Response: Coexistence, Cooperation, Conflict: What Role for International Law?

by Nico Krisch*

Monica Hakimi’s intriguing new piece, The Work of International Law, presents a timely challenge for schematic accounts of international law currently spreading through scholarship. Pushing international law’s intimate relationship with conflict into the foreground, Hakimi calls into question the widespread focus on cooperation as the main goal and yardstick of the international legal order. Hakimi aims especially at recent rational-choice-inspired accounts of international law in the United States, but her account also encompasses more European-style approaches that see international law as an alternative to conflict, as a tool for helping states to work together rather than clash. At times her article paints cooperative views of international law too broadly, but overall its charge is correct: an excessive focus on cooperation is likely to make us misunderstand the way international law works, and misconstrue our standards for evaluating it normatively.

Hakimi urges us to recognize that international law not only seeks to defuse conflict, but also enables it, in particular by creating the playing field on which international disputes can be staged and by producing normative positions that actors can mobilize in their favor. On this account, states will often only become aware of a potential conflict, and will initiate conflicts, because of the way legal positions are framed. Cooperation and conflict then often appear as symbiotic and no longer as antithetical. This dynamic has repercussions for our view of international law: in Hakimi’s words, “[c]onflict is part of the project of international law”.

Hakimi’s diagnosis is largely convincing: think, for example, of the way in which territorial sovereignty raises the stakes of borders and invites conflict over their location. Yet Hakimi’s approach is incomplete because it unearths only a small part of international law’s tight link with conflict. The conflicts the piece highlights appear as rather benign: conflicts over the meaning of legal norms, as in WTO law; or conflicts that are instrumental for pursuing positively valued goals like cooperation or peace, as with Security Council action in the Iran nuclear conflict or military action licensed under the ius ad bellum. But hasn’t international law been implicated in conflicts in a much deeper, and likely more pernicious, way? Has it not given cover, over centuries, for the appropriation of large parts of the earth by European powers? Does it not allow, as in the interpretation of the non-intervention norm, for all kinds of economic coercion by wealthy states? Does it not maintain a neoliberal trade and investment regime even as more and more countries see it as an imposition? And has it not licensed a nuclear arms race between the superpowers?

The conflicts arising from these issues do not figure in the article, and their omission is not accidental. A key reason for the omission is that Hakimi seeks to give not merely an account of what international law does, but also an account that is defensible, one that lets international law appear in a positive light, one that suggests what international should do. As a result, Hakimi highlights international law’s role in fostering conflicts with a rather positive connotation. But a convincing picture of international law need not be normatively justifiable. Many parts of the actual “work of international law” might be eminently unjustifiable, or at least appear so from the vantage point of some participants. Hakimi’s intention of rescuing international law from unwarranted normative charges—typically grounded in its limited ability to bring about compliance and cooperation—constrains her from developing the full potential of her conflictual account.

Hakimi also hides the depth of international law’s conflictual character because she employs a somewhat agentic depiction of international law. In a way that is not uncommon in legal scholarship, international law is seen to have “goals” and “a project,” and this rhetoric nudges us towards identifying benign goals and projects—especially if we see ourselves as participants in the practice of international law. If, in contrast, we depict international law as an institution, as a site in which actors struggle for their different goals and projects, and which produces effects in the world, we are bound to be more open to the potentially negative and often unintended effects this institution might have. Actors may be shaped by international law, but they also approach it instrumentally—and typically not simply to achieve “cooperation” but also, or primarily, to enshrine their own views and values, hoping to use international law to shift international politics as far as possible towards their own substantive goals. In such a picture, conflict is not merely an occasional effect, but it sits at the center of the international legal edifice: law is a reflection of conflict as well as a continuation of it, sometimes through balancing different positions, sometimes through privileging certain of them in institutionalized forms of domination.

Conflict is thus ubiquitous in international law, just as it is in domestic law. In fact, domestic law is often seen as a vehicle of conflict, even of violence. Robert Cover’s essay, Violence and the Word is a famous example. In the international realm, different literatures pursue similar themes; critical approaches of various kinds have contributed especially important insights into the ways in which social and political conflict is enacted through (and often hidden behind) legal institutions. Likewise, we might borrow from international relations scholars of different leanings—from realist to Marxist to Foucauldian—to better understand the way law and institutions are implicated in international conflict.

But of course, these approaches have mostly analytical and critical aims, and this is not only, or not even primarily, what Hakimi is after. As suggested above, she seeks to develop an account of international law that embraces conflict normatively. Even though she does not frame it explicitly in this way, she appears to be motivated by the question: When would it be legitimate for international law to foster or allow for conflict, and what kind of conflict would that be? The result of such an inquiry is a different metric of assessment for international law—one in which conflict, or a failure of cooperation, does not directly lead to a negative score.

Hakimi takes the first steps in this inquiry, and she persuasively shows that there is much to be gained from pursuing it. Law can be highly valuable when it provides a space of contestation, exhibits existing disagreements, or empowers weak actors to initiate struggle. Construing an evaluative yardstick for this, however, is a huge task, one that would require both deep empirical analysis and normative theorizing. “The Work International Law Should Do” would include conflict as well as cooperation and other goals. But in what combination, and for which contexts, remains an open question, with widely varying answers depending on one’s origin, perspective and values.

* Nico Krisch is a Professor of International Law at the Graduate Institute of International and Development Studies, Geneva.