‘International Law’ (IL) is useless. Or so goes the conventional wisdom.
Whether sitting around with all the armchair generals in IR, reading ‘realist’ literature or indulging in the latest journalistic diatribe against IL penned by some jumped up American isolationist, you cannot escape this inevitable conclusion. Of course, certain good hearted Liberal institutionalists and anti-war activists have tried to make the case for IL in public opinion and within the academy, but their attempts appear to be largely seen as quaint and naïve. The myriad of terrible illegalities which have accompanied Russia’s invasion of Ukraine has worsened this trend.
Considering my obvious distaste for some of the current attacks on IL, it may come as a somewhat of a surprise that I used to be a relatively fierce critic of the efficacy of IL, as some of my early essays illustrate. What may be more of a surprise is that I still question whether IL can function as an effective restraint on states in the present day.
Reading legal history and legalist activism for my short essay has taught me that IL is not some free floating ‘thing’. Like all social and legal constructions, it is a product of its context, constantly reproduced. As such, attacks on the ability of IL to constrain states seem misguided to me. A more intellectually honest take would be to take aim at the context surrounding IL, which allows states and individuals to violate it. In simpler terms, focussing not on the fact IL has been broken, but why that ‘break’ occurred.
Some models claim they can do this. The most common default is to draw upon ‘rational actor theories’, with some modifications for lack of information, bureaucracy and psychology in a crisis. However, what may satisfy policymakers does not satisfy historians (as my recent exploration of law office history has illustrated to me). Even my initial reading for my project has shown that rationality is not a sufficient model to explain why IL is broken or obeyed historically (though it remains an important and valid analytical tool). The perspective that IL is useless beyond its utility to a rational actor, cannot explain the massive upswing in demands for the ‘legalisation of war’ and the balancing of humanitarian concerns against military efficacy which occurred during the drafting of the St. Petersburg Declaration. More importantly, it fails to explain why states largely obeyed these rules, even when there was no imperative to do so. It’s not like we suddenly got ‘more rational’ in the modern era.
Whilst this hypothesis will undoubtably be outside the bounds of my 4000-word project, these observations have made me interested in looking at how intellectual contexts affect the violation of IL. Whilst I can make no evidentiary claims, perhaps, were critics of IL to move beyond their present context to examine the origins of ‘realism’ in the work of Carl Schmidt, and how the laws of war initially formed alongside a transnational intellectual web of legalists and humanitarians, they might conclude that the problem is not IL, but the intellectual context in which it currently sits. This is a controversial thesis to be sure, but perhaps one worth exploring, maybe in a dissertation or something of that kind.