Vol. 16 No. 10 (October, 2006) pp.863-867

 

INTERNATIONAL RELATIONS – THE PATH NOT TAKEN:  USING INTERNATIONAL LAW TO PROMOTE WORLD PEACE AND SECURITY, by Thomas J. Schoenbaum.  New York:  Cambridge University Press, 2006.  336pp.  Cloth. $75.00/£40.00.  ISBN: 0521862809.  Paper. $29.99/£16.99.  ISBN: 0521681502.  ebook format. $24.00.  ISBN: 0511223242.

 

Reviewed by Robert J. Beck, Department of Political Science and Center for International Education, University of Wisconsin - Milwaukee.  Email: rjbeck [at] uwm.edu. 

 

On the question of international law’s proper relationship to foreign policy, a yawning gap separates two “camps” of practitioners, pundits, and scholars.  Arrayed on one side are a host of “Realists,” whose profound skepticism about international law’s utility is well captured in a recent op-ed by columnist Charles Krauthammer:  “Tennyson dreamed of a parliament of man.  Woodrow Wilson gave it to us.  We have lived with it in one form or another for almost 100 years.  It has not worked.  It never will.  We should stop being surprised when it doesn’t” (Krauthammer 2006, at 39).  This Realist perspective was more colorfully evinced by President George W. Bush when he reportedly chastened Donald Rumsfeld:  “I don’t care what the international lawyers say, we are going to kick some ass” (Clarke 2004, at 24).  On the other side of the divide are those who have been variously dubbed “Idealists,” “Institutionalists,” or “Liberal Internationalists.”  Legal scholar Thomas J. Schoenbaum and his INTERNATIONAL RELATIONS – THE PATH NOT TAKEN lie squarely here.  For Professor Schoenbaum, “international law and international institutions must be the focal points of foreign policy” (p.vii). 

 

Schoenbaum’s book joins an array of recent scholarship on international law’s character and policy relevance, much of which has received LPBR review (Anghie 2004; Benvenisti and Hirshe 2005; Buchanan 2004; Goldsmith and Posner 2005; Koskenniemi 2006; Schulte 2004; Simpson 2004).  His work’s primary intended audience would seem to be Americans, given his various references to the United States as “we” (e.g., “the U.S. War on Terror beguiles us into thinking our government is protecting us” – p.131).  Moreover, the book’s content and format make it especially suitable for college students enrolled in undergraduate courses on Global Studies, International Organization, and International Law.  Even so, Schoenbaum clearly hopes his argument will exert broad influence, perhaps even helping move U.S. policymakers away from unilateralism and toward a reassertion of constructive leadership in the international legal and institutional realms (see, e.g., pp.xiv, 33, 276).  To the extent that Schoenbaum has indeed sought such an audience, and in view of his core concerns, his text is somewhat misleadingly titled.  Arguably better would have been:  CONTEMPORARY U.S. FOREIGN POLICY – THE PATH NOT TAKEN.

 

The tone and style of THE PATH NOT TAKEN vary rather markedly throughout the book’s ten chapters.  At times, the work is traditionally scholarly and descriptive.  Schoenbaum straightforwardly reports, for example, that “the international regime of state responsibility is still embryonic and controversial” (p.40).  At other times, though, his tone is notably polemical.  The “neo-conservative foreign policy,” Schoenbaum avers, “has produced a crisis of unparalleled proportions” (p.50).  Among the various Bush Administration officials singled out for special criticism by Schoenbaum is Alberto Gonzalez, “architect” of the prisoner abuse scandal and “guilty of incompetence and disregard of the law” (pp.256, 260).  Similarly variable is Schoenbaum’s use of language, which fluctuates between the technical/arcane (“legal norms rest on a sui generis, positivistic foundation that has been termed the Grundnorm . . . or ‘rule of recognition’” – p.67) and the conversational/colloquial (“Believe me, international law is a lot simpler than the U.S. tax code” – p.92, or “International trade competes with domestic suppliers of goods and services, and sometimes eats their lunch.  Naturally this does not go over well” – p.177).  This stylistic variability is not a defect of Schoenbaum’s book, but rather would seem to reflect the author’s dual purposes/audiences:  scholarly description for an academic audience; and policy prescription for a broader public audience.

 

THE PATH NOT TAKEN reviews and modestly engages the theoretical literatures of the International Law (“IL,” see pp.62-71) and the contemporary International Relations (IR) disciplines:  Realism, Neorealism, Game Theory, Functionalism, Neofunctionalism, Complex Interdependence, Regime Theory, Constructivism, and the English School (pp.46-49, 56-59).  Even so, it does not offer a sustained, self-consciously “theoretical” argument, in the strictest social scientific sense of the term.  Schoenbaum’s thorough explication of contemporary international legal rules and institutions might suggest to the careful reader, but it does not directly address or explore, such intriguing questions as why U.S. behavior toward international law has varied over time, why U.S. behavior has varied across such legal issue areas as national security and the economy, and why legal issue areas that impose immediate costs but offer deferred benefits have apparently proven particularly challenging to elicit international institutional participation by the U.S.  Schoenbaum does provide, however, a sociological account of international law that undergirds his work, one that savors both of IR’s Constructivism and the English School.  International law, he contends, constitutes “international society,” creating “a web of relationships based on obligation” (p.89).   Indeed, “law and society are co-terminous; each is an integral part of the structure of society” (italics in original, p.69).

 

Schoenbaum insulates himself somewhat from Realist criticism by regularly acknowledging the limitations of international law and institutions.  These are not, he suggests, “magic bullets” or “panaceas,” but “rather fragile and imperfect” (p.xiv).   “International law and institutions have manifest defects” (p.52), he concedes, with the U.N. as currently constituted “fundamentally flawed” (p.97), with UNCED’s five important instruments on environmental protection “being ignored or . . . in severe difficulty” (p.199), and with the U.N. Commission on Human Rights making “a mockery of the entire U.N. system of protection of human rights” (p.251).   Moreover, Schoenbaum assiduously reaffirms the significance of power for international relations:  “[p]ower will always be important” (p.304).  He even grants to Realists that states are “rational actors that have interests and seek to further those interests” (p.vii).  Ultimately, though, Schoenbaum is a defender and advocate of Liberal Internationalism who seeks reform of international law and institutions so that they may be employed “to use power in subtle and creative ways” (p.31). 

 

Schoenbaum submits that “state interests” in the twenty-first century have broadened, with those interests “rooted in cooperation” and also those “held in common with all of international society” predominating (p.viii). The world is small and interconnected, as never before.  Security, traditionally viewed exclusively through a “state” lens, now has vital “human” and “environmental” aspects (p.viii).  In our globalized realm, international rules are “indispensable to furthering state interests,” creating legitimacy, order, and predictability (p.ix).  International institutions, meanwhile, can exert a “multiplier effect” that is “indispensable to the solution of world problems” (p.ix).  While reform will be difficult, Schoenbaum insists, his Liberal Internationalist approach offers the best, if inevitably imperfect, “path” to world peace and security (p.xiv).  THE PATH NOT TAKEN elaborates this argument over three hundred pages, addressing as it does such crucial areas as peace and security (pp.96-147), international political economy (pp.148-195), international environmental protection (pp.196-249), international human rights (pp.250-284), and international crimes (pp.285-301).

 

THE PATH NOT TAKEN is impressive in its range, reflecting its author’s expertise and scholarly rigor.  Nevertheless, Schoenbaum occasionally presents a principle or an interpretation of international law with relatively little or no qualification, as if it were uncontested or uncontestable.  The book’s expansive scope inevitably precludes nuanced treatments of every significant international legal controversy.  Even so, some scholars may take issue with one or more of Schoenbaum’s doctrinal characterizations or legal assessments.  Four examples may perhaps suffice here.

 

First, dismissing those “respected scholars” who “occasionally” have “lapsed” into the naturalist “fallacy” (p.72), Schoenbaum contends that “today . . . international law is fully positivist” (pp.64-65).  To be sure, the overwhelming majority of contemporary international law is positivist.  Nevertheless, naturalist underpinnings arguably continue to inform “general principles of law,” as sources of international law, as well as the corpus of human rights law.  Second, Professor Schoenbaum asserts that “in the twenty-first century sovereignty has a new and simple meaning – the right of the citizens of a state to determine their own destiny” (p.38).  This characterization of sovereignty, while attractive, surely represents only one of many contending constructions.  Third, the “atomic bombing of Hiroshima and Nagasaki” was an “undeniable” war crime, Schoenbaum argues, with two sentences of supporting commentary (p.287).  If the 1945 use of nuclear weapons was indisputably impermissible under international law, though, one must wonder why the International Court of Justice’s advisory opinion on the more general subject (NUCLEAR WEAPONS 1996) ultimately proved so equivocal, informed as it was by a consideration of pre-U.N. Charter law:  “Despite the undisputed applicability of the principles and rules of humanitarian law and of the law of neutrality to nuclear weapons, the Court found the conclusions to be drawn from this applicability were controversial” (Bekker 1997, at 130).  Fourth, Schoenbaum might reasonably be interpreted to suggest that custom is an inferior source of international law.  Certainly, he judges custom “a much less important source” than treaties (p.73), and at least twice he describes customary law as “weaker than treaty law” (pp.31, 229).  Opinions on “sources doctrine” surely differ.  Nevertheless, as Slomanson has observed, many contemporary commentators “consider custom to be not only at the top, but also the essential basis for the other sources” (Slomanson 2007, at 11).  Moreover, jus cogens obligations, which are arguably custom-based, may not be abrogated by treaty (Bederman 2001, at 23).

 

A far more trivial criticism of Schoenbaum’s book should also be noted.  Reflecting the student audience for which it is partially intended, THE PATH NOT TAKEN features end-of-chapter bibliographies.  These seem sub-optimally organized.  While the included works might have been arranged by author, title or date, each is listed instead in the order in which that work’s theme was introduced in the chapter:  an organizing structure less useful to those who have not yet read the chapter.  The bibliographies offer some sparse annotation, but thematic subtitles would have been most welcome.  Even so, the bibliographies constitute a most valuable addition, as do the book’s various text boxes, maps, and figures. 

 

INTERNATIONAL RELATIONS:  THE PATH NOT TAKEN is well-sourced, comprehensive, and clearly written.  It reflects its author’s manifest passion for his subject while it addresses questions of immense consequence for our time.  Readers may ultimately disagree with Thomas Schoenbaum’s international legal analysis or his foreign policy prescriptions.  Nevertheless, THE PATH NOT TAKEN is well worth the close attention of students and scholars of the “IR” and “IL” disciplines, and of all others concerned about world peace and security. 

 

REFERENCES:

Anghie, Antony.  2004.  IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW.  New York:  Cambridge University Press.

 

Bederman, David J.  2001.  INTERNATIONAL LAW FRAMEWORKS.  New York:  Foundation Press.

 

Bekker, Peter H. F.  1997.   “Legality of the Threat or Use of Nuclear Weapons.” 91 AMERICAN JOURNAL OF INTERNATIONAL LAW 126-133.

 

Benvenisti, Eyal and Moshe Hirsch (eds.).  2005.  THE IMPACT OF INTERNATIONAL LAW ON INTERNATIONAL COOPERATION: THEORETICAL PERSPECTIVES.  New York: Cambridge University Press.

 

Buchanan, Allen.  2004.  JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW.  Oxford: Oxford University Press.

 

Clarke, Richard.  2004.  AGAINST ALL ENEMIES: INSIDE AMERICA'S WAR ON TERROR.  New York:  Free Press.

 

Eden, Paul, and Thérèse O’Donnell (eds).  2004.  SEPTEMBER 11, 2001:  A TURNING POINT IN INTERNATIONAL AND DOMESTIC LAW?  Ardsley, New York:   Transnational International Publishers.

 

Goldsmith, Jack L. and Eric A. Posner.  2005.   THE LIMITS OF INTERNATIONAL LAW.  New York: Oxford University Press.

 

Koskenniemi, Martti.  2006. FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT. (Reissue with New Epilogue). New York: Cambridge University Press.

 

Krauthammer, Charles.  2006.  “We should learn from our past; if an organization has no teeth, it can’t bite.”  TIME (October 23) 39.

 

Schulte, Constanze.  2004.  COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE.  New York: Oxford University Press.

 

Simpson, Gerry.  2004.  GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER.  New York: Cambridge University Press.

 

Slomanson, William R.  2007.  FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW.  (5th ed.).  Belmont, CA:  Thomason Wadsworth.

 

CASE REFERENCE:

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (Advisory Opinion), 1996, ICJ Reports.

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© Copyright 2006 by the author, Robert J. Beck.