International law is a pragmatic tool and a junior partner of diplomacy. George Kennan, in the 1950s, slammed the growing glorification of international legalism as one of the greatest mistakes in international relations. Legalism is based on idealist philosophies and ignores the empirical effects of these so-called laws.

I’ve discussed why diplomacy is more important before in Conflicts of Interest and laws pragmatic utility in regulating customary cooperation.

When international law becomes an idealistic venture to reshape the behavior of nation-states, imposes static moral values onto an anarchic world that is contantly changing. This encourages revolutionary earthquakes to overturn the world order.

From George Kennan’s Lecture “Diplomacy in the Modern World”:

“I see the most serious fault of our past policy formulation to lie in something that I might call the legalistic-moralistic approach to international relations. This approach runs like a red skein through our foreign policy of the last fifty years. It has in it something of the old emphasis of arbitration treaties, something of the Hague Conferences and schemes for universal disarmament, something of the more ambitious American concepts of the role of international law, something of the League of Nations and the United Nations, something of the Kellogg Pact, something of the idea of a universal “Article 51” pact, something of the belief in World Law and World Government. But it is none of these, entirely.

It is the belief that it should be possible to suppress the chaotic and dangerous aspirations of governments in the international field by the acceptance of some system of legal rules and restraints. This belief undoubtedly represents in part an attempt to transpose the Anglo-Saxon concept of individual law into the international field and make it applicable to governments as it is applicable here at home to individuals….Remembering this, people are unable to understand that what might have been possible for the thirteen colonies in a given set of circumstances might not be possible in the wider international field.

It is the essence of this belief that, instead of taking the awkward conflicts of national interest and dealing with them on their own merits with a view to finding the solutions least unsettling to the stability of international life, it would be better to find some formal criteria of a judicial nature by which the permissible behavior of states could be defined…. Behind all this… lies the American assumption that the things for which other peoples in this world are apt to contend are for the most part neither creditable nor important and might justly be expected to take second place behind the desirability of an orderly world, untroubled by international violence. To the American mind, it is implausible that people should have positive aspirations, and ones that they regard as legitimate, more important to them than the peacefulness and orderliness of international life.

If they were to do this, the reasoning runs, then the troublesome and chaotic manifestations of the national ego can be contained and rendered either unsubstantial or subject to easy disposal by some method…

The problem is that people extrapolate a mechanism – like domestic law – into a sphere where it makes no sense. Domestic law is highly centralized with an organized government to create edicts and issue sanctions to punish violations. Domestic law requires coercion to work.

International law is decentralized primitive law. The laws are extremely vague and mostly formalize and regulate normal customary practice of states. It has no central enforcement mechanism, so there is nothing to prevent legal violations. Every state can only rely upon self-help.

Treating Internation law like it is just an expanded form of domestic law does not work. States will continue to disobey the non-binding laws whenever there is a conflict of interest. The fact that many legalists reject the use of coercion in international relations is strange, since their model – domestic law – is founded on coercion.

Kennan continued by explaining the “outstanding weakness” of internationa legalism:

In the first place, the idea of the subordination of a large number of states to an international juridical regime, limiting their possibilities for aggression and injury to other states, implies that these are all states like our own, reasonably content with their international borders and status… Actually, this has generally been true only of a portion of international society. We tend to underestimate the violence of national maladjustments and discontents elsewhere in the world if we think that they would always appear to other people as less important than the preservation of the juridical tidiness of international life.

Second, while this concept is often associated with a revolt against nationalism, it is a curious thing that it actually tends to confer upon the concept of nationality and national sovereignty an absolute value it did not have before. The very principle of “one government, one vote,” regardless of physical or political differences between states, glorifies the concept of national sovereignty and makes it the exclusive form of participation in international life. It envisages a world composed exclusively of sovereign national states with a full equality of status. In doing this, it ignores the tremendous variations in the firmness and soundness of national divisions: the fact that the origins of state borders and national personalities were in many instances fortuitous or at least poorly related to realities. It also ignores the law of change. The national state pattern is not, should not be, and cannot be a fixed and static thing. By nature it is an unstable phenomenon in a constant state of change and flux…

The function of a system of international relationships is not to inhibit this process of change by imposing a legal strait jacket upon it but rather to facilitate it: to ease its transitions, to tempter the asperities to which it leads, to isolate and moderate the conflicts to which it gives rise, and to see that these conflicts do not assume forms too unsettling for international life in general. But this is a task for diplomacy, in the most old-fashioned sense of the term. For this, law is too abstract, too inflexible, too hard to adjust to the demands of the unpredictable and unexpected.

International legalism does not, and cannot, handle the imprecision and nonlinear systems of the world. It is based on idealist deductions rather than empirical observations of complex human behavior. It is simplistic and has never worked in practice.

The greatest problem is its inflexibility. It declares that the temporary status quo is morally good. The vast majority of states and peoples of the world disagree with the status quo, and their pragmatic interests lead them to challenge the existing regime. Violently, if need be.

Nor is the nation-state system a permanent fixture in the international arena. Over the course of history, it existed only for a tiny fraction of time, and already seems to be fading in power.

Here are two problems which are easily exploited with legalism:
First, the legalist structure ignores the various covert and subversive means which a state can coercively attack its neighbors. Legalism actually provides a cover to encourage this form of violence and coercion:

[The] concept of world law ignores the means of international offense – those means of the projection of power and coercion over other peoples – which by-pass institutional forms entirely or even exploit them against themselves: such things as ideological attack, intimidation, penetration, and the disguised seizure of the institutional paraphernalia of national sovereignty. It ignores… the device of the puppet state.

It also rests on the hypothesis of collective action – an idea without empirical backing:

Finally this legalistic approach to international relations is faulty in its assumptions concerning the possibility of sanctions against offenses and violations. In general, it looks to collective action to provide such sanction against the bad behavior of states. In doing so, it forgets the limitations on the effectiveness of military coalition. It forgets that, as a circle of military associates widens in any conceivable political-military venture, the theoretical total of available military strength may increase, but only at the cost of compactness and ease of control…”

Indeed. Alliances are unreliable. A large alliance has greater differences of interests and becomes more fragile and prone to failure than small compact alliances. The idealist notion of collective action has the unproven assumption that all allies share the exact same goals.

Without collective action, legalism has no enforcement mechanism. Internationa law is moralistic sound and fury, signifying nothing.

Kennan’s notes that the gravest fault of international legalism is

…the inevitable association of legalistic ideas with moralistic ones: the carrying over into the affairs of states of the concepts of right and wrong, the assumption that state behavior is a fit subject for moral judgment.

“It is a curious thing, but it is true, that the legalistic approach to world affairs, rooted as it unquestioningly is in a desire to do away with war and violence, makes violence more enduring, more terrible, and more destructive to political stability than did the older motives of national interest.

The international system has regular phase transitions where the old order is overturned to accomodate new economic, technological, and political realities. Attempts to stop this process, much less label transitions as evil, are dangerous.

Law is not about morality. To label the status quo practices as a permanent fixture founded upon so-called “natural” laws only encourages more extreme violence to overturn the system and more extreme violence to defend it. It becomes a moral duty to uphold the sacrosanct “law” through maximum force.