Talking International Law : Legal Argumentation Outside the Courtroom

Talking International Law examines legal argumentation by states and other actors in the settings where it mostly transpires—outside of courts. Challenging the realist assumption that legal argumentation is largely inconsequential, and addressing a gap in scholarship within international law and international relations theory, this book provides a comprehensive analysis of why it occurs, how, where, and to what effect. The volume explores the phenomenon in a range of issue areas, including security, human rights, the environment, trade, and intellectual property. Diplomats and other governmental actors are the principal participants in international legal discourse, but intergovernmental officials, nongovernmental organizations, academics, corporations, and even non-state armed groups also engage in “law talk.” Through close examination of legal arguments in political and other settings, the authors uncover various motives these actors have for making legal claims—including persuasion, strategic calculations, assertions of identity, and the felt need to legitimate one’s actions or to delegitimate those of an adversary. Legal argumentation can have short-term and long-term effects, both intended and unintended, on immediate participants or on a wider net of actors. By bringing together distinguished scholars with diverse perspectives and senior practitioners from around the world who engage in such argumentation themselves, the volume offers a unique exposure to the multifaceted practice of legal argumentation. It thereby deepens our understanding of how international law actually operates in international affairs. "In a decentralized global system that lacks the formal trappings of domestic governance systems, most disputes between and among states and non- state actors never reach either a domestic or an international courtroom for some kind of authoritative resolution. This state of affairs continues, even with the creation of new international tribunals in recent decades. Despite, indeed because of, the relative scarcity of judicial settlement of disputes, international legal argumentation remains pervasive, but notably in a range of nonjudicial settings. States, corporations, nongovernmental organizations (NGOs), and even guerrilla groups make claims in international legal terms in political bodies like the United Nations' organs or domestic parliaments, private diplomatic discussions, and public statements in formal and informal settings. What purpose does such argumentation serve? What are its effects, intended and unintended? Who is engaging in the argumentation? Who is the audience? What, for that matter, counts as a legal argument and how is it different from other kinds of argument? These questions are not all new, but they have never been addressed systematically in one volume. Answering them is critical to a central goal for scholars and practitioners of international law and relations- to understand how international law actually operates in international affairs. This book probes these and other questions related to the place of international legal arguments from a multi- perspectival lens. It brings together a group of scholars and practitioners from around the world who have either written about or engaged in international legal argumentation outside of courtrooms. We draw on various theoretical traditions that address the phenomenon of argumentation in international affairs, either as an element of legal theory or of international relations theory. Yet our approach is largely inductive, looking at the actual practice of legal argumentation in a variety of settings and issue areas. From the cases, we seek to identify patterns and common themes in why, where, how, and to what effect the language of law is used outside of courts. This fills a significant gap in scholarship on international law and international relations by exploring the micro- process of communication using international law"-- Provided by publisher Examining legal argumentation by states and other actors in the settings where it mostly transpires - outside of courts, Talking International Law challenges the realist assumption that legal argumentation is largely inconsequential. Addressing a gap in scholarship within international law and international relations theory, this book provides a comprehensive analysis of why it occurs, how, where, and to what effect by exploring the phenomenon in a range of issue areas, from security and human rights, to the environment, trade, and intellectual property.Diplomats and other governmental actors are the principal participants in international legal discourse, but intergovernmental officials, non-governmental organizations, academics, corporations, and even non-state armed groups also engage in "law talk." Through close examination of legal arguments in political and other settings, the authors uncover various motives these actors have for making legal claims - including persuasion, strategic calculations, assertions of identity, and the felt need to legitimate one's actions - or to delegitimate those of an adversary. Legal argumentation can have short-term and long-term effects, both intended and unintended, on immediate participants or a wider net of actors. By bringing together distinguished scholars with diverse perspectives and senior practitioners from around the world who engage in such argumentation themselves, the book offers a unique exposure to the multi-faceted practice of legal argumentation and thereby deepens our understanding of how international law actually operates in international affairs. Examining legal argumentation by states and other actors in the settings where it mostly transpires - outside of courts, Talking International Law challenges the realist assumption that legal argumentation is largely inconsequential. Addressing a gap in scholarship within international law and international relations theory, this book provides a comprehensive analysis of why it occurs, how, where, and to what effect by exploring the phenomenon in a range of issue areas, from security and human rights, to the environment, trade, and intellectual property. Diplomats and other governmental actors are the principal participants in international legal discourse, but intergovernmental officials, non-governmental organizations, academics, corporations, and even non-state armed groups also engage in "law talk." Through close examination of legal arguments in political and other settings, the authors uncover various motives these actors have for making legal claims - including persuasion, strategic calculations, assertions of identity, and the felt need to legitimate one's actions - or to delegitimate those of an adversary. Legal argumentation can have short-term and long-term effects, both intended and unintended, on immediate participants or a wider net of actors. By bringing together distinguished scholars with diverse perspectives and senior practitioners from around the world who engage in such argumentation themselves, the book offers a unique exposure to the multi-faceted practice of legal argumentation and thereby deepens our understanding of how international law actually operates in international affairs. cover 1 Talking International Law 4 Copyright 5 Dedication 8 Contents 8 Acknowledgments 10 List of Contributors 12 Part I 14 1. International Legal Argumentation: Practice in Need of a Theory 16 2. Why Use the Language of the Law in Global Politics? On the Legitimacy Effects of Claiming to Act Legally 38 Part II 56 3. Arguing about the Jus ad Bellum 58 4. Argumentation in the UN Security Council: International Law as Process 75 5. Protesting the Preamble: Normative Pronouncements and Feminist Jurisprudence in the Security Council 99 6. Persuasion About/​Without International Law: The Case of Cybersecurity Norms 117 7. Nuclear Non-​Proliferation Law: Why Argue and to What Effect? 142 Part III 168 8. Mass Atrocity Crimes and Human Rights Discourse at the UN Security Council: Three Case Studies 170 9. Non-​State Armed Actors and International Legal Argumentation: Patterns, Processes, and Putative Effects 194 10. Argumentation through Law: An Analysis of Decisions of the African Union 216 11. The Sanctions Regime of the African Union in Response to Unconstitutional Changes of Government 231 Part IV 250 12. Legal Argumentation in the Evolving Climate Regime 252 13. Law and Science in Environmental Governance: The Effects of Legal and Scientific Argumentation in the International Whaling Commission 276 14. International Legal Argumentation on Intellectual Property: Two Snaphots from the World Intellectual Property Organization 295 15. Arguing about Trade Law Beyond the Courtroom 311 16. The Privileges and Immunities of the United Nations 329 Part V 350 17. Toward a Theory of Legal Argumentation 352 Index 370