Ian Hurd: Good medicine for bad politics? Rethinking the international rule of law

When an international crisis erupts it is common to hear experts say that the situation will be improved if all parties stick to international law. From the Syrian war to Burma’s massacres to Guantanamo torture, faithful compliance with the law of nations is often prescribed as the best way forward. I wrote this book because I was curious about the idea that international law is good medicine for bad policies, a kind of non-political, universal good. International law often appears like a magical machine that takes in hot disagreements about how things should unfold and produces cool solutions that serve the interests of everyone. How to do Things with International Law examines this idea with a degree of skepticism, holds it up against some empirical cases, and suggests more realistic ways of thinking about the dynamics between international politics and international law.

The standard model of international law is built on two components, one more institutional and the other more normative. On the one hand, international law is seen as providing a framework for the coexistence for governments. Laws on diplomatic immunity, non-interference across borders, and the peaceful settlement of disputes help organize inter-governmental relations and give a kind of civility to world politics. On this view, following the rules makes it possible for diplomacy and negotiation to happen. The second, normative strand adds substantive values such as a commitment to human rights, to the protection of refugees, and against nuclear proliferation. Here, following the rules is said to be important because it enhances human welfare and the other goals encoded by the law. The two strands agree that compliance with international rules is beneficial and that violations of the rules lead to international disorder at best—and violence and chaos at worst.

This represents what I see as a conventional view of the international rule of law. It is a commitment to the idea that governments should follow their legal obligations and that when they do the world is a better place. It is an ideology, in the sense noted by Shirley Scott.

My book explores the premise and the power of this ideology and its influence in global politics. I look at the presumptions that it rests on and the practices it makes possible. I see the power of international law on display in the ways that governments and others make use of legal resources and categories to understand, justify, and act in the world. This is a social power, built on the idea of the rule of law and employed by governments in the service of a wide array of goals.

The book does not aim to answer questions about why states comply with or flout the law. Instead, it asks what they do with the law – and why, and with what effects. As a methodology, this points toward looking for where international law appears in the strategies of governments. On substance, it suggests a close connection between international law and political power. International law has influence in certain situations, when powerful actors find it useful. For instance, the US gave legal arguments for why Russia’s annexation of Crimea was unlawful and therefore should not be accepted by other countries. In response, Russia gave legal arguments to sustain its behavior. Legal experts may well conclude that one side had the stronger legal argument; disagreements about interpretation and application are central to legal practices. But my curiosity comes from seeing both sides use legal arguments as political resources in defense of their preferred outcome.

The use of law to legitimize state policy is a central feature of contemporary international politics. And yet to some, the instrumental use of law is said to reveal the inappropriate politicization of law, contradicting their idea of the rule of law itself. I see it the other way around: the international rule of law is the instrumental use of law. The legalization of international politics gives legal rationalizations their political weight. Their political weight makes them important sites of contestation. In a legalized world, it makes sense for actors to contest their actions in the language of law. To borrow Helen Kinsella’s example, the line between civilian and combatant in a war zone distinguishes those who should be killed from those who should not; the line is defined by the Geneva Conventions and other legal instruments and it is brought to life (and death) as governments interpret it in relation to those whom they wish to kill. Legal categories have political valence and this makes them important resources of power and thus worth fighting over. How else to make sense of the energy that governments put into shaping rules that reflect their interests?

Recognizing the close connection between international and power politics opens a way to considering the political productivity of international law. Law is not only regulative and constraining; it is also empowering and permissive. By defining some acts as unlawful and others as lawful, it makes the former harder for governments to do (or more expensive) and the latter easier. The availability of a legal justification smoothes the way for action just as much as its unavailability impedes it. If we look at one side of this balance, we see for instance that the UN Charter outlaws the use of force by governments and limits their autonomy with respect to going to war. On the other side the Charter also authorizes them to go to war as needed for ‘self-defense’ against an armed attack. In ‘self-defense,’ the Charter creates a new legal resource with the capacity to differentiate between a lawful and an unlawful war. This is a powerful tool for governments, a means for legalizing their recourse to force, and they have used it with enthusiasm since 1945. The Charter produced something that previously didn’t exist and as a consequence changed how governments go to war, how they justify their wars, and how they think about their security in relation to external threats.

With the political productivity of international law in mind, the book shows that international law is inseparable from politics and thus from power. For powerful governments, international law puts an instrument in their tool-kit as they seek to influence what happens in the world, and for the less powerful it is a tool that they might also seek to take up when they can but may equally be a means of control whose influence they seek to escape.

There isn’t much evidence to back up the presumption that international law steers global affairs naturally toward better outcomes. How to Do Things With International Law is neither a celebration of international law nor an indictment. It offers instead a look into its practical politics, a messy world of power politics that is as full of interpretation, ambiguity, violence and contestation as any other corner of social life.

HurdIan Hurd is associate professor of political science at Northwestern University. He is the author of After Anarchy and How to Do Things with International Law.