Grand Strategy and International Law
Rostow, Nicholas, Strategic Forum
Grand strategy is, or should be, the "calculated relationship of means to large ends." (1) Interrelated strategic and legal dimensions provide a leitmotif to the modern history of relations among powerful states. States employ an array of means to achieve their large ends--military power, as well as diplomatic, informational, economic/financial, and legal tools and influence. They differ in effectiveness and precision. In the web of interactions that shape contemporary international relations, the legal dimension as a framework and guide to choices is more often overlooked than particular legal instruments that might be invoked in the belief, or more often the hope, that they will serve policy and strategic objectives.
Views of the relevancy and content of international law vary. At one extreme, Dean Acheson famously remarked that "law simply does not deal with such questions of ultimate power--power that comes close to the sources of sovereignty." (2) At the other end of the spectrum is the view that the effectiveness of the International Criminal Court is the test of the health of international law and le-gal regimes. (3) The truth does not lie in between: whether or not the International Court of Justice is a success--and defining success depends on one's perspective (for some, failure would be success)--is not a test of the health of international law.
As grand strategy deals with subjects that touch the sources of sovereignty, is there--can there be--a relationship between law, much less international law, and grand strategy? The answer, of course (despite the skeptics), is yes; it is a different "yes" than advocates of this or that legal or other international institution might intend. At the same time, the nature of the relationship is both complex and straightforward. To unravel it, this essay begins with the general subject, examines the U.S. relationship with international law, and offers some thoughts on U.S. grand strategy now and in the foreseeable future and its connection to international law.
International law reflects the nature of the politi-cal system, framing the world as we know it. (4) For the moment, it reflects the strength, values, and purposes of the democracies more than of the dictatorships, although its elements respect the state system without regard to internal management. The legal regime as an effective framework for international politics and authoritative decisions is inseparable from the balance of power. The world, after all, is divided among independent states; there is no global government.
As the system is not hierarchical, international law is not either. (5) Grand strategy operates within the same non-hierarchical system. Grand strategy and international law are, or should be, natural partners. Grand strategists consider power and values. Those are what the "ends and means" language and calculus of strategists involve. Legal concepts of "necessity" and "proportionality" imbue and frame the calculations of strategists. The law represents the pattern of behavior that a society deems right achieved through processes equally deemed right. The result is authoritative decisions infused with legitimacy. The definitions of legitimacy, strategy, and law are similar, although the definition of law is more aspirational in that it speaks in terms of right and wrong rather than in terms of what the great powers agree. (6)
In the present international arena, law and strategy are almost inseparable, especially when the use of force or other coercion is at issue. That is not to say that every use of force or strategy accords with international law. Rather, grand strategy is linked to the fundamental, constitutive norms of the international system because it is developed and implemented within the system even if it is sometimes apparently at odds or in tension with the system. Neither grand strategy nor international law is frozen in time or place. Moreover, neither is autonomous: each develops through interaction among independent states and other actors in the international system. …