Christian Reus-Smit has been at the forefront of a novel constructivist approach to the relationship between international law and international politics, one which avoids the formalism of international legal accounts, on the one hand, without reducing law to an epiphenomenon of politics, on the other. Rather, he describes the relationship as “mutually constitutive” (2004: 14) in the sense that “politics has constituted the international legal system, but it is in turn transformed by that system” (2004: 36). An example of this (though not one Reus-Smit himself makes) is customary international law: since there is no world legislative system which can create universally-accepted international law, much of it is derived from customary state practice, and hence becomes customary international law.
Phillip Allott describes this kind of law as arising “out of the ideal and real self-constituting of society as a particular kind of residue of the past” which is the product of “a dialectic of
53 And sometimes by states who do not – and these states face sanctions for the breach of the international law (e.g. Iraq’s invasion of Kuwait).
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practice” (2000: 76). An example of this kind of law is diplomatic immunity, which has developed historically through a dialectic combination of practice and legislation.
Reus-Smit’s argument is that law, therefore, is not simply constraining, but it is also constitutive; states have created a ‘legal realm’ which is understood by actors as having an independent existence. It therefore matters to these actors “whether a problem or issue is defined as political or legal” (2004: 38). Legal problems are conceived as being of a different nature than political ones, and once the definition is made, “the narrowly defined politics of power and self-interest is delegitimised and communicative action is empowered” (2004: 38).
As he puts it:
The discourse of politics is now replete with the language of law and legitimacy as much as realpolitik, lawyers are as central to military campaigns as strategists, legal right is as much a power resource as guns and money, and juridical sovereignty, grounded in the legal norms of sovereignty, is becoming a key determinant of state power.
(Reus-Smit, 2004: 2)
In other words, a state will frame its claims in the language of law, in order to associate its “interests and strategies with the norms of international society, conscripting the power of social opinion to one’s cause” (2004: 38). Since territorial sovereignty is fundamental to the very existence of the state, states can thus be expected to engage in such behaviour in territorial disputes. Legal norms can be deployed to make and explain decisions, and to justify actions. Dino Kritsiotis takes up this idea and applies it to the international use of force: he argues that international legal argument has become a crucial feature in force,
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deployment insofar as when “states use force against other states, they also use international law to define and defend, argue and counter argue, explain and rationalise their actions”
(2004: 47, emphasis in original). In this sense, international law is much more than a set of rules; rather, it is a “discursive exercise, in which states are able to make, address, and assess justifications”. Reus-Smit sums up the argument by suggesting that this framework “helps us to see how the modern liberal politics has conditioned the institution of international law, and how the distinctive features of that institution shape politics in distinctive ways” (2004: 44).
This approach opens up a new and exciting space for thinking about the relationship between law and politics by recognising that, once defined as within the ‘legal realm’, the nature of international issues, and how they can be dealt with, is changed. Having said this, though, Reus-Smit’s case for the power of international law seems to be somewhat overstated.
There are certainly occasions when an issue moving into the legal realm transforms its very nature, and the range of options for state action is altered, or at least the likelihood of certain actions is reduced. International trade law, for example, makes it less likely that a state will respond to a recession by attempting to boost domestic production through tariffs. However, as we saw with the imposition of steel tariffs by the US in 2002, it does not make it impossible.54 In the realm of power politics, again law plays a role, and the delegitimisation of the invasion of Iraq by the UK and the US cost both states diplomatically, but it did not prevent the war from taking place, and, as has subsequently become clear, the arguments and justifications – Reus-Smit’s ‘communicative action’ – which were put forward ultimately simply obfuscated the brute facts of power politics. As Watts eloquently puts it, “if politics is the art of the possible, then international law is merely the art of the plausible” (2008: 8).
54 Although it is interesting that the tariffs did not last very long – in fact, international trade law does seem to favour those who have the stronger legal resources, as Reus-Smit suggests.
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Another issue with the framework is the way in which Reus-Smit deals with legitimacy and fairness: his conception of the legitimacy of international law as being anterior to any state’s individual conception of the fairness or legitimacy of particular aspects of it (2004: 42-3) does not actually help us in understanding to why states have problems with both the fairness and legitimacy of international law, and why some states (e.g. North Korea) seem to reject the concept of international law altogether. By stating that “the constitutional structure of international society . . [is] the bedrock of international legitimacy” (2004: 43), Reus-Smit runs the risk of overlooking the fact that states can and do both simultaneously accept and reject the legitimacy of international law and international society, as can be argued in the case of both the United States under the George W. Bush administration and China under Mao.55 This approach, then, offers us no more than an uncontested conception of international law – law that is, which the author fails to problematise. Customary international law is, as we have seen, “a kind of residue of the past” – a past in which great powers dominated and decimated peoples in every corner of the globe. Thus, the state practice which gave rise to customary international law was hardly ‘liberal’ in the sense that Reus-Smit uses the term – in fact, ‘liberalism’ in the history of international law is for many a deeply tainted term, used as a justification for war and oppression, particularly of the weak.
Customary international law is not the only source of law which has its genesis in this period of high power politics: as we shall see later in this section, the law governing territorial disputes crystallised during the period when ‘might was right’. This creates major problems of legitimacy for international law, problems which run to the heart not only of Japan’s territorial disputes, but to disputes globally.
55 Indeed the logic of pure realism leads to the conclusion that, as soon as China feels that it can overturn the international society, it will (see for example the work of John Mearsheimer, 2001).
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Bearing these caveats in mind, Reus-Smit’s work does nevertheless open up a new way of looking at the relationship between international law and international politics, providing us with an approach which recognises that the law can and does condition and constitute politics, and an approach which is new and promising. Territorial disputes are ideal candidates for analysis using this approach as they are neither defined as entirely legal nor entirely political. Rather, the territorial dispute enters the legal realm described by Reus-Smit above, in which the mutually constitutive relationship between law and politics generates options for states which are not necessarily ‘legal’ but which are perceived to be derived from the law, and which thus carry weight within this legal realm.
So what is this ‘legal realm’ of territorial disputes, and what is the range of options open to the states involved? We must begin with the assumption that the ultimate goal of a state in a territorial dispute is to acquire complete and total undisputed sovereignty and control over that territory. Of course, ulterior motives may linger, as for example, the continuation of the dispute may serve certain domestic actors’ purposes. In other cases, a state may realise the impossibility of ever gaining complete sovereignty over the entire territory but nevertheless claim it in the hope of gaining sovereignty over some of it, or because of the effect of withdrawing the claim on other territorial disputes (these possibilities are taken account of in the approach this dissertation employs, see ‘value of the territory’, this chapter, Section 2.8); but, fundamentally, a territorial dispute cannot exist unless two or more states disagree over sovereignty over a given territory.
Acquiring sovereignty over the territory is not the same as occupying it. Rather, it is acquiring the ability to exercise sovereignty over the territory – a key difference elaborated in the coming pages. From this perspective, then, the exercise of sovereignty becomes the
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crucial issue; and, of course, the very nature of a territorial dispute means that sovereignty is contested. Extending the logic of this statement, we can go two steps further: (a) each state in a dispute seeks to exercise sovereignty over the disputed territory, and (b) each state seeks to prevent the opposing state(s) in the dispute from exercising sovereignty over the territory.
Therefore, in a territorial dispute, states enter what this dissertation calls the ‘sovereignty game’, in which both sides employ various resources and techniques in order to exercise sovereignty over the disputed territory and/or prevent the other state(s) from doing the same.
However, before expanding upon the dynamics of the sovereignty game – the rules of the game, the techniques and resources which states utilise, as well the motivations for doing so – we must first understand the nature of sovereignty itself, since acquiring sovereignty is the very basis of the sovereignty game.