By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Saturday
Apr082017

A Tale of Two Siloes: International Law and International Relations Perspectives

This week’s US missile strike on Syria has provoked much commentary, including on my national security blog. I won’t repeat here my own substantive observations, which have focused on the "use of force" legal issues. (Known to any Romans out there as jus ad bellum.) Here I want to reflect on a more insular academic issue: the pattern of commentary across the international law and relations disciplines.

On slippery slopes

In relation to Syria, most of what I’ve seen from international lawyers has expressed varying (and usually considerable) degrees of unease with the legality of the US missile strike.  If you believe (as I do) that there is no existing legal basis for that strike, you are preoccupied with keeping your shoulder on the door of “use of force” law.  That is so tomorrow we don’t have states chucking missiles at each other, while pointing to the customary international law status of the Donald Trump Doctrine.

In other words, the concern is about lawyerly slippery slopes. (And in this area, they really do exist.  Customary international law is doctrinally inclined to such poor traction.  And in the way arguments about it are advanced, it is a giant water slide).

Most of what I’ve seen from international relations scholars has not mentioned illegality at all, and has focused on, well, the politics (domestic and international) and the tactical repercussions in Syria (and the strategic implications for US power or for alliance relationships). Here, the worries are about a different sort of slippery slope.

There are, of course, exceptions and people who are talking about both categories of issue – but there always are.

On a division of perspective

This divide is not a new topic, nor is it confined to international issues.

Wearing my public law hat, it is remarkable how much Public Law 101 is discussed as if it were all political contingency.  And political scientists sometimes (possibly often, and with some reason) scoff at constitutional lawyers as supplicants to the false god of preordained constitutional scripture.

So too in international matters. In the worst instances, international relations scholars regard international lawyers as painfully naïve about international politics and doctrinally fixated.  And international lawyers, at their worst, regard international relations scholars as unmoored to principle and, in their own different way, naïve about the workings of the international system. 

On balance, international lawyers are the most defensive. They can’t ignore international politics. Some try – and a lot of international law scholarship is sterilized of icky politics.  Still, most international lawyers need to be attentive to international relations if they are to do their jobs – certainly it is difficult to teach the subject without some contemplation of the proverbial political bull in the classroom.  (In one of my international law lectures, I summarize some of Joseph Nye’s excellent summations of international politics and weave in thoughts about how international law matters. When I teach other topics in the law school, I don’t start with a long meditation about “why what we are about to learn matters”.)

What about on the international relations side? I do read a lot of international relations writing.  Just as some international law discussions are platonically preoccupied with doctrine (and nothing but), many international relations scholars are utterly inattentive to international law.  It is at best an afterthought: the small print in the online registration form that you click through on the way to getting to the good stuff on iTunes.  Or it is deployed as a form of motivated reasoning, shoring up conclusions drawn on other bases.

I don’t mean either of these critiques as a haughty dismissal or some sort of typical surly hand-wringing. Part of the problem is that international law sometimes is pretty unimpressive as an explanatory variable in explaining international outcomes. (Although, on this point, I would suggest that if you look closely: international law may not dictate outcomes, but it always affects conduct in some manner. That is: it is not necessarily an explanatory variable, but it is an intervening variable).

Training for two solitudes

Some of this mutual inattention (even dismissal) is simply a function of silos between disciplines. It is possible to become an international lawyer and never be exposed to international relations scholarship or teaching.

And I imagine it is entirely possible in some places to take a degree in international relations without doing the same sort of international law you would get in many/most law schools.  To amplify this point, international law is sometimes said to be what swiss cheese is to cheese: law, but with lots of holes.  And so there are two ways to teach international law: you can focus on the cheese, or focus on the holes.  There is actually a lot of cheese (and it is delicious!).  But the holes, well once you go down them, you may never come out. 

I have no data, but let me hypothesize: international law taught in law schools is fixated on cheese.  International law, when taught in international relations programs, may be (comparatively) fixated with holes.  This isn’t necessarily even by design, but by circumstance.  In law schools, through the magic of transmogrification, our students are supposed to “think like lawyers”. In truth, no one really knows what that means.  But at the very least, it means a zealous preoccupation with the “rule of law”.  The rule of law does not translate well to international law.  And so like shipwrecked sailors, international lawyers cling to the debris of HMS Rule Of Law.  Rules!  Give me a rule!  Please, I’m sinking!

Taught as part of a political science or international relations program, international law is just one more thing in the ocean.  And not even the most interesting thing. (Oh, look a deep dark underwater policy cave to explore!)

On top of that, international lawyers learn a grammar, and evaluate what is said and done in international relations via the straightjacket of that grammar.  And assessed by the standards of that grammar, much of what is said and done sounds like: “Tarzan shoot missile”.

Meanwhile, for those not anointed to the Dark Arts, the international lawyer’s grammar produces things like: “The aforementioned herewith stipulates the jus cogens nature of conventional rule governing the above named matter, relating to jus ad bellum”.

On separate but equal cultures

In addition, international lawyers will be normative and prescriptive where international relations scholars will be empirical and theoretical. 

But both could learn from each other. In some respects, international lawyers are classic conservatives: law is the dead hand of the past, and like Edmund Burke we think it sometimes encapsulates useful guidance to past wisdom. And yet, lawyers are advocates, creating tension. Not least: the advocacy thrust can sometimes be a problem when advocacy bleeds into expedient norm-entrepreneurship. (You may be entitled to your opinion, but not to your super-excellent-customized international law).  But still at its best, this tension attunes lawyers as fixers and problem solvers. (Yes I know, no one believes that. But we’re not all about muddying clear waters in that cool underwater policy cave.) 

Still, we could learn a lot from social science empiricism.  (For instance: establishing the existence of a customary international law rule is, at core, an empirical exercise.  But it is rare to find a claim to a customary international law rule amounting to more than “people are saying”.)

For their part, international relations people might sometimes benefit from an injection of normative purpose. Or (because many do produce policy-oriented scholarship) those policy prescriptions shouldn’t be totally indifferent or totally disinterested in existing international law. Remember that dead hand of the past sometimes contains wisdom.

So what

So why does all this matter?  Well, I think siloed disciplinary discussions are just unacceptable, period.  It makes the same impression as one hand clapping.  But more generally, I often worry about international law-lite discussions of international relations. (Talk about self-interest. It’s not like I don’t teach in both a law school and international relations program. I am obviously a convert to my own creed.)

But I do have an honest policy reason for this concern: treating international relations (or, for that matter, domestic politics) as politically contingent amounts to a self-fulfilling prophecy: if enough people don’t think law matters, it won’t. Law is a cultural practice. International law is often about reining in our worst instincts and advancing those of our better angels. I fear law-lite discussions risk shucking off the dead hand of history with unpleasant consequences.

So what does that mean for the Syria thing: in truth, we could all use some help thinking through how best to keep the shoulder on the door of use of force law. But without also throwing up our hands and advancing positions that amount to de facto impunity for crimes against humanity.