How International Law Really Works – And Why It Matters

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When I first joined the Foreign Office, a venerable legal adviser gave me sound advice on international law. He told me never to ask what I could do under international law, because the answer would be nothing. Rather I should tell him what I wanted to do, and he would compose me a legal justification. However, if I wanted to commit genocide, I needed to give him an extra week’s notice as that would be more complicated. This was not just diplomatic black humour. It was legal advisers in the British foreign office who subsequently constructed the legal justification for the NATO bombing of Serbia and Kosovo. There is, however, a more important point about how international law functions, and what that means for diplomacy.

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Neither the realists, who think that international law does not exist, nor the liberals, who think it an amplified version of domestic law, really understand how international law functions. Hedley Bull’s concept of the international community, to which countries want to belong, captured it much better, as those who have done diplomacy understand. I have yet to encounter a government that asks its officials what international law says that it should do. Rather the government establishes the actions that national interest dictate, and then seeks advice from its officials and diplomats how those actions can be made to appear to accord with international law. Governments are not concerned with obeying international as much as with appearing to do so. Although this may appear unduly cynical, and betraying an amorality almost equivalent to that of the realists, in fact this way in which international law functions does provide a significant limitation on what governments can do.

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The Russian invasion of the Crimea and the destabilisation of eastern Ukraine provide an example. Although much western media tends to portray Putin as an authoritarian dictator who ruthlessly pursues Russian interests without thought for international law or human rights, this is not altogether true. Putin has his own image of himself as a moral actor, however much we may disagree, and of Russia as a major international player. Although he may not be shy of the ruthless pursuit of what he perceives as Russia’s interests, he wants to do so with at least the appearance of obeying international law. The Crimea was secured by Russian forces without insignia at the “request of local people”. The Crimea was annexed only after a referendum voted in favour of it becoming part of Russia. Putin repeatedly denied the presence of Russian regular forces in eastern Crimea. We may know this is all a charade, but it was important for Putin to appear to be behaving with at least some kind of international legality, in this case calling on the principle of self-determination (which we ourselves had used not long before to justify the independence of Kosovo). This need for the appearance of legality constrained what Putin was able or willing to do in the Ukraine. Although most military experts believe that the Russian army would have easily and quickly over run the whole of the Ukraine, Putin was unwilling to do so. To have done so would have put Russia outside the international community, and destroyed any pretence of international legality in Russian foreign policy.

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There are some important points here for how we do diplomacy in the 21st-century. Firstly, we must think very hard before expelling any state from the community of nations. Once a government feels itself outside that the community, it no longer needs to maintain the pretence of obeying international law. At that point the self constraint which international law encourages disappears, and the country becomes a more dangerous and unpredictable international actor. Conversely, there is much to be said for bringing countries within the international community wherever possible. I have argued in a previous blog that we should do this with North Korea. Once North Korea feels itself a full member of the international community, and its diplomats are socialised into the international community of diplomats, the incentives will increase for appearing to behave legally. While this might not get rid of North Korea’s nuclear weapons program (which is in any case in part a response to the incoherence of western policy) it could discourage their use. Secondly we should accept that the functioning of international law is messy, far from consistent and subtle. We should not obsess about its rigid application lest we exclude more countries from its embrace.

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This may have particular application in cyberspace. This is the subject for another blog. However, at present we confront the risk of cyberspace developing as a Hobbesian world of all at information warfare with all (not to mention other forms of cyber warfare and cyber espionage). One of the objections to negotiating protocols or norms of behaviour in cyberspace is that you cannot know if a country is obeying them, and that there are many international actors you cannot trust. However, if we see international norms and protocols as social constructs, rather than rigid legal systems, which countries want to be seen to be following, we might make better progress. If Russia’s or China’s (or the US’) behaviour in cyberspace is seen as just as an important element in their pretence to international legality as their behaviour in the real world, it could serve to constrain that behaviour. As ever in diplomacy, the outcome is not perfect, but it might just be good enough.

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