13 Jul Size Matters
Louis Renault (1843-1918), one of the founders of modern international law in France, once commented that “the small nations … are most frequently the true representatives of justice, precisely because they do not have the strength to impose injustice.”
This statement strikes me as patently false. One can name the practice of dozens of small countries that undermine the proposition. Of course, there are numerous countries small in size with shadows that loom large in promoting justice. But I rather doubt there is a correlation between size and justice.
I would be most curious what others think. Is there a particular mindset that small nations have such that they tend to promote justice in ways that the more powerful and larger nations do not? When it comes to international law, does size matter?
Size is important but not in itself. The real question is what pressures governments to be more accountable to the people that they govern. Governments in large and small countries rather routinely attempt to reduce the level of accountability (for good and bad reasons). But governments in larger countries often can mobilize more resources to maintain the level of accountability that they choose to impose, and that we may find inappropriate. Moreover, they are also often less susceptible to pressures from the international community. Consider the difference in the way the Estonian and Russian governments have acted after the fall of the Soviet Union. The Estonian government had good reason to adopt western standards rapidly in order to be accepted by the west because of a fear of being reabsorbed into Russia. And Russia? Well … that is another story isn’t it?
Great question, Roger.
I agree with Michael that size is an important, but not the sole, variable.
I do think we need to specify what type of size is important. Unlike in Renault’s day, physical size is less important as opposed to size of power projection. Those two aspects of size used to be closely linked (if not synonymous) but there are now so many other sources of power besides how much territory you have (economic productivity, oil, and technological level of your armed forces, etc.) that acreage is no longer crucial to size of power projection. (Witness Israel, Japan, Singapore, and Venezuela as four examples.)
Moreover, I would construct the propostion with a different emphasis: it is not that “small” states are more just, but that “large” (read: “powerful”) states are more able to ignore the rules that they disagree with. It doesn’t mean that they will do so more often, just that they can flout more consistently, if they want to.
I don’t know statistically whether “large” states (as a group) violate the rules of international law more often than small states, although I have a gut feeling that they do. However, I try to temper this with the realization that we are more likely to notice transgressions by large states than by small states. Anyone pay much attention to the foreign policy of Burkina Faso lately? So whether this is a statistically significant divergence in state practice or an issue of overreporting/underreporting, I do not know and would be curious as to what others think.
Chris raises the more significant point: ‘it is not that “small” states are more just, but that “large” (read: “powerful”) states are more able to ignore the rules that they disagree with.’ This of course brings to mind the P-5 (‘Great Powerts’) of the UN Security Council and those who have steered the course of Bretton Woods institutions. As Paul Kennedy says, “to any reasonable person nowadays, it is outrageous that a mere 5 of the 191 sovereign states that make up the United Nations have special powers and privileges.” Or, to use the terminology of Chris’s recent paper, we might speak of regional hegemons and the one global hegemon, namely, the U.S. (e.g., see his discussion of the ‘United States Imperium,’ in “Whose Public, Whose Order? Imperium, Region, and Normative Friction,” The Yale Journal of International Law, Vol. 32, 2007: http://ssrn.com/abstract=989984)
And then we might examine whatever truth is captured in China Mieville’s proposition that “International law embodies the violence of colonialism and the abstraction of commodity exchange. It is not that the contribution of non-Western polities to international law has been obscured by colonialism, nor that (Western) international law’s spread across the world is the result of colonialism: it is that international law is colonialism.” Or to put it differently: “the power dynamics of political imperialism are embedded within the very juridical equality of sovereignty.”
Take a look at Kagan’s “Of Paradise and Power” for an excellent discussion of this. Small states, as Chris and Patrick note, are less able to get away with violations of international law. But they also are more likely to try to use IL as a tool to restrain the powerful states. Weaker states pick law as a strategy as a rational approach to compensating for their own weaknesses on other fronts. Few states exhibit what one would call a true moral commitment to international law; that is adhering to IL when it is patently not in their national interest to do so. That is the true test of a real commitment to law.
Seth:
I agree that Kagan has some useful insights on strong state/weak state relations and how international law can be deployed as a means to tie down Gulliver, so to speak.
However, I want to quibble with your formulation that a “real commitment to law” is to adhere to it even “when it is patently not in [your] national interest…” I do not think that is an accurate description of how and why either individuals or states comply with law.
Consider individuals. Is it in your personal interest to refrain from stealing a loaf of bread if you are hungry? One could say that it would be in your interest to have that loaf. However, there may be a chance (however slim) of getting caught and the cost of getting arrested outweighs the value of the bread. And so you don’t steal because it is against the law and consequently because the costs of noncompliance outweigh the values of noncompliance. The whole question of whether compliance in a given siutation is or is not in one’s interest can be highly contested and open to question, thus making any assessment of whether or not there is a “real commitment” to law in a given instance rather difficult to discern.
Moreover, even if it is in your interest (properly understood) not to steal (that is, to comply), no one would ever say that the domestic law against stealing is not “really” law. At this point “real commitment” is more a matter of moral theory than of assessing what is or is not law (or an effective law, for that matter).
(For another example ask whether an oft-broken highway speed limit has a true moral commitment. Does it matter? Is it any less a law?)
Besdies fears of enfrocement, there are other ways that compliance can be achieved. At times, there is compliance because an actor has been socialized to accept the law as being a just norm, regardless of our short or long term interests.
As Derek Jinks and Ryan Goodman have argued, sometimes states follow laws not because they “believe” in them, but because they are concerned about social costs of not complying (even if that social cost does not translate to any material detriment).
In short, there are many different paths towards compliance and which path is relevant in any given example does not make a particular law any less a “law.” Sometimes compliance is due to an effective enforcement mechanism, other times it is due to socialization or acculturation.
We implicitly understand this with regards to domestic law, but some refuse to extend this analysis to international law. Conversely, if domestic law were held to the same standard to which some hold international law–that is that there is a real commitment only when it is against our interest to follow the law– I do not think domestic law would come out looking so robust.
I recommend everyone to read the full context of the quote:
In other words, Louis Renault was discussing the role that small states can play in international conferences codifying international law (in this case, the Hague Conferences of 1899 and 1907). It was not as such about whether smaller states are fairer in their foreign policy than big states, but about their role at international conference where decision making is governed by unanimity between equal states. The fiction of sovereign equality grants these smaller nations more power than they would otherwise have in reality – even though Renault warns them to exercise self-restraint. It is not unlikely at all that these smaller states use their relatively stronger position at these conferences to build in guarantees for the weaker, as they are more likely to end up in that position than stronger states. Rather than calling them the “true representatives of justice”, I would however label them the “true representatives of the weaker”. Renault’s underlying assumption probably was that the equal position in the negotiations between the weaker and the stronger results in the development of better balanced and more “just” rules at these codifying conferences.
Read in its full context, I therefore think Renault made a plausible argument and I find Professor Alford’s claim that Renault’s statement is “patently false” exaggerated.