matters: International oil pollution and treaty compliance. International Organization, 48(3), 425–458. Miyagi, Y. (2009). Foreign policy making under Koizumi: Japan’s role in the 2003 Iraq war. Foreign Policy Analysis, 5(4), 349–366. Moran, W. L. (1992). The Amarna letters. Baltimore: Johns Hopkins University Press. Morrow, J. D. (2007). When do states follow the laws of war? American Political Science Review, 101(3), 559–572. Muirhead, R., & Rosenblum, N. L. (2019). A lot of people are saying: The new conspiracism and the assault on democracy. Princeton: Princeton University Press. Müller, H. (2013). Where it all began. In H. Müller & C. Wunderlich (Eds.), Norm dynamics in multilateral arms control: Interests, conflicts, and justice (pp. 1–19). Athens: University of Georgia Press. Nadelmann, E. A. (1990). Global prohibition regimes: The evolution of norms in international society. International Organization, 44(4), 479–526. Nilsson, A. S. (1988). Political interpretations of legal norms. Cooperation and Conflict, 23(2), 163–177. Nisbett, R. E. (2003). The geography of thought. New York: Free Press. Numelin, R. (1950). The beginnings of diplomacy: A sociological study of intertribal and international relations. London: Oxford University Press. Onuf, N. G. (1982). Global law-making and legal thought. In N. G. Onuf (Ed.), Lawmaking in the global community (pp. 1–81). Durham: Carolina Academic Press. Onuf, N. G. (1989). World of our making: Rules and rule in social theory and international relations. Columbia: University of South Carolina Press. Osiander, A. (1994). The states system of Europe, 1640–1990: Peacemaking and the conditions of international stability. Oxford: Clarendon Press. Peltner, A. (2017). Competing norms and foreign policy change: Humanitarian interventions and British foreign policy. International Politics, 54(6), 745–759. Piper, D. C. (1975). Foreign policy outputs and international law. In R. L. Merritt (Ed.), Foreign policy analysis (pp. 21–28). Lexington, MA: D. C. Heath. Podany, A. H. (2010). Brotherhood of kings: How international relations shaped the ancient near east. New York: Oxford University Press. Press, D. G. (2005). Calculating credibility: How leaders assess military threats. Ithaca, NY: Cornell University Press. Price, R. (1995). A genealogy of the chemical weapons taboo. International Organization, 49(1), 73–103. Rajmaira, S., & Ward, M. D. (1990). Evolving foreign policy norms: Reciprocity in the superpower triad. International Studies Quarterly, 34(4), 457–475. Rakoczy, H., Warneken, F., & Tomasello, M. (2008). The sources of normativity: Young children’s awareness of the normative structure of games. Developmental Psychology, 44(3), 875–881. Rao, P. S. (2008). The concept of international community in international law: Theory and reality. In I. Buffard, J. Crawford, A. Pallet, & S. Wittich (Eds.), International law between universalism and fragmentation (pp. 85–105). Leiden: Martinus Nijhoff. Rathbun, B. (2012). Trust in international cooperation: Security institutions, domestic politics and American multilateralism. New York: Cambridge University Press. Ray, J. L. (1989). The abolition of slavery and the end of international war. International Organization, 43(3), 405–439. Reeves, J. S. (1921). International society and international law. American Journal of International Law, 15(3), 361–374. Renshon, J. (2016). Status deficits and war. International Organization, 70(3), 513–550.

References

47

Risse, T. (1999). International norms and domestic change: Arguing and communicative behavior in the human rights area. Politics & Society, 27(4), 529–559. Ross, C., & Zaun, N. (2014). Norms matter! The role of international norms in EU policies on asylum and immigration. European Journal of Migration Law, 16(1), 45–68. Ross, L. D. (1977). The intuitive psychologist and his shortcomings: Distortions in the attribution process. In L. Berkowitz (Ed.), Advances in experimental social psychology (pp. 173–220). New York: Academic Press. Ross, L. D., & Nisbett, R. E. (1991). The person and the situation: Perspectives of social psychology. New York: McGraw-Hill. Saltnes, J. D. (2017). Norm collision in the European Union’s external policies: The case of European Union sanctions towards Rwanda. Cooperation and Conflict, 52(4), 553–570. Sartori, A. (2005). Deterrence by diplomacy. Princeton: Princeton University Press. Savage, C. (2015). Power wars: Inside Obama’s post-9/11 Presidency. New York: Little, Brown. Schweller, R. L., & Priess, D. (1997). A tale of two realisms: Expanding the institutions debate. Mershon International Studies Review, 41(1), 1–32. Scott, W. C. (1997). The etiquette of games in Iliad 23. Greek, Roman, and Byzantine Studies, 38(3), 213–227. Shalvi, S., Eldar, O., & Bereby-Meyer, Y. (2012). Honesty requires time (and lack of justification). Psychological Science, 23(10), 1264–1270. Shannon, V. (2000). Norms are what states make of them: The political psychology of norm violation. International Studies Quarterly, 44(2), 293–316. Shannon, V., & Keller, J. W. (2007). Leadership style and international norm violation: The case of the Iraq war. Foreign Policy Analysis, 3(1), 79–104. Shaw, M. N. (1991). International law (3rd ed.). Cambridge: Cambridge University Press. Shear, M. D., Haberman, M., Confessore, N., Yourish, K., Buchanan, L., & Collins, K. (2019, November 2). How Trump reshaped the presidency in over 11,000 tweets. New York Times. https:// www.nytimes.com/interactive/2019/11/02/us/politics/trump-twitter-presidency.html. Accessed 9 May 2020. Suárez, F. (1944). Selections from three works of Francisco Suárez (Vol. 2, G. L. Williams, A. Brown, & J. Waldron, Trans.). Oxford: Clarendon. (Original work published 1612) Tannenwald, N. (2007). The nuclear taboo: The United States and the non-use of nuclear weapons since 1945. New York: Cambridge University Press. Taylor, D. M., & Doria, J. R. (1981). Self-serving and group-serving bias in attribution. Journal of Social Psychology, 113(2), 201–211. Thaler, R. H., & Sunstein, C. R. (2009). Nudge: Improving decisions about health, wealth, and happiness (revised ed.). New York: Penguin. Thomas, D. C. (2001). The Helsinki effect: International norms, human rights, and the demise of communism. Princeton: Princeton University Press. Thomson, J. E. (1990). State practices, international norms, and the decline of mercanarism. International Studies Quarterly, 34(1), 23–47. Thomson, J. E. (1993). Norms in international relations: A conceptual analysis. International Journal of Group Tensions, 23(1), 67–83. Tönnies, F. (2001). Community and civil society (J. Harris, Trans.). New York: Cambridge University Press. (Original work published 1887) Tunkin, G. I. (1974). Theory of international law (W. E. Butler, Trans.). Cambridge, MA: Harvard University Press. Turbow, J., with M. Duca. (2010). The baseball codes. New York: Anchor. Urquhart, D. (1869). Effects on the world of the restoration of canon law. London: Diplomatic Review Office. Vasquez, J. A. (1995). Why do neighbors fight? Proximity, interaction, or territoriality. Journal of Peace Research, 32(3), 277–293. Vinogradoff, P. (1920). Outlines of historical jurisprudence. London: Oxford University Press.

48

2 International Norms

von Glahn, G. (1992). Law among nations: An introduction to public international law (7th ed.). Boston: Allyn & Bacon. Walt, S. M. (2017). Things don’t end well for madmen. Foreign Policy. https://foreignpolicy.com/ 2017/08/16/things-dont-end-well-for-madmen-trump-north-korea/. Accessed 8 May 2020. Ward, S. M. (2017). Lost in translation: Social identity theory and the study of status in world politics. International Studies Quarterly, 61(4), 821–834. Weil, P. (1983). Towards relative normativity in international law? American Journal of International Law, 77(3), 413–442. Wellens, K. C. (1994). Diversity in secondary rules and the unity of international law. Netherlands Yearbook of International Law, 25, 3–37. Wendt, A. (1999). Social theory of international politics. Cambridge: Cambridge University Press. Wolfers, A. (1962). Discord and collaboration. Baltimore: Johns Hopkins University Press. Wright, Q. (1959). The strengthening of international law. Recueil Des Cours, 98, 1–295. Yarhi-Milo, K. (2018). Who fights for reputation? The psychology of leaders in International Conflict. Princeton: Princeton University Press. Zacher, M. W., & Sutton, B. A. (1996). Mutual interests, normative continuities, and regime theory: Cooperation in international transportation and communication industries. European Journal of International Relations, 2(1), 5–46. Zimbardo, P. (2007). The Lucifer effect. New York: Random House.

Chapter 3

Norms and Normative Orders

In the first book of the great Sanskrit epic the Mah¯abh¯arata, King Dhritarashtra asks Kanika, a trusted advisor, how he should respond to the growing power of the Pandavas, his foremost political rivals. Troubled by their aspirations and prowess, the jealous king wonders whether he should use force to prevent them from posing a threat in the future. The leader of a state, Kanika replied, cannot enjoy security “without tearing the vitals of his enemy.” Adversaries are like razors: “unpitying as these are sharp, hiding their intents as these are concealed in their leathern cases, striking when the opportunity cometh as these are used on proper occasions, sweeping off their foes with all allies and dependents as these shave the head or the chin without leaving a single hair.” In Kanika’s opinion, the king’s survival requires wielding force without compunction. “Thou mayest act with the greatest cruelty,” he insists. “By a sudden sally or pitched battle, by poison or by corrupting his allies, by any means in thy power, thou shouldst destroy thy foe” (Vyasa 1964, pp. 264–265).1 Kanika was a fictional character created by ancient Indian bards to exemplify historical figures who championed strong-arm tactics. Chanakya, the most renowned practitioner of power politics from this era, authored several works on statecraft and served as an advisor to Chandragupta, founder of the Mauryan Empire. In the Chanakyarajanitisastra, he reflected Kanika’s advice to Dhritarashtra when he asserted that an “enemy should be destroyed … by all means.” No ruse should be banned; no deceit excluded. Writing under the pseudonym Kautilya in the Arthashastra, he counseled subduing weak adversaries straightforwardly but destroying strong ones “by creating trust and offering a bait” (Subramanian 1980, pp. 111, 151). For early Hindu advocates of power politics, war was a natural part of interstate relations. By amassing military might and following what they called kutayuddha—the use of intrigue, treachery, and subterfuge—Chanakya and his intellectual brethren believed that political leaders would prevail over their rivals. The ancient Hindu theorists of realpolitik hold a mirror up to contemporary advocates of power politics, which enables us to reflect on questions of statecraft that are as pertinent today as they were over two millennia ago. What are the ramifications of having power politics endorsed by prevailing norms of war? Does a permissive © The Author(s) 2021 G. A. Raymond, International Norms and the Resort to War, https://doi.org/10.1007/978-3-030-54012-8_3

49

50

3 Norms and Normative Orders

climate buttress international security? Or do norms that restrict the practices of power politics promote peace? People disagree. Some scholars, pundits, and policymakers concur with Kanika’s advice; others deride it as counterproductive. To resolve this controversy, it is helpful to clarify what proponents of power politics claim about international norms and statecraft. Though presented with confidence and verve, their contentions hinge on a jumble of loose-knit aphorisms and historical analogies. In order to make sense of their thinking, we need to carefully spell out the line of reasoning that underpins what they allege about world politics. Only after the grounds, warrants, and backing for their assertions have been fully explicated, we can recast their arguments into a set of testable hypotheses and bring evidence to bear upon them. It is to this task that we now turn.

Political Realism and Realpolitik Political realism has a long, distinguished history that stretches across many cultures. Although there are several schools of realist thought, my primary focus is on the power politics or realpolitik variant of realism, whose modern expression has roots in the political philosophy of Niccolò Machiavelli.2 Realism is not monolithic. The Christian realism exemplified by Reinhold Niebuhr (1960) as well as the different structural variants of realism developed by Kenneth Waltz (1979) and John Mearsheimer (2001) may share several assumptions about the world with realpolitik, but only those realpolitikers who Michael Doyle (1997, p. 195) calls Machiavellian Fundamentalists “specify the predominance of power-oriented preferences.” Machiavellian Fundamentalists can be found within the field of jurisprudence as well as within security studies. Labeled New Realists by Jens David Ohlin (2015, pp. 12–13, 94), they “have infused their understanding of international law with a dose of realpolitik.” As they see it, “there isn’t anything especially normative about international law.” National leaders are under no independent obligation to follow legal norms when they conflict with their state’s interests. Doing so would violate their fiduciary duty to their citizens. Like realists of all stripes, those who embrace realpolitik see world politics as a ceaseless struggle for power among territorially organized states of unequal strength. Without a Leviathan presiding over the state system, the powerful take advantage of the powerless, which encourages everyone to rely on self-help and conduct foreign policy with an eye toward marshaling the wherewithal to defend his or her security interests. To survive in this anarchic environment, national leaders must be vigilant and trust in their own military might rather than in the benevolence of others. Beyond joining other realists in stressing the impact of international anarchy and the security dilemma on foreign policy, realpolitikers emphasize certain maxims to justify their claims about the value of power politics. To begin with, they assume that adversaries incessantly probe for opportunities to increase their capabilities while simultaneously looking for ways to dilute the strength of everyone else. Any unchallenged extension of an adversary’s military influence into a new geographic area

Political Realism and Realpolitik

51

is thought to produce a domino effect on contiguous countries. If these incursions not blocked, an adversary becomes progressively more difficult to defeat. National leaders, according to a central maxim of realpolitik, must counter every encroachment by their rivals, orchestrating a mix of threats and force to contain their bids for expansion, and never shying away from a vigorous response to what might seem to be a minor matter. For those who see world politics through the lens of realpolitik, it is better to fight a small war now than a big war later. Another cardinal maxim is to negotiate from a position of strength. “Negotiations without arms are like music books without instruments.” So, purportedly, declared Frederick the Great in a memorable assertion of the contention that opponents bargain in earnest when confronted with overwhelming military might. Disciples of realpolitik believe that credible demonstrations of resolve elicit accommodation from an adversary while dithering begets intransigence. Toughness and perseverance are the keys to success; forbearance and accommodation signal weakness and encourage further provocations. The only way to deal with petulant foes is to accentuate your appraisal of the stakes, buttress your position, and apply pressure to the other side. Military action is not a last resort. A corollary to negotiating from strength is rejecting appeasement. Concessions should be few, small, and never made without compensation. Easily achieved concessions encourage adversaries to press for more. From the realpolitik perspective, Great Britain and France failed to deter German aggression in the 1930s due to a series of miscalculations about Hitler. Rapacious and bellicose, his territorial ambitions were boundless. Anglo-French vacillation in the face of Hitler’s remilitarization of the Rhineland, their acquiescence to his annexation of Austria, and their efforts to placate the Nazi leader at the 1938 Munich Conference were among the many foreign policy mistakes that realpolitikers portray as leading to World War II. Had London and Paris stood firm and communicated a credible threat to punish aggression, they would have deterred German expansion. Each time that the western democracies failed to show resolve, Hitler was emboldened to make additional demands. “One sword keeps another in its sheath,” the English poet George Herbert reportedly said in a synopsis of realist sentiment. For those who embrace realpolitik, security is a function of power, and power is a function of war-making ability. Permissive normative orders, which legitimize the tactics of power politics, give national leaders wide latitude on how and when to use their military might. Not only does this help spur wavering leaders to act when they might otherwise hesitate (Madar 2017, p. 37), but, paradoxically, realists also think that it reduces the incidence of war. Peace, they assert, results as a byproduct of the compensatory actions that self-regarding states take to parry one another’s maneuvers. “If we are prepared to fight many wars, and great wars, and any wars that may come,” according to this line of thought, “we will have to fight fewer wars, and lesser wars, and perhaps no wars at all. It has always been so, and will ever be so” (Dole 1996).3 Figure 3.1 depicts the structure of the argument that supporters of realpolitik typically make on behalf of a permissive normative environment. To justify a claim (C), the assertor provides grounds (G), which specify the particular facts about the situation in question, and warrants (W), which license the inference from grounds to

52

3 Norms and Normative Orders

Backing Historical experience suggests that in the absence of a Leviathan, acquiring power and being prepared for war safeguard peace. Warrants W1: Promptly countering an adversary’s efforts to amass disproportionate power deters it from acting aggressively. W2: Negotiating with an adversary from a position of strength elicits acquiescence. W3: Appeasing an adversary encourages it to become imperious. Grounds G1: World politics is an unrelenting struggle for power among sovereign states. G2: Because no Leviathan supervises the state system, states must rely on self-help for their security.

Modality So, generally

Claim International norms should be permissive, giving leaders the latitude to use the practices of power politics.

Rebuttal Unless a particular use of military force threatens the survival of the state system. Fig. 3.1 The structure of realpolitik arguments that defend permissive international norms (Fully developed arguments in foreign policy make a claim and support it with reasons. The reasoning used to uphold a claim usually contains the following elements: grounds [facts bearing on the claim], warrants [generalizations connecting the grounds to the claim], backing [information establishing the soundness of these warrants], modalities [an indication of the strength with which warrants link the grounds to a claim], and rebuttals [which specify the conditions that would undermine the argument]. The scheme used here to portray how realpolitik arguments regarding permissive norms are structured is based on Toulmin et al. [1984])

claim. Warrants, in turn, are reinforced by backing (B), which highlights a body of experience to show that the warrant is reliable and relevant. The final elements in this train of reasoning pertain to the strength of the claim. Modalities (M) indicate the degree of certainty in the claim, and rebuttals (R) specify the circumstances under which the argument may be problematic. Applying this scheme to realpolitik arguments for permissive norms, we see that after accentuating the purported “lessons of history” about being prepared for war (B), the maxims of power politics (W1 , W2 , W3 ) are used as a license to authorize the step from factual data (G1 , G2 ) about the nature of the state system to the assertion (C) that international norms should generally (M) not restrict the latitude of national leaders to employ the tactics of power politics, unless their use endangers the very existence of the system (R). As one ardent supporter of this type of argument concludes, states court danger when they ignore the wisdom of realpolitik (Cohen 1975, p. 174).

Political Realism and Realpolitik

53

World order is often depicted by realists as resting on two pillars—shared rules of the game and military balance. Henry Kissinger (2014, p. 9), for example, says that stability requires “a set of commonly accepted rules that define the limits of permissible action and a balance of power that enforces restraint where rules break down.” Neither pillar eliminates competition, but together they moderate it by helping ensure that conflicts are over adjustments to the political framework governing international interactions rather than being challenges to the framework itself. To establish workable rules, realists of every hue believe that would-be architects of world order must work within the confines of human nature and international anarchy, not against them. For those who embrace realpolitik, this means operating within a permissive code of conduct that discourages wholly arbitrary uses of force but gives states full leeway to defend the strategic interests upon which their survival depends. As they see it, laissez-faire competition keeps everyone in check. In an environment where mutually suspicious states grow at different rates and vie over relative gains, a stable equilibrium is the dividend from the accumulated actions of each state pursuing its own selfish ends—no holds barred, save for following basic rules of prudence to reduce utterly capricious behavior. The realpolitik tactics endorsed by permissive norms give national leaders the means to compete in a milieu where lies are not lies, or murders, murders (Croce 1945, pp. 3–4), and justice, as Thrasymachus famously observed, “is nothing but the advantage of the stronger” (Plato 1956, p. 137). Even so, success is not guaranteed. Setbacks are inevitable; achievements, incomplete. Leaders holding out for the absolute good rather than the lesser evil—the perfect rather than the passable—will fail.4

The Controversy Over Realpolitik As illustrated in Fig. 3.1, disciples of power politics believe that survival in a cutthroat world requires amassing military capabilities and following a code of amoral, selfinterested behavior. Otto von Bismarck, the chief minister of mid-nineteenth-century Prussia, epitomized this creed. A country’s fate, he professed, depended on hard power and adroit statecraft, a conviction he voiced during an address to a parliamentary budget committee on September 30, 1862. “Not through speeches and majority decisions are the great questions of the day decided,” Bismarck thundered, “but through iron and blood.” A tenacious promoter of Prussian interests, Bismarck claimed to have had a single compass by which he steered the ship of state—whatever was “useful, advantageous, and right for my Fatherland” (as cited in Snyder 1967, p. 15). No leader, he believed, should subordinate state interests to personal feelings, which could lead to overplaying one’s hand (Rathbun 2018). When charting a course, Bismarck envisioned the opportunities presented by different configurations on the strategic chessboard. To capitalize on the most promising of them, he was willing to be disingenuous and, at times, ruthless.5 His genius resided in an uncanny ability to isolate opponents, soberly evaluate different maneuvers that could be used against them, and

54

3 Norms and Normative Orders

unleash Prussia’s military might at the most advantageous time and place to exploit their weakness, regardless of the moral ramifications. “One cannot play chess,” he explained, “if from the outset sixteen of the sixty-four squares are out of bounds” (as cited in Carr 1991, p. 59). In contrast to Bismarck, critics of power politics consider certain moves on the strategic chessboard inherently wrong and therefore beyond the bounds of propriety. The ancient Roman orator Marcus Tullius Cicero appreciated military might as much as Bismarck, but condemned the kinds of opportunistic gambits that characterized the Prussian leader’s foreign policy. Cicero voiced his objections through didactic stories that explicated the boundaries between admissible and inadmissible tactics. One prominent story highlighted the rectitude of Gaius Fabricius Luscinus, a military commander charged with defending Rome against King Pyrrhus of Epirus. In 280 BCE, Pyrrhus brought crack Macedonian troops into Italy, vowing to curb Rome’s growing influence over Greek colonies scattered throughout the southern half of the peninsula. Unexpectedly, a deserter from his army slipped into the Roman camp and presented Fabricius with an intriguing proposal: If given sufficient compensation, he would poison Pyrrhus, thus eliminating the threat facing Rome. Fabricius refused, retorting that victory through underhanded means would be shameful.6 Cicero believed that this incident contained a lesson in practical ethics: Perfidious tactics are dishonorable, notwithstanding the advantages they promise. “If something is dishonorable,” he explained (1991, p. 118), “it is never beneficial, not even when you acquire something that you think beneficial.” Another celebrated tale dealt with the Third Macedonian War (171–168 BCE). On the eve of battle, Roman envoys deliberately misled King Perseus of Macedon about the prospects for a negotiated settlement, anticipating that Perseus would not fortify key defensive positions if he believed that peace was imminent. Their plan worked. Roman troops won a resounding victory over Perseus. Afterward, when the envoys boasted of their guile in the Senate, senior members rebuked them for their duplicity. “Nothing deserves punishment more,” commented Cicero (1991, p. 19), than men who, “just at the time when they are most betraying trust, act in such a way that they might appear to be good men.”7 Like Cicero, many contemporary critics of realpolitik define certain moves on the strategic chessboard as intrinsically wrong. Yet they do not categorically rule out all uses of force. For example, in a May 7, 1999 letter to Robert Skidelsky, a member of the British House of Lords, the liberal Canadian politician and academic Michael Ignatieff (2000, p. 79) defended military intervention to stop flagrant human rights abuses. “There are occasions,” he insisted, “if force is not used there is no future for law.” Although force may not be absolutely wrong—something that cannot be justified under any circumstances—many opponents of power politics contend that should be restricted. In an international climate of opinion that accepts perfidy and strong-arm diplomacy as routine, they explain, these practices will foster a syndrome of foreign policy behavior that makes interstate interactions unstable and war-prone. In the first place, power-politics beliefs induce national leaders to perceive disputes in rigid zero-sum terms rather than as resolvable problems that lend themselves to compromise (Leng 2000, p. 300). In the second place, they embolden leaders to

The Controversy Over Realpolitik

55

adopt bullying tactics, which tend to elicit defiance rather than accommodation (Leng 1993, 2004). Finally, if hardline methods initially fail, the tenets of power-politics encourage leaders to acquire more armaments and allies, steps that elevate threat perception and sweep both sides into a rising conflict spiral (Senese and Vasquez 2008, p. 276). The realist rebuttal to these assertions claims that underestimating an opponent’s hostile intentions is more hazardous than overestimating them. Upright behavior can be a serious liability when dealing with a dangerous opponent. A renowned episode from ancient Chinese history provides an illustration. In 638 BCE, Duke Hsiang of Sung refused to attack an army from the rival state of Ch’u while it was crossing the Hung River, even though his forces were outnumbered and would probably be vanquished if their adversaries made it to the other side. Believing that striking the enemy when it was midstream would be dishonorable, the duke postponed military operations until the army from Ch’u forded the river. As a result, he suffered a disastrous defeat. In contrast to the magnanimity of the Duke of Sung, acolytes of power politics point out that Prince Fugai of Wu disregarded the chivalric standards of his day and defeated an enemy’s army in 506 BCE by attacking when half of its soldiers had crossed the Qingfa River. Lofty principles, realpolitikers aver, must be tempered in the crucible of circumstance.8 What seems morally wrong in the abstract may be palpably right when viewed in terms of a state’s security interests. Every state is responsible for its own survival, which followers of power politics believe countenances artful behavior whenever national security is endangered. As the nineteenthcentury German historian Heinrich von Treitschke put it: “The statesman has not the right to warm his hands by the smoking ruins of his country with the comfortable self-praise: I never told a lie” (as cited in Mügge 1915, p. 40). Since there is no Leviathan guaranteeing the territorial integrity and political independence of states, exponents of realpolitik claim we live in a bare-knuckles world. International political life is a constant struggle for advantage among states that feel vulnerable and are uncertain of one another’s intentions. Survival requires power and the untrammeled pursuit of self-interest. Forbearance is counterproductive. “Hit firstly, hit hard, and hit everywhere,” recommended British Admiral Lord Fisher (as cited in Green 2008, p. 21). When status quo powers behave this way, revisionist ambitions are held in check and the state system experiences less warfare. “You cannot afford to be a carp in a pond when there are pike about,” concluded Bismarck in a classic statement of the realpolitik belief that power makes diplomacy possible (as cited in Heinl 1966, p. 204). Critics of realpolitik vehemently disagree, retorting that the practices of power politics tend to backfire (see Cusack and Stoll 1990). From their point of view, the way contentious issues are handled affects the likelihood that quarrels will escalate to armed conflict. Rather than extinguishing simmering disagreements, employing deception, threats, and coercion raises the odds that they will boil over into deadly confrontations. Because restrictive international norms constrain these practices, opponents of Machiavellian tactics portray them as an irenic, war-inhibiting facet of

56

3 Norms and Normative Orders

world politics. “Even if you have the strength of an elephant and the claws of a lion,” wrote the Persian poet Sa’d¯ı (1994, p. 451), “peace is better than war.”

Types of International Normative Orders Advocates of realpolitik from Kautilya to Bismarck want few restrictions on state behavior, arguing that international society is more stable when prevailing norms expedite the efforts of states to counterbalance one another’s ambitions. Critics rejoin that strict limits on state action are more likely to foster peace because they circumscribe the freedom to employ deadly force. The ancient Sumerian Code of Ur-Nammu, the Hittite Code of Nesilim, the Babylonian Code of Hammurabi, and the Assyrian Code of Assura exemplify the use of restrictive legal norms to harness violent behavior. But even without a powerful central authority to impose order on society, as when Alfred, king of Wessex promulgated his code of law in late ninth-century Britain, legal norms still promote peace by proving procedures that help staunch blood feuds and spasms of private retribution (Acemoglu and Robinson 2019, pp. 167–169). Before assessing the respective claims that each side in this age-old debate preaches about the efficacy of freewheeling rules of the game, it would be beneficial to examine how different kinds of norms make up an international normative order, and to contrast those normative orders that are permissive with those that are restrictive. After all, international norms do not exist in isolation. Like the tiny dots of primary color in the pointillist paintings of Georges Seurat, they fit together in an intricate pattern, where certain norms are predicated on others. Stewart Patrick (2001, p. 159) illustrates these linkages with the example of open diplomacy. “The norm of transparency,” he explains, “presupposes a prior commitment to reciprocity and nondiscrimination.” It also requires a set of underlying values—such as candor and forthrightness—that function like the mortar holding a mosaic together. Without the cement of moral values, the pattern of normative injunctions loses its integrity. As the Romans understood, Leges sine moribus vanae (Laws without morals are in vain). Legal scholars generally refer to this amalgam of norms and values as a normative order. All international normative orders contain an inner core of constitutive norms, which are coupled with a set of regulative norms and auxiliary rules. To illustrate how they work together, Fig. 3.2 outlines the Westphalian normative order that arose after the Thirty Years’ War, which is widely credited with establishing the legal foundation for the modern state system. As shown in Fig. 3.2, an international normative order’s core contains constitutive norms that define what counts as a certain entity or activity. The values and principles underpinning the order shape these norms. No principle has been more important in shaping the international normative order that emerged after the Peace of Westphalia than state sovereignty. Nearly every modern legal doctrine promulgated since the signing of the Treaties of Münster and Osnabrück in 1648 supports and extends the

Types of International Normative Orders

57

Regulative Norms and Auxiliary Rules on

Regulative Norms and Auxiliary Rules on

State Intercourse

State Jurisdiction

Constitutive Norms of State Sovereignty

Regulative Norms and Auxiliary Rules on

Regulative Norms and Auxiliary Rules on

State Instrumentalities

State Responsibilities

Fig. 3.2 The elements of the westphalian normative order (The Westphalian normative order is composed of constitutive norms that define what counts as a sovereign nation-state and regulative norms and auxiliary rules that pertain to the intercourse, jurisdiction, instrumentalities, and responsibilities of sovereign states. War-initiation norms are located in the instrumentalities sector of the order. Their substantive content has changed over time, varying during different historical periods between permissive and restrictive)

precepts that nation-states are the primary subjects of international law, answering to no higher power except those to which they voluntarily delegate authority. Constitutive norms of sovereignty define what counts as statehood. A well-known example can be seen in the Montevideo Convention of 1933 on the Rights and Duties of States, which stipulated that a state must possess a permanent population, a welldefined territory, and a government capable of ruling its citizens and managing formal diplomatic relations with other states. Political entities that meet these criteria hold the rights of existence, independence, and equality. Under the right of continued national existence, states have the prerogative to use force in self-defense. The right of independence allows them to conduct their domestic affairs and negotiate international agreements without external interference. According to the right of legal equality, states possess the same entitlements and duties, can appeal to the same standards of conduct when defending themselves, and can expect to have these standards applied impartially whenever they consent to using a third party to settle their quarrels. By imbuing states with these rights, the Westphalian norms of sovereignty provide the basis for regulatory norms to specify what kinds of actions are prohibited, acceptable, or required. The constitutive norms of state sovereignt that emerged during the seventeenth century are supplemented by four groups of regulative norms that delineate how much latitude national leaders have when conducting their states’ foreign policies. The first group, which deals with state intercourse, provides the protocols for international communication that describe procedures for exchanging envoys and conducting diplomacy. Sovereignty is exercised over people and territory; consequently, the

58

3 Norms and Normative Orders

second group of norms delineates the range of state jurisdiction, which covers issues concerning the treatment of individuals, control over land, sea, and airspace, and the use of geographic areas over which no state exercises dominion. A third cluster of norms pertains to the instrumentalities of statecraft, which speak to the means that national leaders can legitimately employ to achieve their foreign policy goals. Finally, the last group of norms pertains to the responsibilities of statehood and enumerates reparations for harm that violations of these responsibilities may produce. As generalized standards of appropriate and inappropriate behavior, regulative norms can occasionally be vague, leaving national leaders to interpret whether or not they have deviated from their injunctions. To rein in the amount of auto-interpretation practiced by these leaders, regulative norms are supplemented by auxiliary rules that stipulate more precisely what is required in specific situations to conform to a particular norm (van Dijk 1987, pp. 14–15). Consider, for instance, the norm proscribing weapons that cause superfluous injuries and unnecessary suffering on the battlefield.9 Prohibitions on lances with barbed heads, bayonets with serrated edges, and expanding or exploding bullets are examples of auxiliary rules that explicate the operational meaning of this norm. Whereas the norm sets forth a general proposition that the methods of warfare should not needlessly aggravate the suffering of disabled soldiers, the auxiliary rules specify those weapons that are forbidden because of their inhumane effects. International normative orders are dynamic. Rather than being fixed bodies of prescriptions and proscriptions, their content fluctuates over time. Usually the changes are incremental, but sometimes they are abrupt. The substance of the Westphalian normative order has oscillated between permissive and restrictive content.10 Historical periods characterized by the former contained norms that endorsed guile and opportunism, while periods marked by the latter had norms that accentuated fidelity and discretion. Both types of order shared the twin assumptions that the international system was anarchic and that states were the primary actors on the world stage. However, as Table 3.1 shows, they differed on what else they took as given. Let us briefly explore these differences. Table 3.1 The basic tenets of permissive and restrictive normative orders Permissive normative order

Restrictive normative order

World politics is a zero-sum competition among opportunistic actors

World politics is a non-zero-sum competition among reciprocating actors

International actors have no obligations beyond their self-interests

International actors have moral obligations beyond their self-interests

State interests are realized primarily through independent action

State interests are realized primarily through joint action

Foreign policy is shaped by an inclination to maximize exclusive gains

Foreign policy is shaped by an inclination to maximize mutual gains

Foreign policymakers are guided by strategic necessities

Foreign policymakers are guided by prudential judgment

Military force is the foremost tool of statecraft Military force is a tool of last resort in statecraft

Types of International Normative Orders

59

Permissive Normative Order International normative orders with permissive content have a broad conception of what is appropriate in statecraft. A central tenet in arguments made on their behalf asserts that legal rules can never cover the complexity of world affairs. No matter how exacting a code of conduct may be, unanticipated events always arise, and foreign policy decision makers need the liberty to adjust to sudden, unforeseen developments. Their success depends on having the freedom to exploit emerging opportunities and eradicate budding threats. Because “almost the whole of the duties of states are subordinated to the right of self-preservation” (Hall 1924, p. 322; Ritter 1952, p. 153), foreign policy cannot be evaluated with the same moral criteria used to judge the behavior of people in their daily affairs. An act of statecraft is praiseworthy if it is more likely than any alternative to maximize security interests, regardless of the moral implications of the act. Only when government officials face a choice among policy options that are equally conducive to national security interests might moral considerations come into play (Oppenheim 1991, p. 92; Osgood 1953, p. 21). The case for normative permissiveness has been made by commentators from many different cultures. “The justice, virtue, and probity of the sovereign proceed quite otherwise than those of individuals,” explained the sixteenth-century theologian Pierre Charron in a representative statement of this point of view. “They have larger and freer scope on account of the great, weighty, and dangerous charge they bear” (as cited in Donaldson 1988, p. 213). When the survival of the nation is at stake, wrote the twelfth-century Islamic legal scholar Ibn Ab¯ı Randaka, the priority of justice wanes (as cited in Haslam 2002, p. 27). Government leaders have a duty to protect their countries, even if it means stooping to methods that would otherwise be deemed immoral. A leader “must be a plotter, a dissembler, wily, a cheat, a thief, rapacious, and the sort who takes advantage over his enemies in everything,” Persian king Cambyses the Elder told his son, Cyrus II (as cited in Xenophon 2001, p. 54). To survive in the fractious arena of world politics, leaders must undertake morally unpalatable but strategically imperative actions as a matter of course. “Ignoring one’s interests, squandering one’s resources in fits of altruism,” declared columnist Charles Krauthammer (1993, p. 74), “is the fastest road to national disaster.” Seasoned practitioners of realpolitik regard cagey, astucious behavior as an asset. It gives them what psychologist Robert Feldman (2009, pp. 27–56) calls a “liar’s advantage.” Most people, he explains, are cognitive misers. They are disposed to believe that others are truthful, and it takes little mental effort for them to operate under this conviction. In a world where faith in the honesty of others is commonplace, underhanded tactics are effective in duping potential targets, providing an edge for those who use them, especially when the cheating is subtle (Tuschman 2013, p. 370). Prizes, as one statesman wryly observed, are not awarded to “good boys” (Dean Acheson as cited in Kagan 2018, p. 35). Although devious stratagems may seem loathsome in light of everyday morality, various cultures have accepted them when facing a dangerous adversary. Eighteenthcentury Habsburg military strategists, for example, held that cost considerations

60

3 Norms and Normative Orders

made it preferable to defeat an enemy through cunning rather than in pitched battles (Mitchell 2018, p. 89). The warrior code of many Plains tribes indigenous to North America also praised those who used stealth and guile to overcome their opponents, believing it demonstrated martial aptitude (French 2003, pp. 161–163). Similarly, the Heiban tribe of the Nuba people of precolonial sub-Saharan Africa saw little utility in conventions that restricted battlefield initiative (Moseley 2003, p. 182). The ninja warriors of Japan’s feudal age likewise thought that it was acceptable to adopt any means—fair or foul—to defeat an enemy (French 2003, pp. 225–226). A savvy leader, concluded the ancient Chinese statesman Shang Yang (1928, p. 243), “relies on force and not on virtue.” As Sthirajeevi made clear in the Sanskrit fable Kákolùkïyam, deception and duplicity are force multipliers. When asked how to fight an enemy, the Macedonian king Antigonus II Gonatus summarized the spirit of permissive normative orders by replying: “Any way it seems useful” (as cited in O’Connell 1989, p. 64), a posture also endorsed by the Macedonian strategist Polyaenus (Mayor 2009, p. 37).

Restrictive Normative Order Staunch advocates of realpolitik contend that there are times when leaders must disregard what others consider upright behavior if they wish to defeat their foes. The success of Shaka, the early nineteenth-century Zulu king known as “the wrong doer who knows no law” (Acemoglu and Robinson 2019, pp. 83–84), illustrates their point. A ruthless commander, he rejected the traditional code of military conduct observed by tribal societies in southern Africa and methodically vanquished one neighboring chiefdom after another, using a combination of new weapons, innovative organization, and unscrupulous tactics. In the short run, ignoring customary restraints on the use of force may be advantageous for the perpetrator of unprincipled tactics, but what are the broad, long-term ramifications of such behavior? How would the dodgy opportunism countenanced by a permissive normative order affect the wider system of interacting states? The following version of a parable offered by Andrew Schmookler (1984) suggests what might occur. Imagine a remote island populated by several tribes living within reach of one another. If they choose to behave peacefully, they all enjoy security. But if one unfriendly tribe engages in unscrupulous behavior, what would be the consequences for the others? Suppose the tribe in question believes that it can enhance its security by attacking a peaceful neighboring tribe, which results in its inhabitants being exterminated and the territory seized. Shortly thereafter, another peaceful tribe is attacked, and its members are forced to serve their conqueror. Fearing they will suffer a similar fate, a third peaceful tribe leaves the island, and its former homeland becomes part of the growing empire of the aggressive tribe. By this time, the remaining peaceful tribes learn of these alarming events and, wishing to preserve their independence, adopt

Types of International Normative Orders

61

their adversary’s tactics, since they do not want to fight at a disadvantage. Survival, they conclude, requires fighting fire with fire. Ironically, defending against a shrewd, unscrupulous aggressor may require that everyone becomes more like their foe. Given the existence of one ambitious enemy and a moral climate that allows treachery, everyone else has few options—destruction, absorption, withdrawal (if physically possible), or imitation. Even if a state’s leaders abhor conniving behavior, they will feel enormous pressure to behave like the ruthless actor. Chinese history during the latter half of the Warring States period provides a striking example. After the ancient state of Qin violated numerous treaties and began forcibly annexing foreign territory, other states adopted its tactics. Yu Qing, a minister from neighboring Zhao, characterized Qin as a state populated by beasts that could never be appeased. Only ironfisted policies would allow Zhao to survive, he insisted (Yan 2011). As the example of Qin illustrates, once perfidious, power-maximizing behavior is introduced to a society of states, it can quickly diffuse. Owing to the contagious nature of power politics, critics of permissive orders support international norms that limit the discretion of foreign policy decision makers. The restrictive normative orders they favor encourage members of the state system to calibrate their behavior toward one another. Unlike in permissive environments, where the line between clever gambits and ignoble ploys is fuzzy, clear standards exist on when it is justifiable to wage war and how to fight, and expediency is not accepted as a defense for dismissing amicable modes of conflict resolution. An example of normative restrictiveness can be found in the Athenian rejection of Themistocles’ proposal to launch an unprovoked attack against the Spartan fleet at Gytheum following the Persian wars. Prevailing norms made Athenian restraint obligatory, even though it meant forgoing the chance to weaken a rival. These same norms called on the Greeks to arbitrate their disagreements, as can be seen in treaties such as the one concluded between Hierapytna and Prianosos during the third century BCE. Drawing upon many examples of this sort, Isocrates (1929, p. 19) maintained that restrictive norms were beneficial, observing that it is madness to think that injustice can be advantageous. In making this assertion, he reflected a moral theme expressed in the epic literature of his day: The Ilioupersis and the Nostoi, a pair of didactic sagas that highlight objectionable conduct in war, warned of the terrible fate that would befall anyone who behaved unjustly.11 Beyond communicating how disputes ought to be handled, restrictive normative orders stipulate how commitments should be interpreted. In contrast to permissive normative orders, restrictive orders emphasize fidelity. Commitments are irrevocable pledges. Respect for the sanctity of agreements, supporters of normative restrictiveness believe, builds a reputation for reliability, cultivates a sense of the common good, and inspires collaboration. Restrictive orders also contain norms that limit the geographic scope of competition. Rules governing jurisdiction over territory, airspace, and maritime zones diffuse potential conflict by coordinating national expectations around simple, unambiguous, and prominent lines of demarcation. Additionally, rules regarding dominion, spheres of influence, and neutrality reduce friction by removing certain regions from military contention.

62

3 Norms and Normative Orders

Finally, restrictive normative orders attempt to curb forcible reprisals. A passion for vengeance resides at the core of many people’s sense of justice, yet unrestrained retaliation has the potential to incite interminable feuds. All international normative orders contain rules that specify how injured parties can respond to deliberate mistreatment. Permissive normative cultures typically allow countermeasures that “overpay” rather than “even the score,” based on the assumption that hard-hitting punishment deters further transgressions. Restrictive orders also accept punishing the culpably guilty but set limits on who dispenses justice and what sanctions are acceptable. By and large, private parties do not undertake punitive actions within restrictive orders,12 the punishment meted out is commensurate with the gravity of the offense, and, unlike in a strict liability system, extenuating circumstances can mitigate the penalty.

The Resort to War in Permissive and Restrictive Normative Orders As summarized in Table 3.2, scholars attribute various advantages and drawbacks to permissive versus restrictive normative orders. Those who favor permissive orders play up their flexibility; those who disapprove of them complain that they breed recklessness. Those who prefer restrictive orders emphasize their steadiness; those who dislike them accentuate their rigidity. Perhaps the greatest area of disagreement is over their ramifications for armed conflict. Do either permissive or restrictive warinitiation norms lessen the incidence and seriousness of war? Finding an answer is the chief aim of this book. Occasionally, foreign policy practitioners grouse that theorizing at such a high level of abstraction has limited applicability to the problems they face. Whether prevailing norms are permissive or restrictive has little bearing on concrete, downto-earth issues. Yet even a cursory review of the deliberations by government officials on national security would show the policy relevance of questions about how much flexibility prevailing norms should give national leaders. Table 3.2 The permissive-restrictive trade-off

Permissive normative order

Restrictive normative order

Advantages

• facilitates adaptability • promotes flexibility • supports creativity

• reduces uncertainty • expedites coordination • strengthens community

Drawbacks

• encourages • forecloses options impulsivity • limits discretion • sustains orthodoxy • fosters duplicity • lowers dependability

The Resort to War in Permissive and Restrictive Normative Orders

63

Take, for example, the controversy over targeted killing—premeditated acts of lethal force employed by states to eliminate individuals involved in hostilities but are not regarded as having immunity under the Geneva Convention (Melzer 2008, pp. 3–8). Following al Qaeda’s 2001 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations grappled with defining what actions were appropriate for a nation like the United States in an asymmetric war against terrorists with global reach. General Michael V. Hayden, who directed the Central Intelligence Agency between 2006 and 2009, approached the matter in a way that resonated with many Americans. He proposed playing “aggressively—right up to the line.” Though maintaining that he would “always play in fair territory,” Hayden added “there would be chalk dust on his cleats” (as cited in Savage 2015, pp. 45–46). While colorful, Hayden’s position skirted the difficulty of pinpointing the chalk line separating fair from foul when neither peace nor a formal state of war existed. Fair play customarily meant that a state could preempt an imminent armed attack by another state, but what is a fitting response to the possibility of an unconventional strike from a nonstate actor? Is targeted killing acceptable when terrorists pose a gathering danger to the American homeland? Is it an acceptable reaction to a possible threat against American interests abroad? If the threat emanates from a country unable or unwilling to take countermeasures, is it appropriate to violate that state’s sovereignty by using special operations forces or unmanned aerial vehicles to slay suspected terrorists? What precedents would a targeted killing campaign set? What might be the long-term consequences of those precedents? As senior US officials discovered, the answers to these questions were not self-evident. Some officials gravitated toward policies that granted the president substantial latitude; others, toward policies that narrowed his leeway. Sincere, well-meaning members of the Bush and Obama administrations disagreed over the legality of targeted killing, over the threshold for its initiation, and over the boundaries governing its use. As their debate indicates, investigating the ramifications of normative permissiveness and restrictiveness is more than a purely intellectual exercise. “In any actual hostilities to which we give the name ‘war,’” observed Hedley Bull (1977, p. 179), “norms or rules, whether legal or otherwise, invariably play a part.” To understand the part that regulative, actor-universal war-initiation norms play in affecting the incidence and seriousness of war requires us to do more than marshal a few vivid anecdotes. We need to conduct rigorous tests of whether the type of international order—permissive or restrictive—affects the onset of military hostilities. This requires three preliminary steps: (1) identify those norms that are most germane to war initiation; (2) define them conceptually and operationally; and (3) measure changes over time in what they prescribe and proscribe. Only after the relevant norms have been identified, defined, and measured can we move on to examine whether there is any discernable relationship between the type of normative order and fluctuations in the onset of war. The foremost war-initiation norm in an international normative order communicates when it is legitimate to resort to war. The content of legitimacy norms ranges from permissive to restrictive. Permissive legitimacy norms give national leaders enormous freedom when employing armed force, allowing innumerable shades of

64

3 Norms and Normative Orders

offensive and defensive action. Restrictive legitimacy norms limit military action to self-defense. Although the scope of what counts as self-defense has varied over the centuries, customary international law recognizes it as the right to protect oneself and allies from aggression. The second major war-initiation norm in an international normative order appeals to necessity as a defense for breaching prevailing legitimacy norms. The defense can take different forms. Sometimes necessity is invoked to stake out an exception from the legitimacy norm; at other times, it is used to justify behavior prohibited by the legitimacy norm; and on still other occasions, it is employed to mitigate blameworthiness by excusing a violation of the legitimacy norm. Necessity norms also vary from permissive to restrictive, with the former freely admitting pleas of military exigency to defend contravening legitimacy norms and the latter imposing stringent restrictions on such pleas. The next two chapters undertake detailed examinations of legitimacy and necessity norms. After describing and operationalizing each norm, changes in their content will be traced from the post-Napoleonic period through the end of the twentieth century. This will pave the way in subsequent chapters for an examination of whether these changes affected the onset of war. Notes 1.

2.

3.

Although authorship of the Mah¯abh¯arata (Great Story of the Bharata Dynasty) is attributed to the sage Vyasa, it was not written by a single creative genius. The work grew through accretion, originating from the myths, legendary events, and moral teachings of the early Vedic period in Indian history, ultimately attaining its present form during the Gupta period. The nineteenth-century German journalist August Ludwig von Rochau coined the term “realpolitik” to refer to a clear-eyed understanding of how to navigate through the crosscurrents of power and political dominance when plotting a course of liberal reform (Bew 2016). Over the time, this meaning waned as the term gradually became conflated with cold, unsentimental power politics. Because the latter conception is so deeply entrenched in contemporary discourse, I will use realpolitik as synonymous with the tactics of power politics. For analyses of how the terms “realpolitik” and “power politics” fit within the lexicon that scholars currently use when discussing world politics, see Vasquez (1998) and Wight (1978). Perhaps the most famous expression of this venerable realist theme is Concerning Military Matters (ca. 375 CE) by the Roman general Publius Flavius Vegetius Renatus, who advised “qui desiderat pacem, praeparet bellum” (Whoever desires peace, let him prepare for war.). Aristotle foreshadowed Vegetius’ counsel in his Politics and the Byzantine Emperor Leo VI later reiterated it in the Taktika. Other versions of this adage can be found in US President Andrew Jackson’s February 22, 1836 message to Congress, US President Ronald Reagan’s campaign slogan: “Peace through Strength,” and in Donald Trump’s December 18, 2017 speech outlining his administration’s security strategy.

The Resort to War in Permissive and Restrictive Normative Orders

4.

65

Not everyone who shares the tragic sensibility expressed by most realists agrees with their policy conclusions. The political philosopher Hannah Arendt, for example, argued that accepting the “lesser evil” erodes moral judgment. The problem, she wrote, “has always been that those who choose the lesser evil forget very quickly that they chose evil” (as cited in Kulsmeyer 2009, p. 343). Raymond Aron, a realist who did not emphasize the tragic, hoped that reason would lead policymakers toward what is ethically right, even if they fell short of the perfectionist ideal (Cozette 2008, pp. 674–678). 5. According to Craig and George (1990, pp. 278–279), Bismarck was sensitive to the accusation that he lacked scruples, averring that he was not as ruthless as he could have been. Still, he admitted, “If it hadn’t been for me, there wouldn’t have been three great wars, 80,000 men would not have died, and parents, brothers, sisters, and widows would not be in mourning. But that I have had to settle with God.” 6. Fabricius exemplified the concept of fides (reliability) discussed in Chapter 1. After learning from Cineas, his envoy to the Romans, that Fabricius was poor, Pyrrhus offered him an enormous quantity of gold and silver in exchange for supporting a truce that the venerable Roman statesman Appius Claudius Caecus criticized for being favorable to the Greeks. Fabricius rejected the bribe, explaining that it would sully his reputation and cause him to live the remainder of his life in disgrace. Honor, Fabricius made clear, was more important in his culture than material wealth (Watts 2018, p. 18). 7. Although the envoys were admonished, other Romans behaved in the same manner. For example, Scipio Aemilianus (Scipio Africanus the Younger) used duplicitous negotiations as a ruse to stall the Carthaginians until he was prepared to attack, Lucius Licinius Lucullus used similar tactics against the Vaccaei, as did Julius Caesar in a ploy to quash German chieftains. 8. Some commentators also cite King Yen of Hsu as a leader who practiced benevolence and righteousness to the detriment of state security (Luard 1976, p. 174). Emperor Kangxi of the Qing Dynasty is a counterpoint to the Duke of Sung and King Yen of Hsu. Considered one of the most talented of imperial China’s leaders, he was willing to use chicanery to defeat Galdan of the Dzungar Khanate, who posed a threat to the Chinese in Central Asia (Mott 2015, p. 81). 9. See Article 23 (e) of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907; and Article 35 (2) of the 1977 Protocol I amended to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts. 10. The permissive/restrictive distinction differs from the loose/tight distinction drawn by Gelfand (2018). To be sure, individuals in loose cultures and states in permissive international orders are less constrained than their counterparts in tight cultures and restrictive orders, respectively. The reasons why they have greater decision latitude differ, however. Loose cultures tend to be unfettered because the strength of the social glue that binds people together is weak. Compared to tight cultures, they have far fewer norms. In contrast, permissive international orders are unfettered due to the content of their norms, not because

66

3 Norms and Normative Orders

of their dearth. They explicitly give states more leeway to act as they wish than do the norms in restrictive orders. 11. The Ilioupersis (Sack of Ilium) and the Nostoi (Returns) belonged to a group of six non-Homeric epic poems that recounted the story of the Trojan War. Although only fragments of these two epics survive, we know their plots and teachings through other works of ancient literature. The former, generally attributed to Arctinus of Miletus, delineated the sacrileges committed by the Greeks when they defeated Troy; the latter, attributed by some to Agias of Troezen and by others to Eumelus of Corinth, described the hardships they suffered as a result of their callous actions. 12. Private acts of retaliation have a long history. During the Middle Ages in Western Europe, a person who suffered an injustice abroad could obtain letters of marque from his sovereign to authorize reprisals against the nationals of a foreign state. Sometimes these private reprisals became a matter of public policy. In 1292, for example, an English sailor murdered a Norman in the port of Bayonne. Associates of the victim retaliated by seizing an English ship and hanging several members of the crew. After the English responded in kind, a flotilla of Norman vessels scoured the seas with the aim of hanging as many English sailors as could be found. When the English sent out a stronger fleet and offered no quarter to captured Normans, the conflict escalated to wider hostilities between the two countries (Ward 1795, pp. 295–296).

References Acemoglu, D., & Robinson, J. A. (2019). The narrow corridor: States, societies, and the fate of liberty. New York: Penguin. Bew, J. (2016). Realpolitik: A history. Oxford: Oxford University Press. Bull, H. (1977). The anarchical society: A study of order in world politics. New York: Columbia University Press. Carr, W. (1991). The origins of the wars of German unification. London: Longman. Cicero, M. T. (1991). On duties (E. Atkins, Trans.). Cambridge: Cambridge University Press. (Original work dated 44 BCE) Cohen, I. S. (1975). Realpolitik: Theory and practice. Belmont, CA: Dickenson. Cozette, M. (2008). What lies ahead? Classical realism on the future of international relations. International Studies Review, 10(4), 667–679. Craig, G. A., & George, A. L. (1990). Force and statecraft: Diplomatic problems of our time (2nd ed.). New York: Oxford University Press. Croce, B. (1945). Politics and morals (S. Castinione, Trans.). New York: Philosophical Library. Cusack, T. R., & Stoll, R. J. (1990). Exploring realpolitik: Probing international relations theory with computer simulation. Boulder, CO: Lynne Rienner. Dole, B. (1996). Presidential nomination acceptance speech. https://www.speeches-usa.com/Tra nscripts/bob_dole-1996rnc.html. Accessed 15 April 2020. Donaldson, P. S. (1988). Machiavelli and mystery of state. Cambridge: Cambridge University Press. Doyle, M. W. (1997). Ways of war and peace. New York: W. W. Norton. Feldman, R. (2009). The liar in your life. New York: Hachette.

References

67

French, S. E. (2003). The code of the warrior: Exploring warrior values past and present. Lanham, MD: Rowman & Littlefield. Gelfand, M. (2018). Rule makers, rule breakers: How tight and loose cultures wire our world. New York: Scribner. Green, L. C. (2008). The contemporary law of armed conflict (3rd ed.). Manchester: Manchester University Press. Hall, W. E. (1924). A treatise on international law. Oxford: Clarendon. Haslam, J. (2002). No virtue like necessity: Realist thought in international relations since Machiavelli. New Haven: Yale University Press. Heinl, R. D., Jr. (1966). Dictionary of military and naval quotations. Annapolis: United States Naval Institute. Ignatieff, M. (2000). Virtual war: Kosovo and beyond. New York: Metropolitan Books. Isocrates. (1929). On the peace (G. Norlin, Trans.). London: Heinemann. (Original work dated 355 BCE) Kagan, R. (2018). The jungle grows back: America and our imperiled world. New York: Alfred A. Knopf. Kissinger, H. (2014). World order. New York: Penguin Press. Krauthammer, C. (1993, May 17). How the doves became hawks. Time, p. 74. Kulsmeyer, D. (2009). Beyond tragedy: Hannah Arendt and Hans Morgenthau on responsibility, evil and political ethics. International Studies Review, 11(2), 332–351. Leng, R. J. (1993). Interstate crisis behavior, 1816–1980: Realism versus reciprocity. Cambridge: Cambridge University Press. Leng, R. J. (2000). Bargaining and learning in recurring crises: The Soviet-American, EgyptianIsraeli, and Indo-Pakistani rivalries. Ann Arbor: University of Michigan Press. Leng, R. J. (2004). Escalation: Competing perspectives and empirical evidence. International Studies Review, 6(4), 51–64. Luard, E. (1976). Types of international society. New York: Free Press. Madar, C. (2017). Rules of disengagement: How the lawyerly discourse of drone warfare misses the point. Book Forum, 23(4), 37. Mayor, A. (2009). Greek fire, poison arrows, and scorpion bombs: Biological and chemical warfare in the ancient world. London: Overlook Duckworth. Mearsheimer, J. J. (2001). The tragedy of great power politics. New York: Norton. Melzer, N. (2008). Targeted killing in international law. Oxford: Oxford University Press. Mitchell, A. W. (2018). The grand strategy of the Habsburg empire. Princeton: Princeton University Press. Moseley, A. (2003). The rules of war in Sub-Saharan Africa. In P. Robinson (Ed.), Just war in comparative perspective (pp. 167–184). Aldershot: Ashgate. Mott, C. (2015). The formless empire: A short history of diplomacy and warfare in central Asia. Yardley: Westholme. Mügge, M. A. (1915). Heinrich von Treitschke. London: T.C. and E.C. Jack. Niebuhr, R. (1960). Moral man and immoral society. New York: Simon & Schuster. O’Connell, R. L. (1989). Of arms and men: A history of war, weapons, and aggression. New York: Oxford University Press. Ohlin, J. D. (2015). The assault on international law. New York: Oxford University Press. Oppenheim, F. E. (1991). The place of morality in foreign policy. Lexington, MA: D. C. Heath. Osgood, R. E. (1953). Ideals and self-interest in America’s foreign relations. Chicago: University of Chicago Press. Patrick, S. (2001). The evolution of international norms: Choice, learning, power, and identity. In W. R. Thompson (Ed.), Evolutionary interpretations of world politics (pp. 133–174). New York: Routledge. Plato. (1956). Great dialogues (W. Rouse, Trans.). New York: Mentor, New American Library. (Original work dated ca. 380 BCE)

68

3 Norms and Normative Orders

Rathbun, B. (2018). The rarity of realpolitik: What Bismarck’s rationality reveals about international politics. International Security, 43(1), 7–55. Ritter, G. (1952). The corrupting influence of power (F. Pick, Trans.). Crowley: Church Army Press. Sa’d¯ı [Muslih al-Din]. (1994). On war. In G. Chaliand (Ed.), The art of war in world history (pp. 451–452). Berkeley: University of California Press. Savage, C. (2015). Power wars: Inside Obama’s post-9/11 presidency. New York: Little, Brown. Schmookler, A. B. (1984). The parable of the tribes: The problem of power in social evolution. Berkeley: University of California Press. Senese, P. D., & Vasquez, J. A. (2008). The steps to war: An empirical study. Princeton: Princeton University Press. Shang, Y. (1928). The book of Lord Shang (J. Duyvendak, Trans.). London: Probsthain. (Original work dated ca. 350 BCE) Snyder, L. L. (1967). The blood and iron chancellor. Princeton: Princeton University Press. Subramanian, V. K. (Ed.). (1980). Maxims of Chanakya. New Delhi: Abhinav. Toulmin, S., Rieke, R., & Janik, A. (1984). An introduction to reasoning (2nd ed.). New York: Macmillan. Tuschman, A. (2013). Our political nature: The evolutionary origins of what divides us. Amherst: Prometheus. van Dijk, P. (1987). Normative force and effectiveness of international norms. German Yearbook of International Law, 30, 9–35. Vasquez, J. A. (1998). The power of power politics: From classical realism to neotraditionalism. Cambridge: Cambridge University Press. Vyasa. (1964). Mah¯abh¯arata (P. C. Roy, Trans.). In J. Larus (Ed.), Comparative world politics: Readings in western and premodern non-western international relations (pp. 262–265). Belmont, CA: Wadsworth. (Original work dated between ca. 200 BCE and 200 CE) Waltz, K. N. (1979). Theory of international relations. Reading, MA: Addison-Wesley. Ward, R. P. (1795). An enquiry into the formation and history of the law of nations in Europe (Vol. 1). London: Butterworth. Watts, E. J. (2018). Mortal republic: How Rome fell into tyranny. New York: Basic Books. Wight, M. (1978). Power politics (H. Bull & C. Holbraad, Eds.). New York: Holmes & Meier. Yan, X. (2011). International leadership and norm evolution. Chinese Journal of International Politics, 4(3), 233–264. Xenophon. (2001). The education of Cyrus (W. Ambler, Trans.). Ithaca: Cornell University Press. (Original work dated ca. 370 BCE)

Chapter 4

Normative Constraints on the Recourse to War

During the seventh year of the Peloponnesian War, Athenian troops fortified Pylos, a rocky peninsula on the coast of Messenia roughly 45 miles west of Sparta. Fearing that the garrison would allow the Athenians to raid Laconia at will, the Spartans immediately occupied the neighboring island of Sphacteria and attacked the fortress on Pylos by land and sea. The Athenians repulsed the initial assault and were soon reinforced by a fleet of 50 ships, which routed the Spartan navy and trapped the men stationed on Sphacteria. With one-tenth of their entire army surrounded by enemy forces, Sparta’s leaders offered to end the bitter, exhausting war on terms favorable to Athens. Intoxicated by their military success, the Athenians rejected the peace offer and sent a fresh contingent of troops to assail the encircled Spartans. Facing vastly superior numbers, the Spartans on Sphacteria surrendered and were brought to Athens as prisoners of war. People throughout the Greece were shocked. Everyone expected Spartan soldiers to fight to the last man, whatever the odds. The legend of Diëneces symbolized the martial spirit widely attributed to Spartans. Prior to a suicidal battle in 480 BCE at Thermopylae, where a small Spartan infantry unit held a narrow mountain pass against a massive Persian army, Diëneces was told that the enemy’s arrows were so many that when in flight they would hide the sun. He calmly replied, “So much the better, we will fight in the shade.” Though eventually overwhelmed, the unit’s courage and discipline in the face of certain death inspired Greeks everywhere, adding to Sparta’s military mystique. “Either with it, or upon it,” Spartans were reportedly told as they marched to war: either return triumphantly with your shield, or as a fallen hero carried on your shield. Following the fiasco on Pylos, Spartan morale plummeted. Why did the operation fail? How could the interned soldiers be recovered? What calamities might lie ahead? The Spartans concluded that they had brought misfortune upon themselves by violating the Hellenic norms of warfare, which called for arbitration whenever states were at loggerheads.1 As King Archidamus of Sparta acknowledged, one should never take up arms against someone who offers to arbitrate a dispute (Thucydides 1951, pp. 49, 409). © The Author(s) 2021 G. A. Raymond, International Norms and the Resort to War, https://doi.org/10.1007/978-3-030-54012-8_4

69

70

4 Normative Constraints on the Recourse to War

The source of Spartan concern was a diplomatic agreement reached with Athens in 446 BCE. Under its terms, any disputes that might arise between the two parties were to be resolved by arbitration, not military force. Over time, Sparta’s fear of growing Athenian strength and a series of crises over what Sparta saw as high-handed Athenian behavior intensified their rivalry. When the two sides finally stood at the brink of war in 432 BCE, Athens offered to submit their quarrel to a neutral third party, as required by the agreement ratified fourteen years earlier. Sparta refused. Because the Spartans chose force over arbitration, Thucydides claims that they believed the disaster at Pylos was divine retribution for contravening the norms of war. Within classical Greek culture, there was a deep-seated moral reluctance to be seen as someone who initiated hostilities without observing the conventions of when it was legitimate to resort to war (Bederman 2001, p. 221).

Justifications for Commencing War Sparta’s disquiet following the debacle on Pylos dramatizes an age-old quandary: When can political leaders justifiably resort to war? All polities, writes historian Geoffrey Best (1994, p. 15), have conventions that specify when it is legitimate to use force. An inclination toward normative restraint, he contends, “is perceptible among enough of our species’ earlier civilizations … to regard it as essentially a normal aspiration.” Anthropologist Donald Brown (1991) concurs: Proscriptions against certain forms of violence are nearly universal among humans.2 Do these comments about intrastate relations also apply to interstate relations? Have normative restraints on violence been widespread in history’s diverse multistate systems? If so, how have they framed the issue of when it is legitimate to resort to war? In searching for answers to these timeless questions, it is helpful to distinguish between two uses of force: actions undertaken to ward off an attack (defensive action) versus actions initiated to achieve a foreign policy goal not justified by self-defense (offensive action).

Defensive Military Action Normative support for national self-defense has a long history. Cicero (1989, pp. 221– 222), arguably the first Western writer to sketch a rudimentary account of just war,3 insisted that military force was justifiable “in order to repel violence.” Whenever enemies endanger us, he asserted, “any and every method of protecting ourselves is morally right.” So, too, he added, was using force to help allies who were under siege. Early Christian theologians, most notably Ambrose of Milan, Augustine of Hippo, and Thomas Aquinas, reached similar conclusions as they worked to reconcile the prescriptions of the Sermon on the Mount with the use of force to safeguard peaceful, rightly ordered political communities.4 Their reasoning had rough parallels in the

Justifications for Commencing War

71

ancient Chinese concept of “righteous war” (yi zhan or yi bing), which was expressed by such figures as Laozi, Mencius, Mo Di, and Kun Kuang (Graff 2010, pp. 196, 198– 201), as well as in the justifications for self-defense found within classical Jewish (Ravitzky 1996, p. 117) and Islamic thought (Hashmi 1996, p. 156; Khadduri 1966, pp. 75–95).5 Defending oneself against wrongful attack has been a bedrock principle of international law since the emergence of the modern state system. It is cited in 69 percent of the war manifestos that governments have published since the late fifteenth century to justify their use of military force (Hathaway and Shapiro 2017, p. 43). Characterized by legal scholars during the seventeenth and eighteenth centuries as a “natural right” and a fundamental element of state sovereignty, self-defense authorized national leaders to fend off an attack and intercept those which were immediately forthcoming. To do so lawfully, many scholars added that acts of forcible defense should be proportionate to the danger, only target combatants, and not serve as a reprisal. In other words, self-defense involved protection, not excessive, indiscriminate, or punitive measures aimed at revenge. Over time, the parameters of self-defense expanded, allowing states to take action against the threat of a future attack rather than just intercepting a blow that was on the verge of being landed (Neff 2005, p. 329).6 Anticipatory defense, as this doctrine came to be known, let national leaders initiate preventive military actions to thwart dangers that were highly likely to overwhelm them if they delayed responding (Clark 2006, p. 199). Critics, such as the seventeenth-century English commander Thomas Fairfax, may have complained that “probabilities are not sufficient grounds to make war” (as cited in Vagts 1956, p. 272), but most people at the time saw taking preventive action to nip gathering dangers in the bud as one of the foremost responsibilities of a state’s leader. One must watch adversaries closely, Cardinal Richelieu (1961, pp. 80– 82, 96) counseled King Louis XIII of France, and “sleep like the lion, without closing one’s eyes, so that one may instantly ward off the slightest misfortune which may arise.” Following the promulgation of the UN Charter, appeals to anticipatory selfdefense became far more controversial (see Bowett 1958; Brownlie 1963). The Charter addresses self-defense in two places. First, Article 2 (4) stipulates “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” Second, Article 51 declares “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” Some people interpreted Articles 2 (4) and 51 as barring anticipatory self-defense and limiting responsive self-defense to the period after a state has been attacked and before the Security Council takes countermeasures.7 Others disagreed. Drawing on the ruling of the Permanent Court of International Justice in the 1927 Lotus case, they submitted that a state’s actions were legal unless explicitly prohibited by international law. Moreover, since Article 51 included a reference to the concept of “inherent right,” they further argued that pre-charter

72

4 Normative Constraints on the Recourse to War

customary rules were still in effect, allowing both anticipatory and responsive selfdefense to exist alongside Security Council countermeasures. Support for their view could be found in the preparatory work for the Charter (Brierly 1963, p. 417) and in the position taken by the International Court of Justice in Nicaragua v. United States of America (1986 ICJ 14). “Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-defense and it is hard to see how this can be other than of a customary nature,” reasoned the Court. Although the language of the Charter on the use of force has been read by lawyers in different ways, national leaders continue to believe that they are allowed to defend themselves when attacked and have an innate right to use lethal force in an anticipatory manner, as long as credible evidence of imminence exists, there is insufficient time for an effective nonmilitary response, and the actions taken follow the principles of legal proportionality and discrimination. Forging an international consensus on when the principles of proportionality and discrimination are met can be difficult, however. Proportionality is a vague concept in jurisprudence (Kretzmer 2013, pp. 238–240). Sometimes it implies that a victim’s response should be commensurate with the injury suffered (tit-for-tat proportionality). In other contexts, it refers to whether the expected harm of an action outweighs the benefits of achieving legitimate aims (means-ends proportionality). In still other contexts, it signifies the least amount of force needed to halt an attack and deter future aggression (dissuasion proportionality). Ambiguities also surround the concept of discrimination (Holmes 1989, pp. 184– 189). Stemming from a deep-rooted moral prohibition against knowingly killing innocent parties, most legal scholars exempt certain people from direct, intentional harm; however, due to varying levels of culpability among those who initiate (government leaders), conduct (soldiers), and contribute (industrial workers) to a war effort, they often differ over who beyond the noninvolved (infants and the infirm) belongs to the class of protected persons. To cut through this moral thicket, scholars frequently employ the categories noncombatant/combatant and civilian/military, although neither pairing is equivalent to the distinction between innocence and noninnocence, which adds to the difficulty of reaching an agreement over whether certain wartime actions were discriminating.

Offensive Military Action When appealing to international norms to justify military force, raising a shield is less problematic than wielding a sword. Whereas widespread normative support has long existed for resisting aggression, support for offensive military action has been checkered. Of the various arguments its favor, the assertion of a sovereign entitlement to national self-extension was perhaps the most prevalent reason leaders gave prior to the inauguration of the United Nations Charter. “The first concern of a prince must be self-preservation, the second aggrandizement,” declared King Frederick II of Prussia in a political testament written for his

Justifications for Commencing War

73

successors (1992, pp. 162–163). An effective prince is clever and flexible, always expressing “peaceful sentiments” while waiting for the right moment to seize the military initiative. Success requires understanding one’s geostrategic interests, formulating realizable objectives, and preparing for every contingency. When carefully planned, Frederick reckoned that an offensive war could compel even a formidable opponent to “consent to an advantageous peace” (as cited in Luvaas 1966, p. 310). In his eyes, offensive military action was a legitimate tool of statecraft, no less just than wars for self-defense.8 Policy prescriptions such as these emanate from a particular way of construing political life, one that prizes the untrammeled freedom of the sovereign state. According to this worldview, not only do states possess the right to continued national existence, which means the prerogative to use force defensively for self-preservation, they also have the right to use force to acquire what they believe is their due. By this account, armed conflict is a medium for settling disputes. As the nineteenth-century German historian Heinrich von Treitschke (1992, p. 207) proclaimed, “war is the form of litigation by which states make their claims valid.” It is trial by combat. One upshot from this conception of martial litigation was normative support for victorious powers to annex captured territory. Before Article 10 of the Covenant of the League of Nations called for the contracting parties to preserve the physical integrity of member states, international norms accepted military conquest as a legitimate means of procuring territory.9 As illustrated by the conclusions of the First and Second Silesian Wars (1740–1742, 1744–1745), formal cession agreements were often signed to transfer the title of subjugated land from the vanquished state to the conqueror. Following Prussia’s wresting of Silesia from Austria, for example, Empress Maria Theresa ceded most of the duchy to Frederick II in the 1742 Treaties of Breslau and Berlin, which were subsequently affirmed by the 1745 Treaty of Dresden. Today, this understanding of sovereign entitlement would be condemned as “a legal charter for predation” (Holsti 2004, p. 132), but offensive uses of force for national aggrandizement were considered valid under the eighteenth century’s rules of world politics. According to jus victoria (Whitman 2012, pp. 10, 41–42), warfare was a procedure for victors in decisive battles to redraw borders and claim legal rights. Not until the Assembly of the League of Nations embraced the prohibitions of the Stimson Doctrine in 1933 was this traditional right of conquest widely questioned.10 The degree of normative support given to other justifications for offensive uses of military force has also waxed and waned across time. The foremost justifications entailed some variation on the claim of promoting international order. War manifestos issued over the past five centuries mentioned enforcing treaty obligations (included in 47% of manifestos), responding to violations of the law of nations (35%), redressing disruptions in the international balance of power (33%), and protecting diplomatic relations (14%) as reasons for offensive action (Hathaway and Shapiro 2017, p. 43). Beyond the arguments in government manifestos, other historical examples of justifying force to promote international order range from ancient Hindu texts that endorsed liberating the oppressed (Morkevicius 2010, pp. 170–173), through medieval European treatises that urged punishing malefactors, to modern politicians who have advocated removing incorrigible regimes. President

74

4 Normative Constraints on the Recourse to War

Theodore Roosevelt captured the essence of this line of thought when he declared in an address to Congress on December 6, 1904, that “chronic wrongdoing” by other countries would spur the United States to “the exercise of an international police power.” Implicit in his declaration was the understanding that those at the summit of world power would judge what constituted wrongdoing. In summary, codes of conduct that stipulate when it is legitimate to resort to military force are a common feature of interstate relations. Human beings may not be innately pacifistic, but they have a proclivity to constrain organized political violence, devising guidelines specifying when force can be used. Although norms of war have been present throughout the ages, their content has varied in two important ways. First, the meaning of the concepts they use has not been constant. The concept “selfdefense,” for example, has been defined broadly during certain periods and narrowly during others. Second, the degree of normative support for their injunctions has not been uniform. Whereas support for forcible defensive has remained steady, backing for offensive military action has been uneven. Given that the normative boundaries surrounding the justifiable use of armed force are elastic, it is worth asking how they have changed over time. Has there been a discernable trend in the thrust of the norms of war? Have they become more permissive, granting discretion to national leaders on when it is legitimate to commence war? Or, conversely, have they become more restrictive, limiting when it is legitimate to initiate hostilities?

Charting Trends in War-Initiation Norms In order to map trends in the content of international norms pertaining to the commencement of war, we need a way to measure what behavior was considered legitimate within the state system at different points in time. If war-initiation norms are conceptualized as quasi-authoritative statements that communicate when it is acceptable to resort to war, then one way to obtain information on them is to examine publicly observable documents that were explicitly designed to portray the prevailing climate of opinion on military force. Publicists, as pointed out in Chapter 2, are legal authorities who author such documents. By treating them as expert observers whose role is to describe the importance attributed to various legal norms, it is possible to gauge changing attitudes toward the use of force through a content analysis and comparison of legal texts published over the past two centuries. Because legal treatises pinpoint those norms for which there was general support, these documents are a fitting source from which to make time-series data. As discussed earlier, 275 authoritative legal treatises were content analyzed under the auspices of the Transnational Rules Indicators Project (TRIP). The war-initiation norms described in those treatises varied over time between permissive and restrictive. Permissive norms are based on an instrumental conception of military force. They envision war as one of many tools that national leaders can use to promote their state’s foreign policy, much like a carpenter might use a hammer in some situations but a screwdriver in others. Just as a skilled carpenter employs many tools to

Charting Trends in War-Initiation Norms

75

complete a project, a talented leader applies multiple instruments to carry out a policy. Commencing warfare, the nineteenth-century Prussian general Carl von Clausewitz (1962, pp. 63–65, 85, 255) explained, is not “an independent thing in itself.” It is “a continuation of political intercourse with an admixture of other means.” Permissive norms provide national leaders with considerable latitude on how to use their country’s military might for foreign policy purposes. Regardless of whether the contemplated action is defensive or offensive, they give leaders relatively free rein to act in the perceived security interests of their states. In their strongest form, permissive norms countenance unfettered self-help. “We can never introduce a modifying principle into the philosophy of war without committing an absurdity,” insisted Clausewitz. However, a less extreme conception also exists, which rejects using offensive action for self-aggrandizement and territorial gain but allows it for policing volatile regions and changing the regimes of so-called rogue or outlaw states.11 In contrast to the wide compass for the use of lethal force granted by permissive norms, restrictive norms limit military action to self-defense. But because different definitions of self-defense have come in and out of favor, the limitations expressed by restrictive norms can vary from one historical period to the next (Schachter 1989, pp. 271–272). The strictest limitations are based on a definition that confines selfdefense to repelling attacks on a state’s population or territory. Weaker limitations allow anticipatory action and expand the national “self” beyond lives and land. According to this understanding of the concept, an attack on a country’s core values or interests abroad would justify a protective response (Rubenstein 2010, pp. 30–31, 38–39). Sergei Kovalev (1968, p. 4) illustrated this interpretation in his justification of the 1968 Soviet-led military intervention into Czechoslovakia. Amplifying an argument made to the UN Security Council by Soviet Ambassador Jacob Malik, he asserted that the “weakening of any links in the world socialist system directly affects all socialist countries.” Faced with the “danger of anti-socialist degeneration” in Czechoslovakia under the political and economic policies of Alexander Dubˇcek, the Soviet Union and other Warsaw Pact members undertook “the task of defending the socialist gains in that country.” Military force, Kovalev proclaimed, was not used offensively to interfere in Czechoslovakia’s internal affairs; rather, it was employed defensively to protect “the interests of the whole of world socialism.” Since both permissive and restrictive norms have strong and weak variants, I created a four-point scale to measure how legal norms at different points in time specified the conditions under which it would be legitimate to resort to war. When the author of a legal treatise in the TRIP database discerned that a permissive norm was operating within the state system at the time he or she was writing, the observation received a score of 1.00 if war was conceived as a political instrument that leaders could use unreservedly, and a score of 2.00 if leaders could only use it for purposes other than territorial acquisition. When the author detected a restrictive norm that barred offensive uses of war, the observation was coded 3.00 if protecting a state’s population, territory, core values, and geopolitical interests with responsive and anticipatory self-defense was accepted, and 4.00 if nothing but protecting the homeland with responsive self-defense was allowed.

76

4 Normative Constraints on the Recourse to War

After completing the coding, I calculated the mean score for the treatises written during each successive five-year interval between 1815 and 1999 in order to create an index that measured the restrictiveness of prevailing norms. The mean possesses statistical properties that make it an attractive way of aggregating the data by halfdecade: (1) The sum of the squared deviations about the mean is smaller than those around any other value; (2) it is sensitive to the change in any score within the sample; (3) it varies less than other measures of central tendency from one sample to another; and (4) it allows measurement at the interval level. By computing a series of quinquennial mean scores, I constructed a longitudinal index that ranged from strongly permissive norms (1.00) to strongly restrictive norms (4.00), with intermediate scores representing weaker variants of permissiveness and restrictiveness, respectively. The higher the score on the index, the more restrictive were international legal norms regarding when it was legitimate to resort to war; the lower the score, the more permissive were prevailing norms on using war as an instrument of foreign policy.

The Evolution of Norms Regulating the Resort to War Figure 4.1 shows a plot of the legitimacy index during the nineteenth and twentieth centuries. Looking first at the entire time span, we can see a trend toward greater restrictiveness regarding the conditions under which the resort to war was accepted 4.00

LegiƟmacy Index

3.50

3.00

2.50

2.00

1.50

1.00 1820

1840

1860

1880

1900

1920

1940

1960

1980

2000

Fig. 4.1 Normative support for a restrictive conception of when it is legitimate to resort to war (International norms that communicated to members of the state system when it was legitimate to resort to war became more restrictive over the course of the nineteenth and twentieth centuries. The overall trend was punctuated by several periods of normative permissiveness, with the norms in each of these successive interludes espousing less permissive positions. Note Ten-year moving average with linear trend line)

The Evolution of Norms Regulating the Resort to War

77

as legitimate. During the nineteenth century, military force was condoned as a tool of statecraft, with most people regarding war “in much the same way they regarded a hard winter—uncomfortable, certainly, but part of the settled order of things” (Akehurst 1987, p. 258).12 “War is life itself,” explained the French novelist Émile Zola (as cited in Joll 1984, p. 186). “Nothing exists in nature, is born, grows or multiplies except by combat.” These beliefs began changing in the latter part of the twentieth century. War remained legal when used for self-defense or to enforce UN resolutions, but peace was now seen as the normal state of affairs. Moving next to the fluctuations around the overall trend, we see periodic surges toward restrictiveness followed by returns to permissiveness, with the peak of each successive surge being higher than the previous one, and the trough of each return being progressively shallower. The first major turning point away from the trend toward restrictiveness occurred during a period shaken by the revolutions of 1848. A mood of philosophical realism dominated the era, which encouraged calls for stripping away illusions and accepting life as it was depicted in the paintings of Courbet and Millet or in the novels of Dickens and Gogol. When combined with the political upheavals of the day, this climate of opinion elevated the concept of national interest above the ideal of a common European interest, which had underpinned the post-Napoleonic system of great-power consultation known as the Concert of Europe. In this new climate, national leaders began wondering whether they had been more accommodating in recent disputes than their peers, and whether they had foolishly waived individual advantage while others maneuvered for position. Instead of embracing the self-restraint and collective spirit of the Concert, many leaders reverted to an amoral, instrumental conception of military force. By the end of the Crimean War in 1856, the Concert was in disarray and prevailing norms embraced a permissive conception of when it was legitimate to resort to war. The next major turning point away from restrictiveness came at the end of the nineteenth century, ironically following what military historians often refer to as a golden age of restraints on war. Concern over the plight of soldiers at Solferino during the Franco-Austrian War of 1859, which led to the Geneva Red Cross Conferences of 1864 and 1868, the promulgation of the 1863 Lieber Code on the principles of land warfare, and the convening of the 1868 St. Petersburg Conference to regulate weapons that aggravated suffering on the battlefield ushered in notable constraints on armed conflict. Yet, despite these efforts to codify international humanitarian law, international norms became more permissive at the end of the century. World War I profoundly altered how people evaluated military force as an instrument of statecraft. Not only had the war involved more participants over a wider geographic area than any previous war, but modern science and technology made it a war of machinery. Old weapons were improved and produced in great quantities, new and far deadlier weapons were rapidly developed and deployed. By the time the carnage was over, nearly 20 million people had died, several empires had crumbled, and a generation of Europeans were disillusioned with foreign policies grounded in political realism. Not surprisingly, support for restrictions on the recourse to war rebounded.

78

4 Normative Constraints on the Recourse to War

Two developments exemplified this normative change. First, efforts were made to limit when commencing war would be legitimate. “We want not ‘laws of war’ but ‘laws against war’ as we have laws against murder and burglary,” demanded Salmon Levinson (as cited in Russell 1936, p. 359), a leader in the outlawry-of-war movement that arose in during the waning months of World War I. Banning war appealed to pacifists as well as to isolationists such as US Senator William E. Borah (R-ID).13 It also attracted Columbia University Professor James T. Shotwell (1929), who urged French Foreign Minister Aristide Briand to support the movement. In a speech given on the tenth anniversary of the American entry into World War I, Briand raised the possibility of a bilateral treaty with the United States that disavowed the use of war in relations between the two countries. After some delay, US Secretary of State Frank Kellogg offered a counterproposal: All nations should be invited to join France and the United States in a multilateral treaty renouncing war as an instrument of national policy. On August 27, 1928, representatives from 15 states met in Paris to sign the General Treaty for the Renunciation of War, which became popularly known as the Kellogg-Briand Pact. Eventually, 63 states became signatories to the treaty, which did not contain any provisions for termination and thus was considered by many legal scholars of the day to be binding in perpetuity. The second development was the establishment of peaceful-settlement mechanisms to reduce the occasions for contemplating war. Under Article 12 of the League of Nations Covenant, justiciable disputes were to be submitted to arbitration or to the newly created Permanent Court of International Justice (PCIJ) while non-justiciable disputes would be submitted to the League Council.14 The distinction between justiciable and non-justiciable disputes was controversial.15 The former entailed cases of secondary importance typically involving the clarification of a legal right, the interpretation of a treaty, or questions surrounding the alleged breach of a promissory obligation, for which the disputants accepted international law as the basis for reaching a settlement through binding arbitration or adjudication. The latter involved cases that affected a state’s vital interests and thus were handled by political processes ranging from bilateral negotiation to nonbinding third-party techniques such as good offices and mediation. Notwithstanding the controversy surrounding the justiciable/nonjusticiable distinction, many postwar treaties contained provisions that paralleled the formula described in the League Covenant, with commissions of conciliation often substituting for the League Council in non-justiciable disputes (Habicht 1931, p. 985). The last major shift away from restrictiveness occurred during the initial phase of the Cold War. On February 9, 1946, Soviet leader Joseph Stalin delivered a speech in which he stressed the inevitability of conflict with capitalist countries. Shortly thereafter, George F. Kennan, then a diplomat working in the American embassy Moscow, sent his famous “long telegram” to Washington, arguing that the Soviet leadership believed peaceful coexistence with the West was pipedream. The next month, former British Prime Minister Winston Churchill declared that an “iron curtain” had descended across Europe, and in a series of cables to London, Frank Roberts, the British chargé d’ affaires in Moscow, warned of the dangers posed by the Soviet Union’s expansionist ambitions and its willingness to use every possible means to

The Evolution of Norms Regulating the Resort to War

79

achieve them. In late September, Nikolai Novikov, the Soviet Ambassador to the United States, authored the mirror image of the Kennan and Roberts communiqués, alerting Foreign Minister Vyacheslav Molotov to what he believed was an American quest for world supremacy. A seemingly endless series of crises soon followed. They included the 1948 communist coup in Czechoslovakia, the Soviet blockade of West Berlin in June of that year, the communist acquisition of power on the Chinese mainland in 1949, the outbreak of the Korean War in 1950, and various other conflicts, with Taiwan, Egypt, Hungary, and several Latin American countries becoming flashpoints. In this climate of global confrontation, the international normative order reflected a more permissive attitude toward the legitimacy of war. However, international norms shifted when policymakers in Washington and Moscow found themselves mired in a nuclear standoff over the surreptitious placement of Soviet missiles in Cuba during October 1962. The experience expanded worldwide awareness of the suicidal consequences of thermonuclear conflict and transformed the way that the superpowers would henceforth calculate the wages of war. In his June 10, 1963, commencement address at American University, US President John F. Kennedy reflected on the perils of mutual suspicion and unrestrained rivalry in an age of fearsome military technology. “Should total war ever break out again,” he cautioned, “all we have built, all we have worked for, would be destroyed in the first 24 hours.” Norms pertaining to the legitimacy of war swung in a restrictive direction following the Cuban missile crisis and steadily climbed throughout the remainder of the Cold War. With that shift came a momentous transformation in the legal outlook on war. Previously, limits on armed conflict were crafted with an emphasis on the sovereign rights of belligerents. Now, they concentrated on the duties of belligerents toward the victims of war. The result was a contraction in the justifications for resorting to war that were accepted as legitimate and an expansion in the attention devoted to protecting civilians, wounded combatants, and prisoners of war. Forthwith, regardless of the rationale for launching a war, its prosecution gave rise to legal consequences of a humanitarian nature for the warring parties (Neff 2005, pp. 316, 340–343). Another noteworthy change was the emphasis given to procedural matters. States contemplating the resort to war now were expected to acquire authorization from the United Nations or other relevant regional organizations prior to availing themselves of the option to use deadly force against an adversary. Notwithstanding these developments, hints of a more permissive conception of the legitimacy norm began to reappear as the century drew to a close. Beyond condemning regimes that abused their citizens, a growing number of scholars, journalists, and activists proposed that state sovereignty was not sacrosanct. As they saw it, brazenly oppressive regimes forfeited the legal safeguard provided by the Westphalian principle of nonintervention. Although Article 2 (7) of the UN Charter proclaimed that “nothing should authorize intervention in matters essentially within the domestic jurisdiction of any state,” these commentators believed that using military force to stop egregious violations of human rights was a moral imperative. States had a responsibility to protect their populations. If they were unable or unwilling

80

4 Normative Constraints on the Recourse to War

to do so, foreign intervention was warranted.16 As Michael Barnett (2011, p. 32) observed, “Humanitarian intervention, once dismissed as illegitimate, was now in play” as states co-opted humanitarianism for their strategic interests. The speeches delivered by US Ambassadors Thomas Pickering to the United Nations Security Council on December 20, 1989, and by Ambassador Luigi Einaudi to the Organization of American States two days later, which justified American military intervention into Panama to overthrow the regime of General Manuel Noriega, foreshadowed this line of reasoning. The explanations offered by NATO SecretaryGeneral Javier Solana, British Prime Minister Tony Blair, and US President Bill Clinton for employing force in 1999 against Yugoslav leader Slobodan Miloševi´c developed it further.17 To them, certain human rights had achieved jus cogens status, overriding customary restrictions on armed intervention (Hopgood 2013, pp. 7, 136). Indeed, some people went so far as to intimate that the moral ends of a war gave policymakers greater license in the methods of war fighting (Wedgwood 2002). Despite this contention, a strongly restrictive conception of war’s legitimacy continued to characterize the international normative order as the new century began. In the opinion of Steven Pinker (2018, p. 163), the post-World War II consensus on the illegality of non-defensive war represented the single biggest transformation that had ever occurred in the substance of the modern world order.

Are There Exceptions to Norms Governing War’s Legitimacy? Norms are as old as human society. Regardless of where or when societies have arisen, people have developed rules for behavior that shaped their expectations of others as well as their expectations of what they thought others demanded of them. From the rituals governing pickup basketball games in city parks (see Eger 2012) to the traditions surrounding milestone events such as birth, marriage, and death, shared expectations about proper behavior structure group life and guide social interaction. The norms of war guide international interaction by spelling out “what is worth fighting for, whom to fight, and how those fights should take place” (Fettweis 2010, p. 22). Their injunctions are not fixed, however. During some historical periods, legal norms are relatively permissive on using war as an instrument of statecraft; during others, they are more restrictive. The greater their permissiveness, the greater the range of acceptable justifications for initiating hostilities. Conversely, the more restrictive they become, the fewer the justifications that are accepted within the society of states. As we have seen in the previous chapter, supporters of realpolitik question limitations on when it is legitimate for states to initiate war, demanding freedom for states to pursue their interests unencumbered by restraints, as long as do not unleash the dogs of war arbitrarily. Ever since Callicles expressed distaste in Plato’s Gorgias (ca. 380 BCE) for what he saw as the penchant of the weak to constrain the strong

Are There Exceptions to Norms Governing War’s Legitimacy?

81

with laws, apologists of power politics have professed that the aphorism “might makes right” describes a fundamental pattern in political life. Rather than being inherently wicked for exercising their nation’s strength, realpolitikers aver that political leaders are simply acting naturally. Everyone “has the sovereign right to do all he can,” explained the seventeenth-century Dutch philosopher Baruch de Spinoza (1891, p. 200), because “the rights of the individual extend to the utmost limits of his power” (see also Fromkin 1981, pp. 19, 81). Unlike champions of power politics, those espousing the virtues of restrictive normative orders call for limits on the recourse to armed force in world affairs. Although the 1928 General Treaty for the Renunciation of War has been touted as the impetus behind a cascade of events that led to a less permissive normative order (Hathaway and Shapiro 2017), the restrictive tide had been rising for decades. Beginning with the Congress of Vienna and extending to the advent of the post-Cold War world, a trend toward greater normative restrictiveness on when it is legitimate to initiate war has marked world politics. To say that international norms have reduced the occasions when states can legitimately resort to deadly force is not to assert that there are no exceptions to their restrictions. Most political leaders presume that extenuating circumstances such as national emergencies allow them to adopt a permissive interpretation of what they can do in foreign affairs. More to the point, they believe that strategic necessities assuage state responsibility by granting an exemption to legitimacy norms in certain situations, by justifying something that usually is considered a wrongful act or by excusing a leader from blame after he or she committed an offense. When does the international normative order accept necessity as an exemption, as a justification, or as an excuse? It is to these questions that we shall turn in the next chapter. Notes 1.

2.

3.

Arbitrations became common during the seventh century BCE, when they spread from Greek city-states on the Balkan Peninsula to their colonies scattered throughout the western coast of Asia Minor and islands in the Aegean and Ionian Seas. They were carried out among allies and, to a lesser extent, between members of opposing military leagues. Arbiters usually were selected from the citizens of a neutral state, but, at times, the Delphic oracle and league assemblies served as intermediaries. The primary aim of these ancient arbitrations was to reconcile disputants and only secondarily to achieve an exacting technical solution to the immediate issue (Ager 1996; Tod 1913; Raeder 1912). Although virtually all polities have conventions that stipulate when and how to use force, occasionally these constraints have been abandoned. Sagan (2017) employs the testimony and drawings of Red Horse, a Minneconjou Lakota chief who fought against the US Seventh Cavalry in the 1876 Battle of the Little Bighorn, to describe military conflicts waged without rules and to underscore why most societies develop rules that restrict merciless vengeance. Scholars disagree over when ad hoc theorizing crystallized into a clear, coherent just-war doctrine. Teichman (1986) says it happened between the ninth and

82

4.

5.

6.

7.

8.

4 Normative Constraints on the Recourse to War

thirteenth centuries. Johnson (1975) points to the sixteenth century. Regardless of when it occurred, self-defense has been associated with various strains of just-war thinking from antiquity onward. For a discussion of the role of selfdefense in ethical thought about just uses of force short of war (jus ad vim), see Brunstetter and Brown (2013). Because the Sermon on the Mount called upon Christians to “not resist one who is evil” and “love your enemies” (Matthew 5: 39, 44), Tertullian, Origen, and other ecclesiastical authors writing before the First Council of Nicaea in 325 CE prohibited Christians from participating in war. Additional support for pacifism came from the Pauline teachings to “repay no one evil for evil” and “overcome evil with good” (Romans 12: 17, 21). In the eyes of the early Church, violence against others was intrinsically wrong. For an analysis of how late Roman and medieval Christian thinking grew to accept self-defense as a just cause for war, see Hensel (2010). Many of the justifications of self-defense in antiquity pertain to criminal acts committed by one individual against another. Some people believe that it is reasonable to apply moral and legal injunctions concerning interpersonal behavior to national security decisions. In 2001, Israeli Foreign Minister Shimon Peres cited a Talmudic injunction (“If someone comes to kill you, rise and kill him first”) to defend his government’s policy of targeting suspected terrorist leaders. Others question such lines of reasoning. Rodin (2003), for example, argues that attempts to model rules of international conduct on domestic law are misconceived. There is no valid analogy, he submits, between personal rights of self-defense and national defense. Various scholars have commented on the indeterminacy of the international legal concept of self-defense. Many of them warn that national leaders tend to interpret self-defense in a manner that conforms with their state’s interests, and how expanding the breadth of self-defense erodes constraints on the unilateral recourse to force (Warren and Bode 2014, pp. 21, 144; Green 2009, p. 143). Rubenstein (2010, pp. 30–59), for example, describes the ways that some American leaders have attempted to widen the definition of self-defense, noting that beyond safeguarding US territory and its population, at times self-defense has been equated with protecting America’s political principles and position abroad. According to the UN Charter, the Security Council may investigate (Article 34) and make nonbinding recommendations (Article 36) at any stage of a dispute. If the Council determines that a threat to peace exists, it has the options of calling upon the parties to settle their dispute through pacific means (Article 33), applying countermeasures that do not involve the use of force (Article 41) or, if this proves inadequate, taking forcible actions (Article 42). The contention that powerful states regularly implement policies aimed at selfaggrandizement did not originate with Frederick II of Prussia. Perhaps the earliest was Shang Yang, an advisor to the king of Qin during the fourth century BCE, who observed that “states with ten thousand chariots inevitably choose to conquer, and … states with only one thousand chariots defend” (as cited in Tang 2008, p. 455).

Are There Exceptions to Norms Governing War’s Legitimacy?

9.

10.

11.

12.

13.

14.

83

Inspired by the Spanish theologian Francisco de Vitoria (1917), some writers anticipated the position staked out in the League Covenant by questioning whether conquest provided a legal basis for annexing territory, even if there had been a just cause for the war. “Arms, of themselves, give no title,” argued the Abbé de Mably, a respected eighteenth-century French intellectual (as cited in Woolsey, 1872, p. 88). Legal scholars such as Bonfils (1905), Despagnet (1910), and Fiore (1918) made similar arguments. For a comparison to ancient Hindu norms of territorial conquest, see Sengupta (1925, pp. 12–15). Enunciated by US Secretary of State Henry L. Stimson in response to the 1931 Manchurian crisis, the doctrine’s refusal to recognize territorial acquisition based on conquest was grounded in the legal maxim ex injuria jus non oritur (law should not arise from injustice). Advocates of a right of conquest occasionally cite the rival maxim ex factis jus oritur (law arises from the facts), arguing that an established factual situation, such as durable control over contested territory, acquires normative force. Holsti (2004, p. 163) has responded to those invoking this maxim by charging that no argument in international law so blatantly proposes that that right derives from might. In a speech delivered to the Council of Foreign Relations on September 30, 1997, US Secretary of State Madeleine Albright proposed that rogue states were a unique type of international actor. Aggressive, defiant, and contemptuous of global accords, she claimed that they posed a serious threat to world stability. Throughout the immediate post-Cold War era, American officials emphasized the dangers of these alleged renegades, despite criticism that their classification as a distinct type of actor was imprecise, subjective, and ideological (Miles 2013; Litwak 2000). Traces of this attitude appear throughout recorded history and were apparent at the beginning of the modern state system (Clark 1958, p. 6). Nonetheless, some societies have not experienced warfare and presumably would not share the belief that war was part of the human condition (Ember 1978, p. 443). Some scholars believe that Senator Borah supported the outlawry movement for partisan reasons, not because of a deep faith in its principles (Vinson 1957). The debate between Walter Lippmann (1923) and John Dewey (1923a, b) captures the controversy that swirled around those principles during the years immediately following World War I. The inaugural public meeting of the Permanent Court of International Justice occurred on February 15, 1922. It was hailed by Bernard C. J. Loder, its first president, as the harbinger of a new era in the effort to eradicate war. Heretofore, almost all international courts were makeshift tribunals, such as the one instituted in 1474 by members of the Hanseatic League to deal with war crimes committed in the town of Breisach. The medieval papal court, which acted both as a court of first instance and as an appellate court with jurisdiction unrestricted as to issue, person, or territory (Ullmann 1971, p. 357), and the Central American Court of Justice, which was established in 1907 and operated until 1918, were rare examples of standing international courts that preceded the PCIJ.

84

4 Normative Constraints on the Recourse to War

15. The controversy predated the establishment of the Permanent Court of International Justice. For a discussion of nineteenth-century legal scholars who contributed to the debate over the justiciable/non-justiciable distinction, see Mérignhac (1895, p. 184). 16. At the September 2005 UN World Summit in New York, the assembled heads of state unanimously agreed that national leaders had a responsibility to protect citizens—their own as well as those of other states—from genocide, war crimes, ethnic cleansing, and crimes against humanity, and that they should take appropriate action when others fail to stop these crimes. Critics worried that the “Responsibility to Protect” (R2P) principle would provide a justification for powerful, disingenuous states to infringe on the domestic affairs of the weak under the guise of holding reprobates accountable for criminal behavior. Supporters responded by situating the resort to military force on a continuum of measures, emphasizing that it was only one of many possible actions that could be taken to deal with human rights abuses. All the same, they never fully resolved the question of precisely when armed force would be the right option. 17. Similar arguments were made by pundits who called for international military action in 2011 against the government of Libyan leader Muammar al-Qaddafi, and in 2012 against the government of Syrian leader Bashar al-Assad. Some commentators have extended the argument to instances where callous governments impede emergency relief efforts following natural disasters. When, for example, the government of Myanmar rebuffed attempts by UN SecretaryGeneral Ban Ki-moon in 2008 to assist the survivors of Cyclone Nargis, Diego Lopez Garrido, Spain’s secretary of state for European affairs, complained that the regime’s obstructionism was similar to a crime against humanity. French Foreign Minister Bernard Kouchner and British Foreign Secretary David Miliband added that international aid might have to be imposed on the country under the doctrine of Responsibility to Protect.

References Ager, S. (1996). Interstate arbitration in the Greek world, 337–90 BC. Berkeley: University of California Press. Akehurst, M. (1987). A modern introduction to international law (6th ed.). London: Unwin Hyman. Barnett, M. (2011). Empire of humanity: A history of humanitarianism. Ithaca: Cornell University Press. Bederman, D. J. (2001). International law in antiquity. Cambridge: Cambridge University Press. Best, G. (1994). Restraints on land war. In L. Freedman (Ed.), War (pp. 226–270). New York: Oxford University Press. Bonfils, H. (1905). Manuel de droit international public (4th ed.). Paris: Paul Fauchille. Bowett, D. W. (1958). Self-defense in international law. Manchester: Manchester University Press. Brierly, J. L. (1963). The law of nations (6th ed., H. Waldock, Ed.). Oxford: Oxford University Press. Brown, D. E. (1991). Human universals. New York: McGraw-Hill.

References

85

Brownlie, I. (1963). International law and the use of force by states. Oxford: Clarendon. Brunstetter, D., & Brown, M. (2013). From jus ad bellum to jus ad vim: Recalibrating our understanding of the moral use of force. Ethics & International Affairs, 27(1), 87–106. Cicero, M. T. (1989). In defense of Titus Annius Milo. In M. Grant (Ed.), Selected political speeches of Cicero (pp. 215–278). London: Penguin. (Original work dated 52 BCE) Clark, C. (2006). Iron kingdom: The rise and downfall of Prussia, 1600–1947. Cambridge, MA: Harvard University Press. Clark, G. (1958). War and society in the seventeenth century. Cambridge: Cambridge University Press. Clausewitz, C. (1962). On war (E. Collins, Trans.). Chicago: Henry Regnery. (Original work published 1832) Despagnet, F. C. R. (1910). Cours de droit international public (4th ed.). Paris: Charles de Boeck. de Spinoza, B. [Baruch]. (1891). The chief works of Benedict de Spinoza (Vol. 1, R. Elwes, Trans.). London: George Bell and Sons. (Original work published 1670) de Vitoria, F. (1917). De indis et de jure belli relectiones (J. Bate, Trans). Washington, DC: Carnegie Institution. (Original work published 1696) Dewey, J. (1923a, October 3). What outlawry of war is not. New Republic, 36, 149–152. Dewey, J. (1923b, October 24). War and a code of law. New Republic, 36, 224–226. Eger, I. (2012, July 11). “I got next”: Exploring New York through pickup basketball. New York Times, p. B11. Ember, C. R. (1978). Myths about hunter-gatherers. Ethnology, 17(4), 439–448. Fettweis, C. J. (2010). Dangerous times? The international politics of great power peace. Washington, DC: Georgetown University Press. Fiore, P. (1918). International law codified and its legal sanction (5th ed., E. Borchard, Trans.). New York: Baker, Voorhis. Frederick II. (1992). The state’s need for territory. In E. Luard (Ed.), Basic texts in international relations (pp. 162–164). New York: St. Martin’s Press. (Original work published 1768) Fromkin, D. (1981). The independence of nations. New York: Praeger. Graff, D. A. (2010). The Chinese concept of righteous war. In H. M. Hensel (Ed.), The prism of just war: Asian and western perspectives on the legitimate use of military force (pp. 195–216). Burlington, VT: Ashgate. Green, J. A. (2009). The international court of justice and self-defense in international law. Oxford: Hart. Habicht, M. (1931). Post-war treaties for the pacific settlement of international disputes. Cambridge, MA: Harvard University Press. Hashmi, S. H. (1996). Interpreting the Islamic ethics of war and peace. In T. Nardin (Ed.), The ethics of war and peace: Religious and secular perspectives (pp. 146–166). Princeton: Princeton University Press. Hathaway, O. A., & Shapiro, S. J. (2017). The internationalists: How a radical plan to outlaw war remade the world. New York: Simon & Schuster. Hensel, H. M. (2010). Christian belief and western just war thought. In H. M. Hensel (Ed.), The prism of just war: Asian and western perspectives on the legitimate use of military force (pp. 29–86). Burlington, VT: Ashgate. Holmes, R. L. (1989). On war and morality. Princeton: Princeton University Press. Holsti, K. J. (2004). Taming the sovereigns: Institutional change in international politics. Cambridge: Cambridge University Press. Hopgood, S. (2013). The endtimes of human rights. Ithaca: Cornell University Press. Johnson, J. T. (1975). Ideology, reason, and the limitation of war: Religious and secular concepts, 1200–1740. Princeton: Princeton University Press. Joll, J. (1984). The origins of the first world war. London: Longman. Khadduri, M. (1966). The Islamic law of nations: Shayb¯an¯ı’s Siyar. Baltimore: Johns Hopkins University Press.

86

4 Normative Constraints on the Recourse to War

Kovalev, S. (1968, September 26). Sovereignty and the international duties of socialist countries. Pravda, p. 4. Kretzmer, D. (2013). The inherent right to self-defense and proportionality in jus ad bellum. European Journal of International Law, 24(1), 235–282. Lippmann, W. (1923, August). The outlawry of war. Atlantic Monthly, 132, 245–253. Litwak, R. S. (2000). Rogue states and U.S. foreign policy: Containment after the cold war. Washington, DC: Woodrow Wilson Center Press. Luvaas, J. (Ed.). (1966). Frederick the great on the art of war (J. Luvaas, Trans.). New York: Free Press. Mérignhac, A. (1895). Traité théorique et pratique de l’arbitrage international. Paris: L. Larose. Miles, A. (2013). U.S. foreign policy and the rogue state doctrine. London: Routledge. Morkevicius, V. (2010). Hindu perspectives on war. In H. M. Hensel (Ed.), The prism of just war: Asian and western perspectives on the legitimate use of military force (pp. 169–191). Burlington, VT: Ashgate. Neff, S. C. (2005). War and the law of nations: A general history. Cambridge: Cambridge University Press. Pinker, S. (2018). Enlightenment now: The case for reason, science, humanism, and progress. New York: Viking. Raeder, A. E. (1912). L’Arbitrage international chez les Hellenes. Paris: Felix Alcan. Ravitzky, A. (1996). Prohibited wars in Jewish tradition. In T. Nardin (Ed.), The ethics of war and peace: Religious and secular perspectives (pp. 115–127). Princeton: Princeton University Press. Richelieu, C. [Armand Jean de Plessis]. (1961). The political testament of Cardinal Richelieu (H. Hill, Trans.). Madison: University of Wisconsin Press. (Original work published ca. 1646) Rodin, D. (2003). War and self-defense. New York: Oxford University Press. Rubenstein, R. E. (2010). Reasons to kill: Why Americans choose war. New York: Bloomsbury Press. Russell, F. M. (1936). Theories of international relations. New York: Appleton-Century-Crofts. Sagan, S. D. (2017). The face of battle without the rules of war: Lessons from Red Horse & the Battle of the Little Bighorn. Daedalus, 146(1), 24–43. Schachter, O. (1989). Self-defense and the rule of law. American Journal of International Law, 83(2), 259–277. Sengupta, B. P. (1925). Conquest of territory and subject races in history and international law. Calcutta: Gouranga Press. Shotwell, J. T. (1929). War as an instrument of national policy and its renunciation in the pact of Paris. New York: Harcourt Brace. Tang, S. (2008). Fear in international politics: Two positions. International Studies Review, 10(3), 451–471. Teichman, J. (1986). Pacifism and just war. Oxford: Basil Blackwell. Thucydides. (1951). The Peloponnesian war (R. Crawley, Trans.). New York: Random House. (Original work dated ca. 400 BCE) Tod, M. N. (1913). International arbitration amongst the Greeks. Oxford: Clarendon Press. Treitschke, H. (1992). War as the foundation of the state. In E. Luard (Ed.), Basic texts in international relations (pp. 206–209). New York: St. Martin’s Press. (Original work published 1898) Ullmann, W. (1971). The medieval papal court as an international tribunal. Virginia Journal of International Law, 11(2), 356–371. Vagts, A. (1956). Defense and diplomacy: The soldier and the conduct of foreign relations. New York: King’s Crown Press. Vinson, J. C. (1957). William E. Borah and the outlawry of war. Athens: University of Georgia Press. Warren, A., & Bode, I. (2014). Governing the use-of-force in international relations: The post-9/11 U.S. challenge on international law. New York: Palgrave Macmillan.

References

87

Wedgwood, R. (2002). Propositions on the law of war after the Kosovo campaign. In A. E. Wall (Ed.), Legal and ethical lessons of NATO’s Kosovo campaign (pp. 433–441). Newport, RI: Naval War College Press. Whitman, J. Q. (2012). The verdict of battle: The law of victory and the making of modern war. Cambridge, MA: Harvard University Press. Woolsey, T. D. (1872). Introduction to the study of international law (3rd ed.). New York: Scribner, Armstrong & Co.

Chapter 5

Necessity as a Defense for Breaching the Norms of War

On August 4, 1914, German Chancellor Theobald von Bethmann-Hollweg delivered an animated speech to the Reichstag, informing the deputies that their country’s military forces had crossed the Belgian frontier at Gemmerich and were racing toward France. A year earlier Foreign Minister Gottlieb von Jagow promised to respect Belgian neutrality if war with France occurred. Now parliament learned that the German army had occupied Luxembourg and was slicing through Belgium. Although the chancellor granted that breaking the government’s promise was wrong, and that invading neutral territory violated international law, he swore that officials in Berlin could not have done otherwise. What alarmed the chancellor and his national security advisers was the prospect of a two-front war with France and its ally Russia at the very time that Germany was losing military preeminence on the continent. France would soon be able to match the size of the German army by extending the period of national military service from two to three years, and an ambitious program of Russian railway expansion would make it possible for an even larger army to overwhelm Germany’s eastern border in the near future. Exposing the German nation to this threat, the chancellor explained, would have been criminal. Military planners saw only one way to avoid defeat. Drawing on a strategy devised a few years earlier by Alfred von Schlieffen, chief of the imperial general staff, Germany would fight its opponents sequentially, launching a flanking attack on France through neutral Belgium before pivoting eastward to engage the slower moving Russians. Unless Germany moved first and took full advantage of the superior speed and maneuverability of its armed forces, the country’s leaders feared that it would be crushed. Germany had no choice. Strategic necessity compelled it to march through Belgium in violation of international legal norms. “Necessity,” Bethmann-Hollweg proclaimed, “recognizes no law” (New York Times Current History 1915).

© The Author(s) 2021 G. A. Raymond, International Norms and the Resort to War, https://doi.org/10.1007/978-3-030-54012-8_5

89

90

5 Necessity as a Defense for Breaching …

The Exigencies of Necessity Chancellor Bethmann-Hollweg’s appeal to the exigencies of necessity exemplified a tack many political and military leaders have taken when accused of transgressing established norms. More than two millennia ago, the Athenians employed the necessity defense during the Peloponnesian War to justify fortifying of the temple of Apollo at Delium, which violated a Greek norm that prohibited desecrating religious sites in an invaded country. “Anything done under the pressure of war and danger,” the Athenians declared, “might reasonably claim indulgence” (Thucydides 1951, p. 261). Over the ensuing centuries, references to necessity have appeared in many legal codes, as evidenced by the concepts of dar¯urah, kinkyu-hinan, and notstand within Islamic, Japanese, and German law, respectively.

Necessity and Reason of State Although Chancellor Bethmann-Hollweg conceded that Germany should “try to make good on the injustice” once its military objectives were achieved,1 he steadfastly maintained that strategic necessity warranted Berlin’s actions. His claim rested on an implicit distinction between private morality, which guided the behavior of ordinary people in their everyday lives, and reason of state (Staatsräson, raison d’état), which governed the conduct of leaders who were responsible for the security and survival of the country. As seen through the lens of reason of state, almost any action taken by a leader that contributes to the well-being of the state is permissible, even if it contravenes the moral principles that shape how people behave on a daily basis. By implying that fateful foreign policy decisions lie beyond the pale of conventional morality, Bethmann-Hollweg was following a timeworn rhetorical strategy. The first person to differentiate between private and public ethics may have been Aristides the Just, described by Plutarch (1932, p. 395) as the most honest and evenhanded of the ancient Greeks.2 However, it was not until the Italian Renaissance philosopher Niccolò Machiavelli divorced politics from ethics that the distinction became widely influential. For Machiavelli, any actions taken by government leaders in the interest of state security are permissible no matter how repugnant they might seem in light of private morality. A prince, he advised, “cannot observe all those things which are considered good in men, being often obliged, in order to maintain the state, to act against faith, against charity, against humanity, and against religion” (Machiavelli 1950, p. 65). The concept of reason of state gained further popularity toward the end of the sixteenth century, becoming so commonplace that the political writer Ludovico Zùccolo joked that barbers referred to it while gossiping with customers (Haslam 2002, p. 38). As the concept entered the diplomatic vernacular, a vast literature developed on efficacious but morally problematic methods of statecraft. Dense philosophical tomes probed the meaning of reason of state. Some commentators, influenced

The Exigencies of Necessity

91

by Tacitus’ descriptions of imperial Roman rule, linked reason of state to what they believed was an ancient arcana of governance. Enigmatic or not, others doubted there was a single reason of state, proposing instead that every regime had a unique reason of state that arose from its distinctive political culture. Still others, troubled by the malleability of the concept, distinguished between commendable and debased forms of reason of state.3 Despite their differences, almost all commentators shared a similar concern: How does one defend violations of prevailing norms when acting as an agent of the state? Three pleas have been common since antiquity. One plea denies the factual basis of a charge (“I did not violate norm n.”). Another questions whether a given action fell under an accepted definition of wrongful behavior (“What I did was not really a violation of norm n.”). Still another refers to the exigencies of the situation (“I violated norm n, but there were extenuating circumstances.”).4 Leaders who invoke reason of state typically rely on this last type of defense. The characteristic formulation is: “Circumstances required me to do x, even though it contravened norm n.” The circumstances cited when mounting a defense based on the exigencies of the situation are wide ranging. Appeals to fortuitous events declare that certain conditions made it impossible to know one was acting in breach of a norm. Appeals to force majeure purport that an irresistible force made it physically impossible to comply with a norm. Appeals to duress claim that the use or threat of coercion by another party forced one to violate a norm. Finally, appeals to necessity defend the breach of a norm by asserting that the action was the only practical means of safeguarding the state against a grave and imminent peril. In the words of an aphorism constantly cited by those making such appeals: Necessitas quod cogit, defendit (Necessity defends what it compels). Necessity enjoins national leaders to marshal the wherewithal to defend vital security interests, those that cannot be compromised and must be upheld at any cost. Across different cultures and historical eras, appeals to necessity serve several common purposes. Primarily, they seek to eliminate any obligation to comply with certain moral and legal principles by trying to carve out exceptions to their prescriptions. When exceptions are not recognized, they have either attempted to preclude wrongdoing by justifying otherwise immoral or unlawful acts, or they have attempted to mitigate blameworthiness by excusing such behavior (Hayashi 2010, pp. 49–50; Hruschka 2006, pp. 324–326).5 Regardless of whether they take the form of an exception, a justification, or an excuse, necessity defenses generally mention emergency conditions when declaring undesirable means may be required to achieve desirable ends. Usually this entails a sliding scale: The greater the emergency, the greater the propriety of setting aside moral and legal principles.6 Drawing upon the criteria specified by US Secretary of State Daniel Webster following the Caroline incident of 1837, supreme emergencies tend to be conceptualized as occasions that are “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” In these extreme situations, suggested the seventeenth-century philosopher John Locke (2002, p. 76), leaders have the discretion to act “against the direct letter of the law, for the public good.” Reason of state, added the Scottish philosopher David Hume (1948, p. 203), allows

92

5 Necessity as a Defense for Breaching …

them to “dispense with the rules of justice.” Respecting legal norms—domestic and international—may be one of the highest duties of a public officer, concluded Thomas Jefferson, but it is not the highest. “The laws of necessity, of self-preservation, of saving our country when in danger,” he professed, “are of a higher obligation” (as cited in Schlesinger 1973, pp. 24–25).7 Arthur Sylvester (1967, p. 10), the US assistant secretary of defense for public affairs during the Cuban missile crisis, agreed. When facing an existential threat, “the Government has the right, indeed the duty, to lie if necessary to mislead an enemy and protect the people it represents.”

Applications of the Necessity Defense “Even gods themselves do not try to fight necessity,” the lyric poet Simonides of Ceos (ca. 556–468 BCE) supposedly remarked. Life imposes imperatives on one and all, he believed. For political leaders, this may mean resorting to war, not as a personal preference but as an obligation to protect the interests of the states they govern. Taking it as axiomatic that every now and then foreign policymakers have no option but to use military force, some statemen divide wars of choice from wars of necessity. Israeli Prime Minister Menachem Begin, for example, spoke of wars of choice and wars of no alternatives (Haass 2009, pp. 9–10). Similarly, in his June 4, 2009, speech at Egypt’s Cairo University, US President Barack Obama described the war in Iraq as one of choice and the war in Afghanistan as one of necessity. Robert Gates, his secretary of defense, made the same distinction in an interview on June 17, 2011, adding that while he was always cautious about embarking on the former, he understood the importance of never shirking from the latter. As a defense for derogation from international prohibitions on the use of force, pleas of necessity have been used to support many controversial actions, ranging from wartime measures against belligerents and neutrals to various non-amicable modes of redress short of war (see Ohlin and May 2016; Dinstein 2004; Weidenbaum 1984; Dunbar 1952; Rodick 1928). It was employed by Great Britain to rationalize destroying the Danish fleet at Copenhagen in 1807 and Russian fishing vessels in the Sea of Azov during the Crimean War; it was utilized by Austria to annex Kraków in 1846; it was invoked by Prussia to explain sinking British cargo ships in the River Seine during the Franco-Prussian War; it was pressed into service by the United States to defend the bombardment of Greytown, Nicaragua in 1854, and, together with France, Great Britain, and the Netherlands, to defend bombarding Japanese shore batteries along the Straits of Shimonoseki a decade later. The necessity defense also was used by defendants at the Nuremberg trials to absolve themselves of blame for their behavior in occupied territories; it was employed by Tunisia in 1958 to justify its efforts to expel French troops from its territory; it was asserted by Belgium to account for its 1960 intervention into the Congo and participation in the 1999 NATO bombing campaign against the Federal Republic of Yugoslavia; it was trotted out

The Exigencies of Necessity

93

by US President Ronald Reagan to explain the 1983 US intervention into Grenada; it was alluded to by Tanzania to justify closing its border during the Rwandan civil war; and it was used by Israel to support its 1996 and 2012 military campaigns in Lebanon and the Gaza Strip, respectively. The rhetorical strategy underlying the argument from necessity is to frame situations of limited options as situations where no alternatives exist.8 How a situation is depicted can exclude certain policy options from consideration without ever having their merits evaluated. When portrayed in terms of overwhelming necessity, political leaders appear compelled to act in a particular way. Since any other action on their part would be futile, their behavior ostensibly lies beyond moral judgment. “Praise and blame are accorded to voluntary acts,” noted Aristotle (1963, p. 316) in a classic expression of this view, “but involuntary acts are accorded pardon, and at times pity.” Framing foreign policy situations with the vocabulary of necessity gives political leaders an opportunity to bypass any attempt to interrogate their ethics by shifting policy discussions from the conditional (“Circumstances constrain my choices to x, y, and z.”) to the categorical (“I have no alternative but to do x.”). The aim of this rhetorical strategy is to blur the difference between true necessity and expediency. Whereas the former implies that one cannot help but to act in a certain way, the latter involves doing merely what is advantageous based on considerations of utility. Such a strategy has two ends. First, it frees the individual from responsibility (“It had to be done.”). Second, it ennobles the individual by portraying him or her as uniquely qualified to recognize the geopolitical imperatives facing the nation and singularly capable of responding to their demands (“A lesser person would not have been able to recognize what had to be done.”). Arguments from necessity are similar to dilemmatic arguments, which allege that a given situation allows for only two possible choices, both of which are problematic. In addition to attempting to sway a target audience by abridging the number of choices that are presented, dilemmatic arguments further bias the decision-making process by attaching different weights to each side of the either/or conditional (Ribak 1995). Frequently the choices are presented as either “doing x” or “doing nothing,” where the case for former is weighted more heavily than the case for the latter. The hidden assumption is that if x constitutes the superior alternative, then one must do whatever is necessary to implement x, costs notwithstanding. During the Lebanese civil war of 1975–1990, Henry Kissinger used this rhetorical ploy to push for a more aggressive US role in the Middle East. Speaking on David Brinkley’s This Week following the October 1983 truck bombing of the US Marine barracks at Beirut international airport, Kissinger argued that Washington’s dilemma was to either do more in the Levant or to retrench. Whereas each alternative had its difficulties, the latter, he submitted, would be far more detrimental because withdrawing from the region after a terrorist attack would set a dangerous precedent (Grandin 2015, p. 193). Thus, while arguments from necessity explicitly identify the specific course that must be taken, dilemmatic arguments stack the deck in favor of one option and implicitly suggest that it must be done.

94

5 Necessity as a Defense for Breaching …

Appraisals of the Argument from Necessity Arguments from necessity are both common and controversial.9 Necessity may be “a thing in every body’s Mouth,” as the natural law philosopher Samuel von Pufendorf (1749, p. 200) observed, but no defense for sidestepping ethical and legal principles is more contentious. British Prime Minister William Pitt the Younger described necessity to the House of Commons on November 18, 1783, as the argument of despots, a line of reasoning that tries to exempt appalling behavior from review and censure. Political realists disagree. They applaud the flexibility that the necessity defense gives national leaders who often must accede to the lesser evil when responding to the harsh contingencies of international affairs. Pursuing moral perfectionism— what Max Weber (1977) called the absolute ethics of ultimate ends—is ill-advised. On the one hand, realists point out that it can produce self-righteous, messianic foreign policies.10 On the other hand, its lofty requirements can beget inaction when a situation demands initiative. For realists, the rightness or wrongness of an act depends on its consequences. Sometimes an option may be right in consequentialist terms even though it leaves the decision maker guilty of committing a morally bad act. As former White House aide Alexander Butterfield said when reflecting on foreign policy record of US President Richard Nixon, “A person can easily be good for the country while operating a cesspool” (as cited in Woodward 2015, p. 158). Whereas most supporters of necessitarian arguments emphasize the liberty it gives to foreign policymakers and battlefield commanders on how they use force, some of its backers also prize it for restraining wanton, superfluous violence. Following the standard of military necessity, they allege, mitigates gratuitous destruction. Their claim originated with medieval canonists and flourished in the jurisprudence of the sixteenth and seventeenth centuries. The just side in a war could do whatever was militarily required to defeat an enemy, so this argument went, but it could not do more than was necessary (Grotius 1949, pp. 269, 353, 359).11 During the Hundred Years’ War (1337–1453), for example, sieges were permissible, but given the horrors they unleashed, delivering up a city to be sacked in the absence of military necessity was considered unjust (Merton 1993, p. 103). “Right goes hand in hand with necessity and the exigency of the case,” insisted the Swiss jurist Emmerich de Vattel (2008, p. 542), “but never exceeds them.” In contrast to those who accept the necessity defense, detractors complain that it gives leaders a blank check for illicit behavior (Agius 2009, p. 115; Sturzo 1929, p. 108). Once a situation is characterized in terms of when action must be taken instead of whether it should come to pass, opportunities are interpreted as imperatives, whose demands intensify whenever windows of vulnerability seem to be opening. In a crisis, national leaders may experience a sense of resignation if they feel that they have been swept up by the tide of events. Believing that their range of alternatives is narrower than those available to the other side, they may focus on the timing of an expected conflict rather than with avoiding its occurrence. The language of necessity thus facilitates shifting foreign policy discourse from a hidden ought to an explicit must. One of the dangers of such a shift is the propensity

Appraisals of the Argument from Necessity

95

to believe that what is ostensibly necessary is also achievable. Imbued with the spirit of “can-doism” and fortified by blind faith, foreign policy decision makers inveigled by necessitarian arguments tend to suppress personal doubts, marginalize critics, and reject information that challenges their hopes. Moreover, once they believe that some action is imperative, the felt necessity can acquire a quasi-moral quality. Ennobling the expedient is a paradoxical feature of the argument from necessity. Curiously, self-serving policies that run counter to prevailing codes of international behavior can be fancied as fulfilling some higher obligation. To quote John of Gaunt from Shakespeare’s King Richard II: “There is no virtue like necessity.” Despite these criticisms, the concept of necessity remains prominent in statecraft because it functions like a safety valve, allowing foreign policymakers to adjust their state’s level of compliance with legal obligations as circumstances change. Even if one tried to eliminate the concept of necessity from world politics, complained Judge Robert Ago (1980, p. 51) of the International Court of Justice, it is so deeply rooted in our consciousness that if “driven out of the door it would return through the window.”

Normative Support for Appeals to Necessity War has been called a “tyrant” lording “over all law” (Ayala 1912, p. vii) and necessity the “tyrant’s plea” (Milton 2005, p. 116) for overriding legal norms. Insisting that they cannot be judged by the same standards as everyone else, many senior officials try to do whatever they think must be done to advance state interests, even if their actions flout prevailing international norms. As the German statesman and literary figure Johann Wolfgang von Goethe reportedly said: “The law is mighty, but necessity is mightier.” One possible explanation for the persistence of necessitarian arguments lies in the nature of human cognitive processes. As discussed in Chapter 1, a large body of psychological research suggests that rather than being rational calculators who dispassionately weigh the costs, risks, and benefits of alternative courses of action, national leaders are emotional decision makers who are beset with doubts, struggle with painful trade-offs, and have a limited capacity to process the intelligence reports that they receive about the capabilities and intentions of their rivals (Crawford 2000). Deciding how to proceed causes acute stress when the choice must be made immediately, and the options are shrouded in uncertainty. People in such situations can experience cognitive tunneling, being so fixated on the decision that they become paralyzed by anxiety over making the wrong choice. To cope with this pressure, national leaders frequently adopt low-effort choice heuristics that permit them to make decisions quickly and confidently. Choice heuristics that single out one particular policy option based on the presumably irresistible demands of strategic necessity appeal to the tendency described in Chapter 2 for decision makers to attribute their

96

5 Necessity as a Defense for Breaching …

own actions to situational factors while attributing the same behavior to an adversary’s dispositional characteristics. The upshot is moral licensing—judging one’s own behavior more generously than the same behavior in others. The necessity defense may be commonplace, but normative support for it has varied over time. Widely accepted during certain historical periods, necessitarian arguments have been spurned during others. Mapping changes in the climate of international opinion regarding the necessity defense is a significant research challenge. Just as in the previous chapter, when we traced fluctuations in normative support for the use of war as an instrument of foreign policy, meeting this challenge requires us to construct an index that can track changes in the content of international norms.

Index Construction Judgments on when the necessity defense can be used as an exception, a justification, or an excuse range across a broad spectrum of opinion. At one extreme are those who hold a highly permissive conception of necessity. Examples of this outlook can be found in the legal philosophy of Carl Lueder (1898), the early writing of Erich Kaufmann (1911), and the public statements of prominent military figures such as German generals von Blüme, von Disfurth, and von Moltke (see Garner 1920, p. 281). From their perspective, any use of force is proper if it is required for advancing state interests. “It is not only the right,” the most strident of these individuals add, “but it is the moral and political duty of the statesman to bring about a war” that augments his or her state’s power and improves its relative position (Bernhardi 1914, p. 41). Even “the dictates of humanity may have to give way” to strategic necessities (Rattigan 1892, p. 369). As emphasized by the adage Kriegsraison geht vor Kriegsmanier (Necessity in war overrules the manner of warfare), military operations should be conducted without shackles (Hartmann 1877, p. 114). War “is not a work of charity” (Colmar von der Goltz as cited in Fairburn 1918, p. 102). At the opposite end of the spectrum are those who, like the tribunal in the 1990 Rainbow Warrior arbitration (New Zealand v. France), question the necessity defense. Appeals to necessity, according to this point of view, are “tantamount to “a rejection of international law” (Waldock 1953, p. 461; see also Brownlie 2008, p. 734). The rules of war have already accounted for military imperatives and thus the necessity defense is only admissible when lawmaking treaties have sanctioned its invocation in advance of an armed conflict. Iron necessities, to paraphrase the nineteenth-century philosopher Friedrich Nietzsche, are neither iron nor necessary. Finally, located between these polar extremes are limitationists who accept the necessity defense with stipulations. Francis Lieber’s draft code of the rules of war, promulgated as General Orders No. 100 by US President Abraham Lincoln on April 24, 1863, and published under the title Instructions for the Government of the Armies of the United States in the Field, epitomizes weak limitationism. It forbade torture (Article 16), poison (Article 70), violating truces (Article 114), and assassination (Article 148), but otherwise allowed states to employ “those measures which …

Normative Support for Appeals to Necessity

97

[were] indispensable for securing the ends of war” (Article 14). Anchored in the precept that saving “the country is paramount to all other considerations” (Article 5), Lieber’s code gave political leaders and military commanders considerable discretion over how they could use force. Like in the Brussels Declaration of 1874, necessity was conceived as a restraint on rash, excessive violence, but the restrictions placed on it were eviscerated by numerous exceptions (Witt 2012, p. 344). Nonetheless, weak limitationists believe that even minor limits on the use of force are valuable (Rogers 2004, p. 3). Strong limitationists propose tighter constraints on the necessity defense. As exemplified by the stance of the International Law Commission (2001), necessity cannot be used to defend aggression, noncompliance with peremptory norms, actions where the state in question contributes to the situation of necessity, or behavior that seriously impairs the legally protected interests of other states. Furthermore, if necessity is established, legal obligations are merely postponed and the state invoking necessity must return to compliance as soon as possible. At any specific point in time the climate of opinion within the state system regarding the necessity defense resides somewhere on a continuum that ranges from permissive to restrictive. In order to gauge changes in support for restrictions on the necessity defense, I employed the methodology used in the previous chapter to measure changes over time in the degree of normative support for restrictions on war as an instrument of foreign policy. All of the legal treatises in the TRIP database were coded on a five-point scale that measured the degree to which international legal norms were perceived by the authors as supporting a restrictive conception of the necessity defense. Once every treatise in a particular half-decade was coded, I calculated the mean value for each successive recording period. The resulting index ranged from 1.00 (permissible) to 5.00 (restrictive), with intermediate positions arrayed in between indicating various shades of limitationism. The higher the score on the index, the more prevailing norms supported a restrictive conception of necessity; the lower the score, the more they supported a permissive conception.

The Historical Trend Figure 5.1 shows a plot of the values of the necessity norm index during the course of the nineteenth and twentieth centuries. The trend line fits the description that scholars give of the gradual evolution toward normative support for a restrictive conception of the necessity defense (see Schmitt 2010, p. 805; Hayashi 2008, p. 142). Backing for a permissive interpretation of necessity was strong in the immediate aftermath of the French Revolutionary and Napoleonic Wars, which had battered Europe for almost a quarter century, leaving over two and a half million combatants dead. With the 1815 Treaty of the Holy Alliance and the Quadruple Alliance, the major continental powers of the period forged a security regime that envisioned preventive military intervention as a necessity whenever liberal threats to monarchical legitimacy surfaced. At the Congress of Aix-la-Chapelle in 1818, France joined

98

5 Necessity as a Defense for Breaching … 5.00 4.50

Necessity Index

4.00 3.50 3.00 2.50 2.00 1.50 1.00 1820

1840

1860

1880

1910

1930

1950

1970

1990 2000

Fig. 5.1 Normative support for a restrictive conception of the necessity defense (Although pleas of strategic necessity received normative support immediately following the Napoleonic Wars and during the years preceding World War I, acceptance of a more restricted conception of the necessity defense increased during the last half of the twentieth century. Note Ten-year moving average with linear trend line)

what became a new Quintuple Alliance that would intervene on behalf of rulers who were threatened by revolutionary insurrection. Revolts in Spain and Naples led Russia, Austria, and Prussia to agree at the Congress of Troppau that force could be used against states “which have undergone in their internal structure an alteration brought on by revolt, whose consequences may be dangerous to other states.” Shortly thereafter, at the Congress of Laibach, the conservative continental powers backed Austria’s intervention into Naples and Piedmont to suppress liberal revolts. The following year at Verona, they agreed to a French proposal to crush Spanish rebels. Great Britain, the other major power of this period, generally resisted the argument that strategic imperatives licensed outsiders to regulate other states’ domestic affairs. In January 19, 1821, circular dispatch to British missions abroad, Foreign Secretary Castlereagh indicated that only under the “strongest” necessity would London violate the rights of another state by intervening in its internal politics. The revolutions that swept through Europe in 1848 briefly ended the permissive rules of international conduct that the continental great powers advocated. Normative support for a more restrictive conception of necessity initially grew, only to decline during the last quarter of the century, as the military establishments of the Netherlands (1871), Serbia (1879), Spain (1882), France (1884), Great Britain (1884), Portugal (1890), Russia (1895), and Italy (1896) published field manuals that reaffirmed the elements of the necessity defense (Martin 1957, pp. 639–640). Sovereignty remained international law’s core value and appeals to necessity were seen as a prerogative of sovereign power (Koskenniemi 2009).

Normative Support for Appeals to Necessity

99

Normative support for renewed restrictions on the necessity defense increased during the twentieth century. From The Hague Conferences of 1899 and 1907 onward, the situations under which pleas of necessity were accepted gradually diminished. The positions taken in the Geneva Protocol of 1925, the Nuremberg and Tokyo war crimes trials, the Geneva Convention of 1949 and the Protocols of 1977, as well as in verdicts issued by the International Court of Justice and the International Criminal Court testify to the growing restrictiveness of international legal norms.12 To be sure, states continued to invoke necessity when pleading their cases, but their arguments did not have the traction that they had enjoyed during the late nineteenth and early twentieth centuries. To sum up, whereas strategic necessity was once considered a permit to undertake almost any armed action short of malicious destruction, a limitationist conception of exculpatory circumstances characterized the international normative order at the start of the twenty-first century. Rather than standing outside the law, the concept of necessity became subordinate to it (Luban 2013, pp. 341–343). Military necessities no longer automatically outweighed humanitarian considerations whenever conflict between them occurred. The necessity defense now was seen as applicable only in rare situations, where an immediate threat to a fundamental state interest was accompanied by the lack of any other practicable, lawful way to protect that interest. States were not expected to bear irreparable harm by conforming to legal obligations but using necessity to authorize whatever their leaders deemed expedient for achieving military success was deprecated.

The Place of Necessity Within the International Normative Order At least since musings of Leucippus in the fifth century BCE, philosophers have pondered the extent to which people have genuine options when making choices. Many cultures believe that certain outcomes are unavoidable, regardless of what a person does. They are necessitated—fated to occur. But unlike š¯ımtu in ancient Mesopotamia, moîra in Archaic Greece, or similar notions in other cultures, necessity in foreign policy is not due to a mysterious agency that predetermines the course of events. The purported necessities of statecraft are seen by most political realists as compatible with freedom of will and individual responsibility. They represent what realists think astute policymakers must do in certain circumstances, not what they are foreordained to do. This nondeterministic interpretation of necessity is an integral part of international normative orders. Deeply engrained within the principles governing the use of force, it has been accepted in state practice, cited in treaties, and referenced in judgments rendered by international tribunals. Its allure rests on the premise that exceptional circumstances occasionally arise where regularly applicable legal norms do not sufficiently protect essential state interests (Gazzini et al. 2010).

100

5 Necessity as a Defense for Breaching …

As a defense for violating widely accepted guidelines on the use of force, necessity norms operate within the framework of those norms that define what is appropriate conduct. Injunctive norms prescribe or proscribe behavior; qualifying norms address breaches of those instructions (Tsagourias 2010, p. 30). The legitimacy norm discussed in the previous chapter belongs to the former category; the necessity norm described here belongs to the latter category. Legitimacy norms specify when it is acceptable for states to resort to war; necessity norms qualify those specifications. In this manner, legitimacy and necessity norms work in tandem. Within highly permissive normative orders, few constraints exist on employing deadly force as an instrument of foreign policy, and most infringements on those limitations are justified under a broad conception of state necessity. Alternatively, there are significant constraints on resorting to war in highly restrictive orders, and the necessity defense is confined to exceptional circumstances. As noted in Chapter 3, proponents of power politics believe that restrictive normative orders are ineffective in keeping global violence in check. What is more, expecting them to curtail armed conflict is dangerous because they create a false sense of safety that can lead vulnerable states to let down their guard. Are these allegations true? Is war impervious to firm constraints? Are restrictive war-initiation norms fleckless? Political realists and their critics have debated these questions since the birth of international relations as a field of academic study. Although each side can conjure up a list of ad hoc examples to illustrate their arguments, neither group has conducted rigorous tests to provide hard evidence that would corroborate their claims. My aim in the chapters ahead is to offer such evidence. With the conceptual and operational definitions of our legitimacy and necessity indices behind us, we can now turn our attention to analyzing whether these war-initiation norms affect the incidence and seriousness of war. Notes 1.

2.

Support for his position can be found in Strupp (1914, pp. 133–134). Some officials concurred with the claim that the invasion of Belgium was forced upon Germany but disagreed with the chancellor’s hint at restitution, calling instead for the annexation of the country after the war (see Bissing 1917, p. 24). Although the ideas underpinning reason of state existed in antiquity (Phillipson 1911, p. 96), the term was coined by Giovanni Botero (1965) in the sixteenth century. Much later, after the concept had become common in modern diplomatic discourse, some government officials expressed misgivings about its implications. For example, British diplomat George Walden (1988, p. 71) denied that moral behavior could be “neatly segmented into public and private spheres.” Similarly, US President Jimmy Carter (1996, p. 123) insisted that a nation’s foreign policy actions “should be derived from the same standards of ethics … which are characteristic of the individual citizens of the nation.” Even individuals who seemed to accept the distinction between public and private morality voiced reservations. “If we had done for ourselves the things that we are doing

The Place of Necessity Within the International Normative Order

3.

4.

5.

6.

7.

8.

9.

101

for Italy,” mused Camillo Benso, Count di Cavour, “we should be great rascals” (as cited in Trevelyan 1948, p. 23). Given the enormity of the literature on reason of state, it is beyond the scope of this book to analyze the various lines of argument made by the scores of writers who have commented on the concept. For detailed treatments of their works, see Viroli (1992), Church (1972), and Meinecke (1957). These three types of pleas were formally proposed by the rhetorician Hermagoras of Temnos, who drew upon the insights of Naucrates and Zopyrus (Quintilian 1921, pp. 81–82). Some individuals employ the necessity defense both as an excuse and as a justification. Oliver Cromwell’s speech at the opening of the 1656 Protectoral Parliament, for instance, used it to excuse as well as justify English actions during the country’s ongoing war with Spain. For a discussion of the imprecise borders between excuse and justification, see Greenawalt (1984). As early as the twelfth century, the Italian canon lawyer Giovanni da Legnano (1917) referred to “extreme” necessity as a defense for otherwise wrongful acts. Writing within this tradition, De Martini (1955, pp. 81–82) developed a typology of “common,” “grave,” and “extreme” necessity, with progressively higher levels of necessity offering stronger types of defense. For treatments of the relationship between necessity and emergency, see Desierto (2012), Saint-Bonnet (2001), Lugones (1992), and Walzer (1973). Although this book focuses on the foreign policy prerogatives that leaders claim under the necessity defense, there is a substantial literature on the domestic implications of extralegal emergency powers, particularly in democratic regimes (see Edelson 2013; Fatovic 2009; Dyzenhaus 2006; Hasian 2005). I am deeply indebted to Alan Brinton for his keen insights into the formal structure of arguments from necessity. In foreign and defense policy, this type of reasoning occurs on different levels (Dunbar 1955; Huber 1913, pp. 363–373). On the strategic level, it often underpins assertions about allegedly absolute imperatives of statecraft. It was in this sense that Winston Churchill, while first lord of the Admiralty in 1911, described the German fleet as a luxury but the British fleet as a necessity, and Madeleine Albright, while US Secretary of State in 1998, claimed that the United States exercised global leadership out of necessity, not sentiment. On the tactical level, arguments from necessity frequently defend battlefield violations of the rules of warfare. British Secretary of State for War Lord Kitchener reflected this usage when he stated: “We must make war as we must; not as we should like” (as cited in Howard 1991, p. 31). Debates over the necessity defense have raged since the second century BCE, when philosophers began wrestling with the ethical quandary known as the Plank of Carneades. Attributed to Carneades of Cyrene (ca. 214–129 BCE), the quandary involves two shipwrecked sailors treading water far out at sea. Both spot a plank of wood that can keep a single person afloat. One sailor swims to the plank first, but the other quickly dislodges him and paddles away, leaving the first sailor to drown. The debate concerns whether the second sailor can invoke

102

5 Necessity as a Defense for Breaching …

necessity in this situation, claiming that he had no choice but to use force for selfpreservation. During the seventeenth century, Pufendorf (1991) revived interest in this quandary and the larger issues it raised about necessitarian arguments within the field of jurisprudence. 10. A central tenant of realism warns that strategic necessities, not moral imperatives, should guide statecraft. For realists, the 1998–1999 war in Kosovo, which eventually pitted the North Atlantic Treaty Organization (NATO) against the Federal Republic of Yugoslavia, exemplified how a crusading spirit can influence policy decisions. As noted in the previous chapter, NATO SecretaryGeneral Javier Solana, British Prime Minister Tony Blair, and US President Bill Clinton all argued that intervention to protect ethnic Albanians from repression by Yugoslav leader Slobodan Miloševi´c was a moral obligation. Although nonintervention into the internal affairs of other states had long been a cardinal principle of international law, they saw military action against Yugoslavia as a duty because human rights were an international entitlement and governments that violated them forfeited the protection of international law. National leaders, they declared, had a responsibility to stop flagrant violations of human rights, even when they occurred in other countries. Realists dismissed their contention, arguing that leaders should not dissipate their nation’s strength intervening wherever it flatters their moral sensibilities. As the former diplomat and celebrated realist scholar George Kennan (1991, p. 60) once put it, the primary obligation of government “is to the interests of the national society it represents, not to the moral impulses that individual elements of that society may experience.” Similarly, Henry Kissinger (1999, p. 37) praised leaders who saw statecraft as a “marathon race” and refused to squander their nation’s power “in a series of sprints for the gallery.” Appalled by this stance, columnist Roger Cohen (2016) has portrayed this attitude as an example of the “cynicism and smallness inherent in realism.” 11. Another way that some people see appeals to necessity as a curb on excessive violence is through their role in justifying military operations to protect endangered foreign populations or to rescue nationals abroad. An example of a plea of “humanitarian necessity” can be found in the policy paper published by the British government on August 29, 2013, regarding the legality of military action to disrupt the use chemical weapons by the Syrian government. 12. See the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (advisory opinion) 2004 ICJ 135, Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) 2003 ICJ 161, Gabˇcíkovo-Nagymaros Project case (Hungary v. Slovakia) 1997 ICJ 7, Legality of the Use of Nuclear Weapons (advisory opinion) 1996 ICJ 226, and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) 1986 ICJ 14. Also see United States of America vs. Wilhelm List, et al., Nuremberg Military Tribunal, 1948, and Article 8 (2) of the Statute of the International Criminal Court, June 26, 1945.

References

103

References Agius, M. (2009). The invocation of necessity in international law. Netherlands International Law Review, 56(2), 95–135. Ago, R. (1980). Addendum to the eighth report on state responsibility. Yearbook of the International Law Commission (Vol. 2). New York: United Nations. Aristotle. (1963). The nicomachean ethics (A. Wardman, Trans.). New York: New American Library. (Original work dated ca. 350 BCE) Ayala, B. (1912). De jure et officiis bellicis et disciplina militari (J. Bate, Trans.). Washington, DC: Carnegie. (Original work published 1582) Bernhardi, F. (1914). Germany and the next war (A. Powles, Trans.). New York: Longmans, Green. Bissing, M. F. F. (1917). General von Bissing’s testament: A study in German ideals. London: T. Fisher Unwin. Botero, G. (1965). The reason of state (P. J. Waley & D. P. Waley, Trans.). New Haven: Yale University Press. (Original work published 1589) Brownlie, I. (2008). Principles of public international law (7th ed.). Oxford: Oxford University Press. Carter, J. (1996). Why not the best? Fayetteville: University of Arkansas Press. Church, W. (1972). Richelieu and reason of state. Princeton: Princeton University Press. Cohen, R. (2016, January 12). The limits of American realism. New York Times. https://www.nyt imes.com/2016/01/12/opinion/the-limits-of-american-realism.html. Accessed 12 January 2016. Crawford, N. C. (2000). The passion of world politics: Propositions on emotion and emotional relationships. International Security, 24(4), 116–156. De Martini, R. (1955). The right of nations to expand by conquest. Washington, DC: Catholic University of America Press. de Vattel, E. (2008). The law of nations (T. Nugent, Trans.). Indianapolis: Liberty Fund. (Original work published 1758) Desierto, D. A. (2012). Necessity and national emergency clauses. Leiden: Martinus Nijhoff. Dinstein, Y. (2004). The conduct of hostilities under the law of international armed conflict. Cambridge: Cambridge University Press. Dunbar, N. C. H. (1955). The significance of military necessity in the law of war. Juridical Review, 67(2), 201–212. Dunbar, N. C. H. (1952). Military necessity in war crimes trials. The British Year Book of International Law, 29, 442–452. Dyzenhaus, D. (2006). The constitution of legality: Law in a time of emergency. Cambridge: Cambridge University Press. Edelson, C. (2013). Emergency presidential power. Madison: University of Wisconsin Press. Fairburn, W. A. (1918). The diagnosis of the German obsession. New York: Nation Press. Fatovic, C. (2009). Outside the law: Emergency and executive power. Baltimore: Johns Hopkins University Press. Garner, J. W. (1920). International law and the world war (Vol. 1). London: Longmans, Green. Gazzini, T., Werner, W. G., & Dekker, I. F. (2010). Necessity across international law. Netherlands Yearbook of International Law, 41, 3–10. Grandin, G. (2015). Kissinger’s shadow: The long reach of America’s most controversial statesman. New York: Metropolitan Books. Greenawalt, K. (1984). The perplexing borders of justification and excuse. Columbia Law Review, 84, 1897–1927. Grotius, H. (1949). The law of war and peace (L. Loomis, Trans.). New York: Walter J. Black. (Original work published 1625) Haass, R. N. (2009). War of necessity, war of choice: A memoir of two Iraq wars. New York: Simon & Schuster. Hartmann, J. (1877). Militärische nothwendigkeit und humanität, ein kritisher versuch. Deutsche Rundschau, 13, 111–128.

104

5 Necessity as a Defense for Breaching …

Hasian, M., Jr. (2005). In the name of necessity: Military tribunals and the loss of American civil liberties. Tuscaloosa: University of Alabama Press. Haslam, J. (2002). No virtue like necessity: Realist thought in international relations since Machiavelli. New Haven: Yale University Press. Hayashi, M. N. (2008). The Martens clause and military necessity. In H. M. Hensel (Ed.), The legitimate use of military force: The just war tradition and the customary law of armed conflict (pp. 137–159). Aldershot: Ashgate. Hayashi, N. (2010). Requirements of military necessity in international humanitarian law and international criminal law. Boston University International Law Journal, 28(1), 39–140. Howard, M. (1991). British grand strategy in world war I. In P. Kennedy (Ed.), Grand strategy in war and peace (pp. 31–41). New Haven: Yale University Press. Hruschka, J. (2006). On the history of justification and excuse in cases of necessity. In B. S. Byrd & J. Hruschka (Eds.), Kant and law (pp. 323–335). Aldershot, UK: Ashgate. Huber, M. (1913). Die kriegsrechtlichen verträge und die kriegsraison. Zeitschrift für Völkerrecht, 7, 351–374. Hume, D. (1948). Moral and political philosophy (H. D. Aiken, Ed.). New York: Hafner. (Original work published 1751) International Law Commission. (2001). Articles on responsibility of states for internationally wrongful acts (Vol. 1). New York: UN General Assembly Resolution 56/83. Kaufmann, E. (1911). Das wesen des volkerrechts und die clausula rebus sic stantibus. Tübingen: J. C. B. Mohr. Kennan, G. F. (1991). Morality and foreign policy. In K. M. Jensen & E. P. Faulkner (Eds.), Morality and foreign policy: Realpolitik revisited (pp. 59–76). Washington, DC: United States Institute of Peace. Kissinger, H. (1999). Years of renewal. New York: Simon & Schuster. Koskenniemi, M. (2009). The legacy of the nineteenth century. In D. Armstrong (Ed.), Routledge handbook of international law (pp. 141–153). London: Routledge. Leganano, G. (1917). De bello, de represaliis et de duello (J. Brierly, Trans.). Oxford: Carnegie Institution. (Original work published 1360) Locke, J, (2002). The second treatise of government; and, a letter concerning toleration. Mineola, NY: Dover. (Original work published 1690) Luban, D. (2013). Military necessity and the cultures of military law. Leiden Journal of International Law, 26(2), 315–349. Lueder, C. (1898). Voelkerrecht. Freiburg: Mohr. Lugones, N. J. (1992). Leyes de emergencia: Decretos de necessidad y urgencia. Buenos Aires: Le Ley. Machiavelli, N. (1950). The prince (L. Ricci, Trans.). New York: Random House. (Original work published 1513) Martin, M. A. (1957). The Evolution and the present status of the laws of war. Recueil des Cours, 92(2), 633–754. Meinecke, F. (1957). Machiavellism: The doctrine of raison d’état and its place in modern history (D. Scott, Trans.). New Haven: Yale University Press. Merton, T. (1993). Henry’s wars and Shakespeare’s laws: Perspectives on the law of war in the later middle ages. Oxford: Clarendon. Milton, J. (2005). Paradise lost. Oxford: Oxford University Press. (Original work published 1667) New York Times Current History. (1915). The European war (Vol. 1). New York: The New York Times Company. Ohlin, J. D., & May, L. (2016). Necessity in international law. New York: Oxford University Press. Phillipson, C. (1911). The international law and custom of ancient Greece and Rome (Vol. 2). London: Macmillan. Plutarch (1932). The lives of the noble Grecians and Romans (J. Dryden, Trans.). New York: Modern Library. (Original work dated ca. 110 CE)

References

105

Pufendorf, S. (1991). On the duty of man and citizen according to natural law (M. Silverthorne, Trans.). Cambridge: Cambridge University Press. (Original work published 1682) Pufendorf, S. (1749). The law of nature and nations (5th ed.). (B. Kennet, Trans.). London: J. & J. Bonwicke. Quintilian, M. F. (1921). Institutio oratoria (Vol. 3, H. Butler, Trans.). Cambridge, MA: Heinemann. (Original work dated 95 CE) Rattigan, W. H. (1892). The science of jurisprudence (2nd ed.). London: Wildy & Sons. Ribak, R. (1995). Divisive and consensual constructions in the political discourse of Jews and Palestinians in Israel: Dilemmas and contradictions. In F. H. van Eemeren, R. Grootendorst, J. A. Blair, & C. A. Willard (Eds.), Proceedings of the third ISSA conference on argumentation (Vol. 4, pp. 205–215). Amsterdam: Stichting international Centrum voor de Studie van Argumentatie en Taalbeheersing. Rodick, B. C. (1928). The doctrine of necessity in international law. New York: Columbia University Press. Rogers, A. P. V. (2004). Law on the battlefield (2nd ed.). Manchester: Manchester University Press. Saint-Bonnet, F. (2001). L’état d’exception. Paris: Presses Universitaries de France. Schlessinger, A. M., Jr. (1973). The imperial presidency. Boston: Houghton Mifflin. Schmitt, M. N. (2010). Military necessity and humanity in international humanitarian law: Preserving the delicate balance. Virginia Journal of International Law, 50(4), 795–839. Strupp, K. (1914). Das internationale landkriegsrecht. Frankfurt am Main: Joseph Baer. Sturzo, L. (1929). The international community and the right of war (B. Carter, Trans.). London: George Allen & Unwin. Sylvester, A. (1967, November 18). The government has the right to lie. Saturday Evening Post, pp. 10–15. Thucydides. (1951). The Peloponnesian war (R. Crawley, Trans.). New York: Random House. (Original work dated ca. 400 BCE) Trevelyan, G. M. (1948). Garibaldi and the making of modern Italy. London: Longmans, Green. Tsagourias, N. (2010). Necessity and the use of force: A special regime. Netherlands Journal of International Law, 41, 11–44. Viroli, M. (1992). From politics to reason of state: The acquisition and transformation of the language of politics 1250–1600. Cambridge: Cambridge University Press. Walden, G. (1988). Ethics and foreign policy. London: Weidenfeld & Nicolson. Waldock, C. H. M. (1953). The regulation of the use of force by individual states in international law. Recueil des Cours, 2, 455–515. Walzer, M. (1973). Political action: The problem of dirty hands. Philosophy & Public Affairs, 2(2), 160–180. Weber, M. (1977). Politics as a vocation. In H. H. Gerth & C. W. Mills (Eds.), From Max Weber: Essays in sociology (pp. 77–128). London: Routledge and Kegan Paul. Weidenbaum, P. (1984). Necessity in international law. In Transactions of the Grotius Society (pp. 105–132). London: Sweet & Maxwell. Witt, J. F. (2012). Lincoln’s code: The laws of war in American history. New York: Free Press. Woodward, B. (2015). The last of the president’s men. New York: Simon & Schuster.

Chapter 6

Classifying International Normative Orders

In Tiger at the Gates, Jean Giraudoux’s disquieting play about events preceding the siege of ancient Troy, the city’s destiny of carnage and destruction is depicted as a relentless predator lurking just beyond the ramparts, furtively waiting for the chance to slip through an open gate. The seduction of Helen, the beautiful wife of King Menelaus of Lacedaemon, provided an opportunity. By abducting Helen and fleeing with some of the royal treasury, Prince Paris of Troy dishonored a powerful Achaean monarch, who subsequently sailed to northwestern Anatolia with a massive fleet to recover Helen and punish the Trojans. When the armada arrived on the Anatolian shore, Crown Prince Hector, Troy’s greatest warrior, vowed to meet with an ambassador from the Achaeans and resolve the dispute peacefully. Fighting over Helen would be folly, he believed. Returning her would avert a ruinous conflict. “I shall go into the square, and formally close the Gates of War,” Hector promised, and immediately urged Priam, the king of Troy, to bolt them once they were shut, “so that not even a gnat” could squeeze through (Giraudoux 1963, pp. 57, 62). Sadly, the Gates of War were easier to open than close. Despite Hector’s efforts, the predator—Troy’s destiny of bloodshed and misery—entered the city. Even though Hector did everything possible to prevent it, a long, devastating war ensued. Pitiless bronze-clad warriors tore into one another, inflicting terrible wounds with their slashing swords and thrusting spears. Why did things turn out this way when they might have been otherwise? After reflecting on the conditions that militate for and against the decision to take up arms, Ulysses, the Achaean ambassador, proposed an answer: “There’s a kind of permission for war which can be given only by the world’s mood and atmosphere, the feel of its pulse” (Giraudoux 1963, p. 87). Sometimes the climate of opinion is ripe for war.

© The Author(s) 2021 G. A. Raymond, International Norms and the Resort to War, https://doi.org/10.1007/978-3-030-54012-8_6

107

108

6 Classifying International Normative Orders

When Is the International Climate of Opinion Ripe for War? Various factors can ignite international hostilities. Some are proximate causes that directly trigger violence; others are more remote, involving dangerous underlying conditions that make even minor disputes susceptible to military escalation.1 One way to illuminate the difference between the proximate and remote sources of an event is to imagine what might have caused a mountain wildfire. Several immediate causes could have sparked the blaze, including embers from an unattended campfire, the hot exhaust system of an off-road vehicle parked on dry cheatgrass, or a lightning strike on parched ponderosa pine. Various underlying factors might also be responsible. Forests are prone to burn when their snowpacks have low water content, undergo early spring melting, and experience high summer evaporation rates. In contrast to those background conditions that can prime a forest for fire, other conditions, such as abundant moisture and a lengthy period of low temperatures, can make forests less apt to burn, notwithstanding human negligence and thunderstorms. Returning to the question of international hostilities, if we want to understand why national leaders sometimes resort to force during their disputes with other countries, a reasonable place to begin is by asking whether certain underlying conditions prime the state system for war, while others dampen its prospects. What remote, underlying factors affect the probability that states will employ force to settle their disagreements? Are certain background conditions so hazardous that the slightest provocation will set off an inferno? Can other conditions extinguish the glint of violence? When Ulysses suggested that the prevailing climate of opinion about international politics influences the use of force, he pointed to ideational background conditions. Political leaders do not exist in a sociocultural vacuum; ideas about propriety and responsibility—what is acceptable and what is contemptible, what is obligatory, and what is discretionary—affect their conduct. When trying to understand the remote, underlying conditions that enable the proximate causes of war to kindle hostilities, it is imperative, as Lord Acton (1904, p. 6) advised, “to get behind men and to grasp ideas.” Whereas certain ideas about appropriate behavior expand the bounds of what is considered proper and fitting, others encourage tighter parameters. The central theme of this book is that international norms grounded in the former open the Gates of War while norms based on the latter help close them.

Identifying Normatively Permissive and Restrictive Periods Having described permissive and restrictive normative orders in Chapter 3, we shift our efforts now to identifying when one or the other type of order existed. Over the past two centuries, which periods were normatively permissive and which ones were normatively restrictive? To answer this question, I will apply a statistical technique known as cluster analysis to data derived from the legitimacy and necessity norm indices described in Chapters 4 and 5.

Identifying Normatively Permissive and Restrictive Periods

109

Various techniques exist for classifying cases—physical items, biological entities, or historical periods—into relatively homogeneous groups. Cluster analysis is a multivariate statistical technique designed to reveal natural groups among cases based on a predetermined set of variables. The SPSS TwoStep procedure is one of many approaches to conducting a cluster analysis. It contains an accurate and efficient algorithm for identifying groups within a diverse population of cases. During the first step of the procedure, each case is examined sequentially to determine if it should be grouped together with previous cases or treated as the beginning of a new, independent group. In the second step, the most similar of these preliminary groups are combined into a smaller number of aggregate clusters. To identify permissive versus restrictive periods, I used this clustering procedure in the following way: Every half-decade between 1820 and 1999 was treated as a case2 ; each case was categorized based on its standardized scores on the legitimacy and necessity norm indices; case similarity on these scores was measured by squared Euclidian distance; the cases were combined using the Ward method; and Schwarz’s Bayesian Information Criterion was employed to select the optimal number of clusters. Table 6.1 presents the results from the cluster analysis. Two groups were identified. The first, which encompassed 66.7% of the cases, possessed mean and median scores that represented permissive interpretations of legitimacy and necessity norms. The second group, which contained 33.3% of the cases, had measures of central tendency that suggested a restrictive interpretation of these norms. Diagnostic tests indicated that the quality of the cluster solution was good: Both of the variables contributed to the cluster solution,3 the ratio of the largest to the smallest cluster size was under 3.00, and the silhouette coefficient indicated that each cluster was tight and distinct. Table 6.1 Cluster analysis results

Permissive normative order

Restrictive normative order

1820–1934, 1950–1954

1935–1949, 1955–1999

Cluster membership Cluster size (%)

66.7

33.3%

Median scores: Legitimacy index

1.93

3.39

Necessity index

2.68

3.78

Legitimacy index

2.01

3.38

Necessity index

2.72

3.74

Mean scores:

N = 36 Ratio of cluster sizes (largest to smallest) = 2.00 Silhouette measure of cohesion and separation = .60

110

6 Classifying International Normative Orders

Cluster Stability Although the results from these preliminary diagnostics look promising, it is still advisable to assess the stability and validity of the cluster solution because different clustering procedures can generate different results when applied to the same data set. One way to evaluate stability is by applying other clustering procedures to the data in order to see if they produce equivalent results. Two alternatives are the iterative and the hierarchical agglomerative partitioning methods. When the data were reanalyzed with these methods, the results closely matched those reported in Table 6.1. The cluster analysis solution from the TwoStep procedure was perfectly associated with the solution generated by the iterative k-means procedure (Kendall τ b = 1.00) and strongly associated with the solution produced by the hierarchical agglomerative method (Kendall τ b = .82), regardless of whether it employed Chebyshev or Minkowski distance metrics.

Cluster Validity Moving next to assessing the validity of the analysis results, one widely recommended method entails trying to replicate the cluster solution with variables relevant to the theory driving the research but not employed to form the groups identified by the TwoStep procedure. Finding data on such “external” variables can be difficult. Fortunately, previous TRIP publications contain data on two international norms that are suitable candidates: commitment norms and nonintervention norms (see Kegley and Raymond 1990; Kegley, Raymond, and Hermann 1998).4 These norms provide meaningful external criteria for evaluating the validity of the cluster analysis results because, like legitimacy and necessity norms, they are regulatory, actoruniversal norms that vary along a continuum ranging from permissive to restrictive. If the scores registered by each quinquennial case on commitment and nonintervention norm indices predict whether it belongs in the permissive or restrictive groups derived from the legitimacy and necessity norm indices, confidence in the validity of the cluster solution would be warranted. Let us begin by defining commitment norms. How foreign policy decision makers interpret promissory obligations affects the nature of international accords. A flexible interpretation gives national leaders the leeway to extricate themselves from burdensome commitments. The norm rebus sic stantibus (things standing thus) provides that freedom by allowing one side in an agreement to terminate its commitment unilaterally if a fundamental change occurs in the circumstances that existed at the time the agreement was reached. For example, when in 1870 Russia declared that it was no longer bound by the provisions of the 1856 Treaty of Paris that pertained to the neutralization of the Black Sea, its leaders cited the changed circumstances resulting from political events in the Balkans and the development of ironclad warships as their justification. According to supporters of rebus sic stantibus, norms facilitating the

Identifying Normatively Permissive and Restrictive Periods

111

disavowal of potentially onerous commitments reduce the probability that states will become entangled in conflicts they could otherwise avoid. Furthermore, the uncertainty created by this possibility breeds caution in others, inhibiting risk taking by allies who are unsure of their partner’s loyalty. Contrary to the argument that an elastic interpretation of promissory obligations decreases militarized conflict, diplomats and legal scholars who support the norm pacta sunt servanda (agreements must be kept) claim that binding commitments engender peace by adding predictability to the relations among nations, which reduces miscalculations and rash behavior by adversaries. When commitments are fulfilled, so this line of reasoning goes, confidence in the word of others rises. Honoring pledges clarifies expectations and enhances credibility; breaking them causes both friend and foe to question even the most solemn oath. In order to measure changes over time in the content of commitment norms, I coded each treatise in the TRIP data set on a three-point scale. A value of 1.00 was assigned when the author concluded that rebus sic stantibus constituted the dominant commitment norm at the time that the treatise was written, a value of 2.00 was recorded when neither rebus sic stantibus nor pacta sunt servanda was paramount, and a value of 3.00 was given when pacta sunt servanda represented the dominant commitment norm. After completing the coding, I calculated the mean score for all of the treatises published during each half-decade between 1820 and 1999 to produce time-series data that ranged from a permissive to a restrictive interpretation of promissory obligations. Turning next to nonintervention norms, the duty to refrain from interfering in the internal affairs of other states has been a corollary to the principle of sovereignty since the Peace of Westphalia. Nevertheless, it is a circumscribed duty. Exemptions allowing military intervention into the domestic affairs of other states abound. The most permissive interpretation accepts intervention for multiple purposes. First, as exemplified by the 1846 intervention of Great Britain and Spain in Portugal, force is accepted in permissive normative orders as a way to modify the authority structure of a target government. Second, as illustrated by the 1862 intervention of Great Britain, France, and Spain in Mexico, force is allowed as a means of collecting debts from delinquent states. Third, as shown by the 1860 intervention of France in Lebanon, force is approved for protecting people living in foreign countries from human rights abuses. As the international normative order becomes more restrictive, fewer purposes are deemed acceptable. In the most highly restrictive normative orders, exemptions from the duty not to intervene in the domestic affairs of other states are limited to cases where a state voluntarily requests external assistance, or a prior treaty authorizes intercession. To measure changes in the content of nonintervention norms, each treatise in the TRIP data set was coded on a five-point scale. A value of 1.00 was given if the author concluded that a highly permissive interpretation of nonintervention existed at the time that the treatise was written, one allowing military intervention for regime change, debt collection, humanitarian purposes, as well as when granted by a treaty or requested by the lawful government of the target state. A slightly less permissive interpretation, which accepted all of these rationales except regime change, received

112

6 Classifying International Normative Orders

a scale score of 2.00. Moving to more restrictive interpretations, values of 3.00 and 4.00 were assigned, when norms allowed unilateral and collective humanitarian intervention, respectively. Finally, a value of 5.00 was given to a highly restrictive interpretation of nonintervention, when armed intervention was limited to cases where it was authorized by a treaty or requested by a lawful government. Having described two variables that were not used in the original cluster analysis but reflect the degree of restrictiveness in the international normative order, we can now take up the question of whether they accurately predict which quinquennial periods the cluster solution were designated as permissive versus restrictive. If these external variables assign each half-decade to the same group that it was placed in by the cluster solution, we would have confidence in the validity of the periodization and be prepared to investigate whether there were statistically significant differences between the two groups in the incidence and seriousness of war. Discriminant function analysis is a multivariate statistical technique that works well in conjunction with cluster analysis (Bailey 1994, pp. 73–74). It uses a linear combination of predictors to distinguish among mutually exclusive groups whose membership is known. In order to replicate the pattern of group membership reported in Table 6.1, I conducted a discriminant analysis using the indices of commitment and nonintervention norms to predict whether a given half-decade between 1820 and 1999 was permissive or restrictive, as defined by the original cluster solution. Preliminary tests indicated that the prerequisites for this statistical technique were satisfied: Each case belonged to one of two mutually exclusive groups, the number of cases in the smallest group exceeded the number of predictor variables (12 > 2), the ratio of cases to predictor variables (18:1) was adequate, the predictor variables were not highly intercorrelated (r = .21), and the covariance matrices were sufficiently homogeneous across groups (Box’s M = 5.50, p = .02).5 Table 6.2 Discriminant function analysis results Summary of canonical discriminant functions Function

Eigenvalue

Canonical correlation

Wilks’ Lambda

χ2

df

p-value

1

.84

.68

.54

20.18

2