Published online by Cambridge University Press: 07 December 2018
In his recent book, Ian Hurd argues that international law is pervasive and foundational in international affairs and that the international rule of law is hegemonic over states. While the book is provocative and compelling, it fails to convince on two core points. First, Hurd does not offer a real alternative to international relations realism. Indeed, the book could unwittingly reinforce the realist stance that international law is simply power politics in disguise. Second, the book offers a problematic conception of international rule of law. What Hurd describes is at best a rule by law, or perhaps more appropriately qualified as a travesty of the rule of law.
1 “Ces frappes ne règlent rien mais elles mettent fin à un système auquel nous nous étions habitués, qui est que, en quelque sorte, le camp du droit serait devenu le camp du faible.” Emmanuel Macron (@EmmanuelMacron), Twitter post, April 17, 2018, 3:57 a.m., twitter.com/twitter/statuses/986196919235104769. (Question and Answer session before the European Parliament of April 17, 2018, devoted to the missile strikes of April 14, 2018, launched by the United States, the United Kingdom, and France at three places that had been associated with chemical weapons production by Syria.)
2 Compare, for example, Resolution 67/1 of the UN General Assembly, entitled “Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels,” November 30, 2012, A/RES/67/1, para 1, www.un.org/ruleoflaw/files/A-RES-67-1.pdf.
3 Holland, Thomas, Studies in International Law (Oxford: Clarendon Press, 1898), p. 152Google Scholar.
4 See the recent public debate about the Transatlantic Trade and Investment Partnership (TTIP), in which public criticism (besides the new U.S. president) was one factor that stalled the project.
5 International Criminal Tribunal for the former Yugoslavia (ICTY), case no. IT-94-1-AR72, Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber of October 2, 1995, paras. 26–28.
8 Waldron, Jeremy, “The Rule of International Law,” Harvard Journal of Law & Public Policy 30, no. 1 (2006), notably at p. 23Google Scholar.
9 Peters, Anne, “International Organizations and International Law,” in Cogan, Jacob Katz, Hurd, Ian, and Johnstone, Ian, eds., The Oxford Handbook of International Organizations (Oxford: Oxford University Press, 2016), pp. 33–59Google Scholar.
10 Schwarzenberger, Georg, Power Politics: A Study of World Society, Third Edition (London: Stevens & Sons Ltd., 1964), p. 203Google Scholar.
11 Austin, John Langshaw, How to Do Things with Words: The William James Lectures delivered at Harvard University in 1955 (Oxford: Clarendon Press, 1962)Google Scholar.
13 Risse, Thomas, “Let's Argue: Communicative Action in World Politics,” International Organization 54, no. 1 (2000), p. 23Google Scholar; see also Venzke, How Interpretation Makes International Law, p. 218.
16 But see the former legal adviser Harold Koh, “Not illegal: But Now the Hard Part Begins,” Just Security (blog), April 7, 2017, www.justsecurity.org/39695/illegal-hard-part-begins/.
17 The White House, “Remarks: Statement by President Trump on Syria,” April 13, 2018, www.whitehouse.gov/briefings-statements/statement-president-trump-syria/.
18 Syria: Statement of Theresa May, Prime Minister, U.K. House of Commons, Hansard Vol. 639, April 16, 2018.
19 U.K. Government, “Policy Paper, Syria Action—U.K. Government Legal Position,” April 14, 2018.
20 French Prime Minister Edouard Philippe in the National Assembly, April 16, 2018.
21 Laurent Fabius, “A Call for Self-Restraint at the U.N.,” New York Times, October 4, 2013.
22 Vladimir Isachenkov, “Russia: US Did Not Violate Red Lines During Syria Strikes,” Associated Press, April 20, 2018.