Legal Framework for International Business

III. Processes

A realist perspective on the emergence and maintenance of international norms, many of which are legalized, follows from its understanding of the key actors in international politics and the nature of the international system. Realists, with their focus on state power and their skepticism of legal approaches to world politics, would understand the emergence of legal norms, rules, and institutions as being largely a product of the interest and influence of powerful states. In its most cynical form, international law and its application can be viewed as a form of victor’s justice that reflects the interests of the powerful. In this view, the laws of war codified in the late nineteenth century represent the interests and views of the powerful Christian states; norms of decolonization and self-determination can be viewed as emerging out of the US challenge to the old order of European empires; the international legal order embedded in the United Nations can be viewed as a codification of both the power structure (membership of the UN Security Council) and the normative commitments (liberal individualism as a focus of human rights law) that reflected US interests at the end of World War II.

Thus a realist would view the creation, maintenance, and frequent compliance by states with international legal rules regarding, for example, the use of force, as a matter of power and self-interest. Realists would argue that states create rules limiting use of force and conduct during armed conflict for self-interested reasons and will similarly feel no compunction about violating those rules when they cease to be in their interest. If a state sees a benefit in breaking the rules against the use of force, perhaps because it doesn’t expect any sanction to be imposed and is sufficiently powerful to use force successfully, they would argue that it is likely to do so. Similarly, realists argue that states only agree to international humanitarian law (IHL) when it coincides with their own interest. States agree to the Geneva Convention (the four treaties forming the basis of international humanitarian law) in order to avoid having their own soldiers tortured, or civilians intentionally targeted. However, they would argue that powerful states are just as quick to violate such rules when they view it as being in their own self-interest to do so. From a realist perspective, this might explain why the United States would appear to have ignored international humanitarian law in its pursuit of the ‘war on terror’ during the years of the Bush administration.
Realists make similar arguments about the creation of international legal institutions to respond to war crimes and atrocities. For example, they might explain prosecutions after World War II in the Nuremberg Trials as ‘victors’ justice’. Similarly, realists could argue that the creation of a tribunal to prosecute crimes in the former Yugoslavia stemmed primarily from the interests of Western states in a stable Europe rather than the pursuit of justice. Some realists claim that states only sign on to human rights obligations when they serve their interests, or impose no real constraints. For example, simply reporting levels of human rights compliance to monitoring committees may not be viewed as a particularly onerous obligation for states and this would explain why it is relatively widespread.