Gavin Howe
In his book, *How to Do Things with International Law*, Ian Hurd challenges the traditional understanding of international law as a set of limits on state behaviour. He argues that international law is deeply politicised and driven by the pursuit of particular interests and desires. Hurd uses case studies on war, torture, and drones to demonstrate that international law can be a permissive and empowering source of legitimation for state action, including violence and torture. He further claims that international law is a tool of state power, which governments employ to authorise and legitimise their desired actions. Hurd's work provides a nuanced explanation of the complex politics of the international rule of law and its relationship with power and politics.
| Characteristics | Values |
|---|---|
| International law is a tool of state power | Authorize and legitimize government actions |
| International law is a permissive source of legitimation for state action | Violence, torture, drones, war |
| International law is a deeply politicized set of practices | Driven by the pursuit of particular interests and desires |
| International law is not neutral | Does not treat all state actors equally |
| International law is constitutive or regulatory | Cannot be both simultaneously |
| International law is not externally imposed | A resource that governments employ |
| International law is not always progressive and protective against state power | Powerful states' interests become encoded inside "compliance" with the law |
| International law is not a civilizing force | Does not hold the promise of universal peace |
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What You'll Learn
International law and international relations
International law is a set of rules generally accepted as binding in relations between states and nations. It serves as a framework for stable and organised international relations. International law differs from state-based legal systems as it is primarily applicable to countries rather than private citizens.
International law can be understood as a tool of state power. It is a deeply politicised set of practices driven by the pursuit of particular interests and desires. International law can constrain global action and enable it, and how states remake international law through their actions. For example, national law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court.
Theoretical perspectives on international law offer different ways of looking at international law in terms of what it is, how it works, and how it changes. These perspectives include realist, liberal, and constructivist lenses.
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International law and domestic law
Scope: International law operates globally, addressing issues affecting the international community, such as international peace, security, human rights, and global trade. Domestic law, on the other hand, applies within the borders of a specific country and regulates the conduct of individuals, organisations, and entities within that jurisdiction.
Subjects: International law focuses on the rights, obligations, and responsibilities of states and international actors, including international organisations and their individuals. Domestic law, in contrast, governs the conduct and interactions of individuals, organisations, and entities within a specific country.
Sources of Law: International law derives its authority from treaties, customary practices, general principles of law, and judicial decisions. Domestic law, on the other hand, stems from the country's constitution, statutes, regulations, and case law. In some countries, like Canada, international conventions are integrated into the legal framework through implementation legislation. This allows international obligations to be interpreted by domestic courts, considering both international treaties and domestic laws.
Enforcement Mechanisms: International law lacks a centralised enforcement body, relying on states' consent, diplomatic negotiations, economic sanctions, and international courts. Domestic law, however, is enforced through a country's judicial system and law enforcement agencies within its jurisdiction.
Relationship to Sovereignty: International law respects state sovereignty and operates based on the consent of participating states, allowing them to maintain independence while cooperating internationally. Domestic law exercises authority over individuals and entities within its jurisdiction, regardless of their consent.
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International law as a tool of state power
International law is often regarded as a set of constraints on state behaviour, contributing to a just, stable, and predictable world. However, this view overlooks the complex interplay between international law and state power. In his book, "How to Do Things with International Law," Ian Hurd challenges the conventional understanding of international law as merely limiting state behaviour. Hurd argues that international law is a tool of state power, employed by governments to authorize and legitimize their actions.
International law can be manipulated by states to pursue their interests and objectives. Hurd's case studies illustrate how international law can serve as a permissive source of legitimation for state actions, including violence and torture. For instance, states may invoke international law to justify the use of force or the implementation of controversial policies. By presenting their actions as compliant with international legal norms, states can enhance their credibility and gain domestic and international support.
Furthermore, international law can be utilized by states to exert influence and project power on the global stage. Through the creation and enforcement of international legal norms, states can shape the behaviour of other states and advance their strategic objectives. For example, a state with significant influence in international organizations may promote the adoption of international laws that align with its interests, thereby using international law as a tool to extend its power beyond its borders.
While international law is intended to establish universal standards and promote cooperation, it is inherently shaped by the power dynamics between states. The formulation and interpretation of international legal norms are influenced by the relative power and interests of states. Dominant states may exert disproportionate influence over the development of international law, reflecting their own interests and priorities. In such cases, international law becomes a tool for maintaining and extending the power of certain states over others.
In conclusion, international law serves as a tool of state power, providing authorization and legitimation for government actions. It can be manipulated to pursue specific interests, exert influence, and project power on a global scale. While international law plays a crucial role in regulating state behaviour, it is essential to recognize its politicized nature and the potential for it to be employed as a tool to serve the interests of individual states. Understanding international law as a tool of state power offers a nuanced perspective that highlights the complex dynamics between law and politics in world affairs.
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International law and war
The modern law of war has three principal sources: lawmaking treaties or conventions, custom, and general principles. Lawmaking treaties are international agreements that directly affect the laws of war by binding consenting nations. Customary international law, on the other hand, is established by the general practice of nations together with their acceptance that such practices are legally required. Examples of customary international law include the principles of distinction, proportionality, and necessity, which always apply to the use of armed force.
The development of modern weapons and advancements in warfare have posed challenges to the laws of war, particularly regarding the protection of civilians and the environment. The laws of war aim to address the use of weapons that may cause unnecessary suffering and destruction. The classification of conflicts is also important, as it determines which actors may use force and can lead to the tactical classification of conflicts.
The history of the law of war can be traced back to the Babylonians and the Code of Hammurabi, which imposed a code of conduct in the event of war. Medieval Europe, influenced by the Roman Catholic Church, also promulgated teachings on just war, reflected in movements such as the Peace and Truce of God. Hugo Grotius made significant contributions to the law of war by exploring the basic principles of the humanitarian treatment of victims of war in his work "On the Law of War and Peace" (De Jure Belli ac Pacis) in 1625. The period from 1856 to 1909 has been described as the law of war's "epoch of highest repute," with states establishing a positive legal foundation that superseded religion, chivalry, and customs.
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International law and politics
International law plays a crucial role in shaping global politics and relations among nations. It provides a framework for resolving disputes, promoting peace, and protecting human rights. The United Nations (UN), through its General Assembly and Security Council, is a key player in this arena, with the power to adopt multilateral treaties and initiate proceedings in international courts.
The UN General Assembly, comprising representatives from all UN member states, serves as the primary deliberative body on matters of international law. It has adopted significant multilateral treaties, such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women. The Security Council, on the other hand, can refer cases to the International Criminal Court (ICC), which has jurisdiction over genocide, war crimes, and crimes against humanity.
Within the realm of international politics, international lawyers are essential. They advise companies, individuals, and governmental bodies on legal rights and strategies, often dealing with clients from multiple countries. These lawyers must possess a nuanced understanding of the social and political dynamics of different nations and be adept at navigating the complexities of international agreements and regulations. International lawyers may specialise in areas like intellectual property, security law, or taxation to better serve their clients' interests.
International law also intersects with politics in committees and government offices. For instance, the Senate Committee on Foreign Relations and the House Committee on International Relations in the US tackle international issues, with committee counsel influencing policy decisions. The Office of Legal Adviser is another example, where attorneys negotiate, draft, and interpret international agreements, addressing matters such as human rights, political affairs, and trade.
Additionally, international law shapes the work of diplomats and foreign service officers. These professionals engage in activities related to consular affairs, economic development, and public diplomacy. They may be involved in negotiating agreements, fostering international cooperation, and promoting their country's interests abroad while respecting international legal frameworks.
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Frequently asked questions
International law is a set of norms that are assumed to serve as a progressive contribution to a just, stable, and predictable world.
International law can be understood as a tool of state power. It is used by governments to authorize and legitimize their actions, including violence and torture.
International law is deeply politicized and driven by the pursuit of particular interests and desires. It is used by states to justify their behaviour and gain legitimacy.
International law is not always effective in constraining state behaviour, especially in the case of powerful states. It is subject to interpretation and contestation, and legality is often contested and constructed through case-specific interactions.
