Torture

This chapter focuses on the legal status of torture, assessing the implications of an international ban on torture that coexists with a nontrivial level of torture in practice. This is not simply a case of torture law being violated. There is wide, perhaps unanimous, agreement that torture is prohibited by international law, and the legitimacy of the ban is rarely contested. The rule is established most directly by the Geneva Conventions and 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment (CAT), but it is also widely held that torture is outlawed under jus cogens norms intrinsic in the international system. Despite this, many governments engage in practices that seem clearly prohibited by laws against torture. Much of this behavior comes with detailed defense of its legality. Thus, the politics of torture generally address questions of what constitutes torture, not concerns over the ban itself. This is precisely how the Bush administration used anti-torture law: to demonstrate that its actions were not subject to the rules. Officials sought a zone of legally protected irresponsibility. They used international law against torture as tools to legalize torture.

The Rule of No Law

This chapter explores the legality of latter-day weapons—specifically, nuclear arms and lethal drones—to consider the potential for voids in the coverage of international law. When technological or other developments enable previously inconceivable kinds of warfare, states face open legal questions. Recent debates over the legality of U.S. drones illustrate this, as do earlier debates about the legality of nuclear arms. The weapons arise in a kind of legal vacuum, empty of specific regulation. Drawing on these examples, the chapter considers the power of the international rule of law in situations where there may be no law. With respect to nuclear weapons, the International Court of Justice decided that despite there being no directly applicable laws, use is nonetheless governed by international law. Rules designed for other weapons are relevant, as is a general principle that in the end, international law must defend states' rights to protect their national security as they see fit. These two sets of resources—general principles and analogies to other laws—are also important in legal debates over drones today: the lawfulness of drones as instruments of war is inferred from the legality of what are said to be analogous weapons from earlier times, and the needs of the state are internalized in legality debates through the mechanism of self-defense.

Introduction

This introductory chapter provides an overview of the politics of the international rule of law. The big debates in world politics today are inseparable from international law. Controversy over what is and is not legal is standard fare in international conflicts, and commitment to rule of law is presumed a marker of good governance. Yet the politics of the international rule of law are not so simple and are rarely investigated directly. This book shows that international law is properly seen not as a set of rules external to and constraining of state power but rather as a social practice in which states and others engage. They put the political power of international law to work in the pursuit of their goals and interests. Indeed, governments use international law to explain and justify their choices. This is both constraining and permissive. On the one hand, states must fit their preferences into legal forms. On the other hand, they are empowered when they can show their choices to be lawful. Thus, international law makes it easier for states to do some things (those that can be presented as lawful) and harder to do others (those that appear to be unlawful). The book then looks at how the concept of international law is used in world politics and to what ends.

How to Do Things with International Law

This chapter presents an account of the international rule of law that reflects the particular dynamics of international politics, drawing on legal realism and practice theory in international relations (IR). On this reading, the international rule of law is a social practice that states and others engage in when they provide legal reasons and justifications for their actions. The goal may be either political legitimation for oneself or delegitimation of adversaries. This sort of use of international law both relies on and reinforces the idea that states should act lawfully rather than unlawfully. The priority of lawfulness is taken for granted. The chapter then outlines an approach which helps to make sense of international law's contribution to contemporary disputes and crises.

The Empire of International Legalism

This concluding chapter argues that the international rule of law is a structure of political authority. It creates a hierarchy in international affairs in which legal obligations are superior and governments are subordinate. The structure depends on and is reinforced by the widespread practice of legal justification by states. Within that structure, international law is at once constraining, empowering, and constituting of the foreign policies of governments. The chapter uses the language of “empire” to describe this structure. It is a centralized and hierarchical system that unites its subjects under a single political authority, the empire of international legalism. Under the empire of international legalism, policy must be made consistent with legal obligations. However, this just means that foreign policy decisions have to come with legal reasons, and political disputes turn into arguments over what the law permits or forbids. In theory, one cannot say what the results will be.

The Permissive Power of the Ban on War

This chapter examines a classical area of international law: the use of force by states. The ban on war is often cited as the centerpiece of the modern international legal-political system and used to distinguish the contemporary age from earlier, less legalized periods. Liberal convention sees the ban on war as a legal constraint on states' political choices; states seeking to uphold the international rule of law are advised to refrain from using force against other states. However, this understanding is flawed. The UN Charter outlaws some kinds of war and permits others, such as those undertaken in self-defense. The chapter then demonstrates that the Charter is a mechanism by which law sorts the motivations for war into lawful (self-defense) and unlawful (all others) categories. It thereby creates a framework to legitimate wars and reduce their political costs. The Charter is not antiwar: it is explicitly permissive of war so long as the claimed motive is self-defense.

The Rule of Law, Domestic and International

This chapter looks at the domestic rule of law and its uneasy translation to international politics. The central claim is this: the domestic rule of law is in effect when there exists a set of stable public laws binding in theory and practice on both citizens and the state. There are two main lines of debate in existing literature on the domestic rule of law. The first asks whether individual human rights and collective social welfare are effects of the rule of law or constitutive of it. The second debate involves how the rule of law can be distinguished from rule by law, in which the state uses the framework of law instrumentally to legitimate and reinforce its domination. Three claims about the rule of law are constant across these debates: that rules should be public and stable, that rules should apply to the government as well as the citizens, and that the rules should be applied equally across cases. None of these translates easily to the realm of international law. Thus, domestic rule of law provides an unsuitable model for an international equivalent.