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A normative enquiry in international relations: the case of ‘pacta sunt servanda’*

Published online by Cambridge University Press:  26 October 2009

Hidemi Suganami
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Extract

A study of ethics must be regarded as incomplete if it does not offer tools for analysing moral problems arising in the international context, particularly in an age of growing interdependence between the peoples of the world. Similarly, a study of international relations must be thought to be imperfect if it leaves out normative questions.

To this it may be objected that International Relations is an empirical discipline, and that it can legitimately leave normative considerations to moral philosophers. However, such a division of labour is unfortunately more likely to result in mere division rather than efficient co-operation. Moreover, international relations, the subject-matter, is logically, as well as historically, prior to International Relations, the academic discipline. Therefore, a study of international relations, undertaken by International Relations experts, cannot be claimed to be complete if it neglects those aspects of the subject-matter which have occupied the minds of many thinkers who do not consider themselves as IR specialists.

Type
Research Article
Information
Review of International Studies , Volume 9 , Issue 1 , January 1983 , pp. 35 - 54
Copyright
Copyright © British International Studies Association 1983

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References

1. Northedge, F. S., The International Political System (London, 1976), p. 9.Google Scholar

2. Grotius, De lure Belli ac Pads tr. by Kelsey, F. W. (Oxford, 1925), Prolegomena, section 58.Google Scholar

3. Hare, R. M., Essays on the Moral Concepts (London, 1972), p. 48CrossRefGoogle Scholar. This introductory discussion closely follows Chapter 4, Ethics, of Hare's book, and the main line of argument of this paper is based on his philosophy. See his Freedom and Reason (Oxford, 1963)Google Scholar; Applications of Moral Philosophy (London, 1972)Google Scholar; and ‘The Promising Game’ in Foot, P. (ed.), Theories of Ethics (London, 1967).Google Scholar

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6. The views held by the nineteenth century positivists are discussed in Nussbaum, A., A Concise History of the Law of Nations rev. ed. (New York, 1954), pp. 232–6Google Scholar; Lauterpacht, H., The Function of Law in the International Community (Oxford, 1933)Google Scholar, Chapter XX; Brierly, J. L., The Basis of Obligation in International Law and Other Essays selected and edited by Lauterpacht, H. and Waldock, C. H. M. (Oxford, 1958)Google Scholar, Chapter 1.

7. Kelsen, H., The Pure Theory of Law tr. by Knight, M. from the 2nd (rev. and enlarged) ed. (London, 1970), pp. 193–5.Google Scholar

8. Kunz, J. L., The Changing Law of Nations (Columbus, Ohio, 1968)Google Scholar, Chapter IV, The ‘Vienna School’ and International Law, p. 90.

9. Kelsen, H., The Pure Theory of Law, p. 216, n. 80.Google Scholar

10. Kelsen, H., The Principles of International Law, 2nd ed. rev. by Tucker, R. W., (London, 1967), p. 564.Google Scholar

11. Kelsen, H., General Theory of Law and State tr. by A. Wedberg (New York, York), pp. 116–17.Google Scholar

12. Kelsen himself appears to have remained uncertain as to whether the basic norm can be said to be presupposed in the same sense both by the practitioner of law and its academic interpreter. See The Pure Theory of Law, p. 204, n. 72; Ross, A., Directives and Norms (London, 1968), esp. p. 158.Google Scholar

13. Kelsen, H., What is Justice? (London, 1971), esp. p. 24.Google Scholar

14. G. E. M. Anscombe, ‘Brute Facts’, Analysis (1958), J. R. Searle, “How to Derive ‘Ought’ from ‘Is’ ”, reprinted in P. Foot (ed.), Theories of Ethics.

15. Manning, C. A. W., The Nature of International Society reissue (London, 1975), p. xix.CrossRefGoogle Scholar

16. Ibid., pp. xxi-xxii.

17. Manning, ‘The Legal Framework in a World of Change’ in Porter, B. (ed.) The Aberystwyth Papers: International Politics 1919–1969 (London, 1972), p. 306.Google Scholar

18. Manning, The Nature of International Society, p. 115. Unlike Kelsen's theory of law, which is concerned purely with the logical structure ofjuristic thinking, Manning's explanation contained an important sociological insight. See The Nature of International Society, pp. 107–8, and his discussion of the impact of the Goa incident of 1961 in the preface to the reissue of that book.

19. This may be contrasted with John Searle's claim to have derived an ‘ought’ from an ‘is’ with reference to the case of promise-making. See note 14 above.

20. The following is based on Hart, H. L. A., The Concept of Law (Oxford, 1961), pp. 189Google Scholar ff.

21. It is important to note that by ‘natural necessity’ is not meant ‘causal necessity’ The ‘necessity’ to include Hart's ‘minimum content of Natural Law’ in a system of positive social norms is ‘natural’, not in the sense that human beings are pre-determined, neurophysiologically or otherwise, to do so, but in the sense that, in their habit of teleological thinking, it appears to them ‘natural’ to fulfil this necessity.

22. See, for instance, Bull, H., The Anarchical Society (London, 1977), esp. Part 3.CrossRefGoogle Scholar

23. See Hare, R. M., Freedom and Reason.CrossRefGoogle Scholar

24. The word ‘seriously’ is emphasized, for, obviously, it is not difficult to say anything, if it is merely a matter of moving one's mouth and producing relevant sounds in the right order.

25. See my “A Note on the Origin of the Word international’ ” on the relationship between ius gentium and international law. British Journal of International Studies, Vol. 4 (October, 1978), pp. 226–32.CrossRefGoogle Scholar

26. It is conceivable that a leader of a country A, contemplating breaking a treaty between A and another country B, argues as follows: it is right for me to take a decision involving the breach of this treaty, not because the people of B are foreigners, but because they are black, they have hooked noses, etc. This kind of assertion can be countered as before. We may ask this leader whether he can seriously adhere to the view that such features of the people of B are morally relevant, if he realizes that it is logically possible for him and his compatriots to have these features themselves. For a full discussion of this issue, see Hare, R. M., Freedom and Reason, pp. 93Google Scholar ff.

27. Note, however, that Article 52 of the Vienna Convention of the Law of Treaties of 1969 provides as follows: ‘A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’

28. Thus Article 62 of the Vienna Convention permits terminating or withdrawing from a treaty, other than those establishing a boundary, when there is & fundamental change of circumstances, only if those circumstances were an essential basis of the original consent of the parties, and if the effect of the change is radically to transform the extent of obligations required by the treaty. The fundamental change must not be the result of a breach of international legal obligation by the party invoking it.

29. What can ‘we’ do if ‘they’, culturally so different from ‘us’, do not share what ‘we’ regard as the logical rules governing the use of moral concepts? This is one of many questions which I was unable to examine in this paper. I thank Andrew Linklater for alerting me to this important issue.

30. See, for instance, Stone, Julius, ‘De Victoribus Victis: The International Law Commission and Imposed Treaties of Peace’ in Virginia Journal of International Law, Vol. 8 (1968)Google Scholar; and H. Bull, Th e Grotian Conception of International Society’ in Butterfield, H. and Wight, M. (eds.) Diplomatic Investigations (London, 1966).Google Scholar