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The Politics of International Law
by Dr Colin J Harvey, Assistant Director,
Human Rights Centre. School of Law, Queen's University of Belfast
Courtesy: Ethnic Conflict Research Digest (ECRD) Volume 3, Number 2 (September 2000)
"International law is political. There is no escape from contestation. Hard lessons indeed for lawyers who wish to escape the indeterminate nature of the political. For those willing to endorse this the opportunities are great. The focus then shifts to interdisciplinarity and the horizontal networks which function in practice in ways rendered invisible by many standard accounts of law. This of course has important implications for how we conceive of law's role in ethnic conflict. We must abandon the myth that with law we enter the secure, stable and determinate. In reality we are simply engaged in another discursive political practice about how we should live."
REVIEWING: Philip Alston and James Crawford (eds.), The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000) 563 pp. Index. Pb. £19.95; ISBN 0-521-64574-3. Hb.:£55.00; ISBN 0-521-64195-0; Chaloka Beyani, Human Rights Standards and the Movement of People Within States (Oxford: Oxford University Press, 2000) 164 pp. Index. Hb.: £45.00; ISBN 0-19-826821-1; Michael Byers (ed.), The Role of Law in International Politics (Oxford: Oxford University Press, 2000) 364pp. Index. Hb.: £50.00; ISBN 0-19-826887-4.
All of the works under review grapple, in a variety of different ways, with the relationship between international law, politics and enforcement. One of the problems with international law is that it is weak when it comes to effective enforcement. It remains the case that it still relies on the consent of states to work. There are of course many actors in the international community and a bewildering number of new mechanisms, but the traditional model retains a significant grip. This is evident in the contributions to the Alston and Crawford collection in particular. So although all these works are different, they all have important things to say about the current state of international law and politics.
The contributors to the Alston and Crawford collection provide a wealth of detail on the practical operation of the current human rights treaty monitoring systems. This includes insights from those with practical experience of their operation. There are interesting contributions from: Henry J. Steiner (Human Rights Committee); Michael Banton (Committee on the Elimination of Racial Discrimination); Mara Bustel (Committee on the Elimination of Discrimination against Women); and Andrew Clapham (NGO perspective). The inclusion of sections on national influences and regional perspectives is very useful. The contribution by Anne Gallagher is particularly good, as she gives priority, correctly, to the 'national' level. The chapters on practical problems are also insightful for the outsider wishing to know the severe problems with these mechanisms. In the conclusion the editors believe that the contributors have given us an empirical and critical view of the issue. Oddly, they then decry the paucity of conceptual theoretical work in this field. Could they not have made the effort of including such a dimension? One wonders on what basis contributors are selecting their claimed critical perspectives. The truth is that there is little that is 'critical' in this work in any substantive sense and unfortunately this is not the exception in human rights law scholarship. We are taken by the hand through the avenues of human rights monitoring institutions by those 'in the know'. This is fine as far as it goes and quite interesting. It is however hardly the stuff of real critical legal scholarship.
The same difficulty is evident in Chaloka Beyani's slim volume. Now this is an area where there are interesting things to say. Beyani examines the rules on free movement within states generally, as well as looking at the treatment of minorities, indigenous people and refugees. While it is useful to have a general statement of the legal position, this has been done before. A chance to say something interesting is missed here. This is not to say that the book is without merits. It offers a description of current rules. But a clear thesis is missing and the author never makes any of his theoretical premises explicit.
The final work is particularly good and addresses many of the gaps in the other works reviewed. The Michael Byers' collection is excellent and makes a real contribution to thinking on the role of law in international politics. This is because the contributors address the political directly. In impressive contributions by Martii Koskenniemi, Christine Chinkin and Anne-Marie Slaughter we are treated to examples of what scholarly work in this area should look like. Koskenniemi analyses an important debate from the Weimar Republic involving Carl Schmitt and Hans Morgenthau. He places modern arguments in historical context and thus highlights the value of historical retrieval. Slaughter has made an important contribution to our understanding of transnational networks. In her chapter she explores economic regulation. Her message to international lawyers will not be a welcome one. It will require them to abandon their traditional views of the rule of law to focus on horizontal networks. She is of course correct, one wonders how the message will be received in practice though.
International law is political. There is no escape from contestation. Hard lessons indeed for lawyers who wish to escape the indeterminate nature of the political. For those willing to endorse this the opportunities are great. The focus then shifts to interdisciplinarity and the horizontal networks which function in practice in ways rendered invisible by many standard accounts of law. This of course has important implications for how we conceive of law's role in ethnic conflict. We must abandon the myth that with law we enter the secure, stable and determinate. In reality we are simply engaged in another discursive political practice about how we should live.