How to Do Things with International Law

Ian Hurd

• Publisher: Princeton University Press
• Year: 2017
• ISBN:
  9781400888078
• Topic: Politique et relations internationales
• Subtopic: Traités

A provocative reassessment of the rule of law in world politics Conventionally understood as a set of limits on state behavior, the "rule of law" in world politics is widely assumed to serve as a progressive contribution to a just, stable, and predictable world. In How to Do Things with International Law, Ian Hurd challenges this received wisdom. Bringing the study of law and legality together with power, politics, and legitimation, he illustrates the complex politics of the international rule of law.Hurd draws on a series of timely case studies involving recent legal arguments over war, torture, and drones to demonstrate that international law not only domesticates state power but also serves as a permissive and even empowering source of legitimation for state action—including violence and torture. Rather than a civilizing force that holds the promise of universal peace, international law is a deeply politicized set of practices driven by the pursuit of particular interests and desires. The disputes so common in world politics over what law permits and what it forbids are, therefore, fights over the legitimating effect of legality.A reconsideration of the rule of law in world politics and its relationship to state power, How to Do Things with International Law examines how and why governments use and manipulate international law in foreign policy.

1

Introduction

—Well what would you do if you were the king? asked the prince.

—I would do absolutely nothing

—And who then would govern?

—The Laws!

–FRANÇOIS QUESNAY TO THE DAUPHIN, CITED IN BERNARD HARCOURT, THE ILLUSION OF FREE MARKETS

Aerial drones, humanitarian intervention, cyberattacks, torture. The big debates in world politics today are inseparable from international law. Controversy over what is and is not legal is standard fare in international conflicts, and commitment to rule of law is presumed a marker of good governance. Rule following is said to lead naturally to more desirable collective outcomes.

This legalization of global affairs is widely viewed as a progressive advance on earlier conditions. No longer must self-interest, coercion, and power politics dominate decision making. Now the rule of law is cited as the remedy for human rights abuses, domestic dictatorship, international war, and other problems.¹ For instance, as Anne-Marie Slaughter says, it is “far better to resolve boundary issues in the South China Sea multilaterally by agreed-upon rules of the game than unilaterally by the strongest nation.”² Along with scholars, governments, activists, and nongovernmental organizations (NGOs) routinely emphasize the significance of international law and urge states and nonstate actors alike to conform to its requirements. The United Nations recently established a bureau to promote and coordinate its rule-of-law activities internally and around the world.³ The Pentagon opened its Office for Rule of Law and International Humanitarian Policy in 2010. In these efforts, the rule of law appears as a charmed concept, outside politics, without doubters and without critics. Keally McBride says it is treated “as a largely uncontested self-evident good.”⁴ As Quesnay said to the dauphin, let the laws themselves rule. Yet the politics of the international rule of law are not so simple and are rarely investigated directly.⁵

In this book, I look at how the concept is used in world politics and to what ends. My goal is to better understand the power and politics of international law.⁶ I show that international law is properly seen not as a set of rules external to and constraining of state power but rather as a social practice in which states and others engage. They put the political power of international law to work in the pursuit of their goals and interests.

Governments use international law to explain and justify their choices. This is both constraining and permissive. On the one hand, states must fit their preferences into legal forms. On the other hand, they are empowered when they can show their choices to be lawful. Thus international law makes it easier for states to do some things (those that can be presented as lawful) and harder to do others (those that appear to be unlawful).

The legalization of politics is permissive even as it imposes limits. States strive to fit their policies into the categories of international law, showing themselves to be compliant with their obligations. But in doing so, they appear to depoliticize their choices. Compliance with the law becomes the marker for acceptable policy, masking the substantive politics of the situation and the law itself.

This is not to say that law never limits state power. It can be a source of individual emancipation and a bulwark of human rights. Beth Simmons reflects this conventional view when she says, “It is precisely because of their potential power to constrain that treaty commitments are contentious in domestic and international politics.”⁷ But it is not necessarily so. Against the “enchanted” view of law as naturally progressive and protective against state power, I suggest we adopt a more empirical attitude in which law’s normative valence is a question for investigation rather than assumed in advance. Drawing on several case studies, I will argue that attention to the actual content of international law as well as its application and interpretation demands new conclusions about law’s political implications. We cannot get away with assumptions of inherently superior, apolitical rule following.

In part this is because the rules themselves mutate according to political exigency. If law were above politics, it would be easy to distinguish between the legality and illegality of foreign policy choices. But, in the cases I examine, international law does a notably poor job of differentiating compliance from violation. For instance, despite decades of debates, it remains unclear just what kinds of force may be justified under the laws of self-defense. Even the general parameters of self-defense have changed over the years with shifting circumstances—specifically, as powerful states come to need or desire new legitimations for new forms of war in relation to new forms of threat.⁸ In other words, the contents of the law change through its use. I also find that international law is often much more successful at constituting and legitimating government policies than at positively distinguishing between compliance and noncompliance. The international rule of law is thus a permissive regime as much as a constraining one, and its relationship to power is more complicated than standard assumptions acknowledge.

The International Rule of Law and Its Politics

In 1908, Lassa Oppenheim looked forward to the day that historians would declare the “ultimate victory of international law over international anarchy.”⁹ According to many liberal internationalists, the international rule of law brings us closer to that day. G. John Ikenberry says we live in a “rules-based international order.”¹⁰ John H. Jackson, the eminent international trade lawyer and scholar, takes this view to the extreme when he says, “To a large degree the history of civilization may be described as a gradual evolution from a power-oriented approach, in the state of nature, to a rule-oriented approach.”¹¹ It is a good thing, too, according to President Dwight David Eisenhower. Faced with the threat of nuclear proliferation, Eisenhower propounded the liberal perspective in which law is an alternative to power: “In a very real sense the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”¹² Compliance with law is equated with political order, stability, and peaceful settlement of disputes, while failures to abide by the rule of law are said to provide the raw materials for innumerable international crises.

In this account, law is a counterpoint to power. Obligation to comply with law binds governments acting internationally in much the same way law binds individuals within states. Through law, governments escape a global Lockean state of nature: agents recognize their weakness and the dangers of anarchy and so consent to limits on their absolute freedom, thereby establishing a political system that better serves their individual and collective needs.¹³

The domestic model of law and legal obligation, however, does not translate well to the international realm. The conventional account of international law, based in this model, both overstates and understates the power of the rule of law in international affairs. It overstates because states do not automatically and unproblematically comply with international law, as individuals generally do with respect to domestic law. Governments frequently break, ignore, avoid, and redefine their international legal obligations. Thus, as many have noted, the regulative capacity of international law is weak.¹⁴ Moreover, many of the most important rules of international law permit fundamentally conflicting interpretations. As a result, it may not be possible to identify clearly what compliance means in order to assess rule following versus rule breaking.

At the same time, the conventional view understates the power of international law because it begins with the assumption that the power of law rests in its capacity to limit strong actors. If law can’t constrain the powerful, it is said, then it is probably not doing its job.¹⁵ But the focus on constraint is misplaced. It rests on a narrow conception of law and legalization along with an unrealistic ideal-type view of law’s relation to politics. Law has power to constrain, but it also has powers to authorize, permit, and constitute actions. Legal realists of various types and constructivists in international relations (IR) emphasize these powers.¹⁶ As I show in the following chapters, the instrumental use of law to legitimize state policy is ubiquitous.¹⁷ For instance, law is used in public diplomacy to explain and frame competing policy choices, and as such, offers resources states rely on.¹⁸ In this sense, international law is pervasive and even foundational in global affairs. It shapes the context in which governments operate and provides the raw materials with which foreign policy is pursued.

In practice, international rules provoke two kinds of interpretation, which complicates their meaning. Participants in international law interpret rules in order to provide an account of what actions are allowed or forbidden, and they interpret the case at hand in order to know how it fits with those rules. It is therefore hard to establish clean boundaries among states, their interests, and the meaning of international rules. These processes are also open to nonstate actors, and while I do not focus on them here, it is apparent that much of the politics of international law happens in a broader public domain, beyond formal state or legal settings. For example, the NGO Sea Shepherd says it is enforcing the International Convention on the Regulation of Whaling when it interrupts Japanese whale hunting in the southern ocean.¹⁹ Similarly, the Institute for Development and Justice in Haiti, a US NGO, claims its efforts to gain compensation for cholera victims in Haiti are authorized by the Status of Forces Agreement between the United Nations and Haitian government.²⁰ The various parties to international law, whether states or otherwise, are constantly rewriting the rules as a function of their deployment.

Scope and Goals of the Book

The idea that state behavior should be consistent with international law is deeply rooted in international law and politics, both in practice and scholarship. This demand for compliance constitutes the ideology of the rule of law and carries important consequences for the conduct of international affairs.²¹ Among these is the political legitimation that comes from being seen as compliant with international law. This is attractive to states. On the flip side, international actors can undermine others’ power by showing that they are violating the law. What I’ve sketched here is a political understanding of law by which I mean the recognition that law produces both winners and losers. States and rules are mutually implicating, law and politics inseparable. This leads away from the conventional view in at least three ways.

First, my understanding avoids much of the debate about the “true” meaning of international legal rules. This is a major concern among theorists and observers of international law. The ability to differentiate compliance and noncompliance is often taken to be the hallmark of a well-functioning legal system; the rule of law itself is usually said to require that actors be able to distinguish what is legal from what is not, and international law is frequently faulted for its inadequacy on this point, particularly for the lack of a judicial branch with automatic jurisdiction over interstate disputes. To remedy this apparent problem, scholars and others invest in codification, the “rational design” of international institutions, and other projects that aim to clarify the meaning of existing laws or institute better ones.²² Relatedly, much social science scholarship on international law asks whether the law induces states to change their behavior, from noncompliance to compliance.²³ This is consistent with the tradition of positivism as a research method: positivists look for the causal impact of an independent variable (international law) on a dependent variable (state behavior). Both positivist social science and rational design require that the law be separate from and prior to the behavior it governs.

In the chapters that follow, a stable notion of compliance is elusive, at least with respect to a large subset of important international legal obligations. So there can be no comparison between law and practice. Contestation over the meaning and application of law is endemic to law’s political uses and effects. Indeed, compliance may be a political rather than legal artifact—the thing being contested as opposed to an external standard that can be applied to behavior. To assess an actor’s compliance with international law involves more than reading formal sources of law. It also entails the rendering of political judgment about what policies deserve to be endorsed. Put another way, international law cannot be separated from state practice, and state practice does not exist independent of the legal explanations, justifications, and rationalizations that governments give for it. Debates about the true meaning of international rules therefore are bound to be inconclusive. If we are to understand what international law is and is used for, we need a research methodology attentive to the mutual constitution of states and rules.

Second, I depart from conventional readings of international law by highlighting the dialectical relationship between state policies and international rules. It is not just that the meaning of international law shifts under the influence of state practice. The relationship between state interests and international rules is bidirectional and mutually constituting. Governments rely on international law to construct their foreign policies and in so doing contribute to remaking those rules. State practice is jurisgenerative of international law: it creates the resources that constitute it. For instance, the debate over whether the US drone program is legal or not depends on how states have in the past given meaning to various legal categories and concepts, including interstate war, the Geneva Conventions and other instruments, the legal personality of nonstate actors, and command responsibility.

When states use the legal resources of the int...