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How Not to Do Things with International Law

Published online by Cambridge University Press:  07 December 2018

Abstract

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.

Type
Review Essays
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2018 

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References

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 ), 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.

6 Doubting this feature of WTO law: Pauwelyn, Joost, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (New York: Cambridge University Press, 2003)CrossRefGoogle Scholar.

7 Schill, Stephan, The Multilateralization of International Investment Law (New York: Cambridge University Press, 2009)CrossRefGoogle Scholar.

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. 3359Google 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.

12 Compare, for example, Venzke, Ingo, How Interpretation Makes International Law: On Semantic Change and Normative Twists (New York: Oxford University Press, 2012), p. 37CrossRefGoogle Scholar (“semantic struggles”).

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.

14 Elster, Jon, “Deliberation and Constitution Making,” in Elster, Jon, ed., Deliberative Democracy (Cambridge: Cambridge University Press, 1998), p. 111CrossRefGoogle Scholar.

15 Marxsen, Christian, “Violation and Confirmation of the Law: The Intricate Effects of the Invocation of the Law in Armed Conflict,” Journal on the Use of Force and International Law 5, no. 1 (2018), pp. 839CrossRefGoogle Scholar.

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.

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