5.4: The Functioning of International Law
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In order to understand how different actors make normative claims and how they use international law, the aforementioned broader perspectives offer valuable insights. The emergence of a norm like the prohibition of torture and its influence start long before such a norm is codified in an international treaty. Political scientists and legal scholars have described a normative ‘life cycle’ that relies on a (transnational) social process which is characterised by an initial norm emergence, followed by early adoption of this new norm, spreading of this acceptance and ultimately by widespread internalisation of the norm and compliance with it.
For the first stage of norm emergence, the influence of so-called ‘normentrepreneurs’ (such as private individuals, lobbying groups, nongovernmental organisations) is essential. Through a combination of means (e.g. framing of issues, campaigning, empathy appeal, persuasion, shaming, claiming, declaring, etc.) and on different organisational platforms, the normentrepreneurs try to enunciate norms and persuade governments to embrace them. In the case of torture, this meant that even literary novels and political pamphlets contributed to a change in social perception and an increase of empathy with victims which in turn led to the social unacceptability of torture.
Once a ‘critical mass’ of actors have adopted a new norm prohibiting torture or of a responsibility to protect, a threshold or tipping point is reached. At this second stage, the norm starts to spread through international society. Here an active process of transnational – domestic, regional and international – socialisation takes place which, primarily, states, international organisations and networks of norm entrepreneurs carry forward. Those state and non-state actors that have endorsed the norm engage in a process of redefining what qualifies as appropriate behaviour within international society. Social movement theory, which studies mobilisations in society to make collective claims about social changes, provides valuable insights on the conditions and effects of this process.
A third phase of internalisation or obedience is reached when norms ‘achieve a “taken-for-granted” quality that makes conformance with the norm almost automatic’ (Finnemore and Sikkink 1998, 904). If this process succeeds, norms such as the prohibition of torture become truly transnational in the course of this process. They exert normative force domestically through constitutional guarantees and through the work of civil society groups. In addition, the norms are invoked in regional and in international human rights fora such as regional and international courts or human rights bodies. Thus, these norms acquire a transnational character through interactions between a variety of actors – both state and non-state – across issues areas and across historic public/private and domestic/international dichotomies (Koh 1997, 2612).
This, however, does not mean that international law is a guarantor for a just global order. Much rests on the will and interests of the actors involved. International law itself cannot solve injustices and cannot manufacture solutions. Ultimately, many of the politically charged issues simply reflect in the language of international law. For example, we have seen already that international law prohibits the use of force by states in peace times except when the forceful measures have been authorised by the UN Security Council or when a state acts in self-defence (Article 51, UN Charter). In this scenario, not only politicians but also international lawyers will argue in legal terms whether the use of force against an (allegedly) imminent terrorist attack that has not yet occurred can be justified as a form of ‘pre-emptive’ self-defence. Similarly, since it is not illegal to kill enemy combatants during an armed conflict, international lawyers will exchange legal arguments about whether terrorists qualify as combatants and whether the killing of terrorist suspects in a foreign country is permissible under international law because of a continuing global war on terror that amounts to a state of armed conflict. Finally, also in the ambit of our example on the prohibition of torture, lawyers will argue about whether the situation of a hidden ticking bomb might exceptionally permit torturing the apprehended attacker if this could save innocent lives.
This is not to say, however, that international law is inherently indeterminate or arbitrary. The normative force of international law lies in the creation of new argumentative needs, in the possibility to challenge established positions, in the specific required modes of argumentation, in the institutionalised fora for conflict resolution and in the justificatory potential that rests in law.