Law as deliberative discourse: the politics of international legal argument - social theory with historical illustrations.

Author:Suttle, Oisin
 
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  1. INTRODUCTION II. FROM LAW AS RULES TO LAW AS DELIBERATIVE DISCOURSE III. IRELAND AT THE UN SECURITY COUNCIL AND GENERAL ASSEMBLY 1. NORTHERN IRELAND AND THE UNITED NATIONS: EMERGING THINKING 2. FROM DOMESTIC DISCOURSE TO INTERNATIONAL LAW AS COMMON LANGUAGE 3. PRECEDENT AND THE DYNAMICS OF LEGAL ARGUMENT 4. THE LIMITS OF LAW: POLITICS AND POWER IV. IRELAND V UNITED KINGDOM AT THE EUROPEAN CONVENTION ON HUMAN RIGHTS 1. POLITICAL BACKGROUND 2. TRANSLATING POLITICS TO LAW 3. EVOLVING THINKING: THE THREAT AND THE PROMISE OF STRASBOURG. 4. CONSTRUCTING AND CONTESTING THE LEGAL SPHERE 5. FROM INTERNATIONAL LAW TO DOMESTIC NARRATIVE V. CONCLUSION ANNEX: ARCHIVAL MATERIALS I. INTRODUCTION

    On 2 October 1972, Adrian Thorpe, an official in the UK Foreign and Commonwealth Office, circulated a memorandum urging that the United Kingdom consider, as a matter of urgency, withdrawing from the European Convention on Human Rights (the ECHR), a treaty which it had negotiated two decades earlier. (1) ..

    At the forefront of Thorpe's mind was the situation in Northern Ireland. The conflict that would become known simply as 'the Troubles' was entering its fourth year, and 1972 was to be its bloodiest; 479 people were killed that year, including 148 members of the security forces. (2) .. It was, in these terms, the biggest domestic threat to any Western European state in the post-war era. As the conflict escalated, the government in Westminster had been forced into increasingly drastic responses: the deployment of British troops to maintain order in August 1969; the introduction of internment without trial in August 1971; and the suspension of devolved government in March 1972. (3) However, the memo's focus was not the overall security situation. Rather, it was a complaint made by the Irish government under the ECHR in respect of security policy in Northern Ireland, alleging discrimination, brutality and torture of detainees. As Thorpe wrote, it seemed likely that an interfering neighbour and a legalistic convention would together see the UK denounced for officially sanctioning torture. It was, he suggested, time to re-examine the Convention's value. It was all very well signing up to human rights standards--although these obviously did nothing to improve human rights in the country--but to be forced to defend one's actions before an international tribunal and to conduct foreign policy through the medium of law was surely more than any pious human rights document was worth? (4) The UK acceded to treaties because it intended to comply with them; what purpose was served by protracted argument over whether and how far it actually did so?

    Such concerns are echoed in contemporary debates about the UK's relation to the ECHR. However my interest in this episode is not as a forerunner of today's debates. Rather, in this paper I examine the Irish ECHR complaint, together with a slightly earlier initiative at the United Nations, as case studies of the political role of international legal argument.

    These are cases of politicised law, and legalised politics. As such, they highlight the limits of the dualism characterising much contemporary scholarship on the politics of international law, instead illustrating the ways that international law and international politics are mutually implicated, and mutually constructed, as aspects of a single deliberative discourse. Making sense of these interactions demands a new theoretical approach, which integrates legal and political argument, and links these to logics of political action and outcome. Articulating and applying that approach is a key task of this paper.

    The next section introduces some key features of the literature on the politics of international law, criticising the existing compliance literature and various strands of constructivist discourse theory which express, in different ways, an unhelpful opposition of law and politics. Instead, I propose an integrated model of legal and political argument, building on Habermasian communicative action theory. Various scholars have hypothesised that international politics can be in part understood as communicative action, but have struggled to demonstrate such action in specific cases. I extend their approach, locating legal argument within its wider deliberative context, and suggesting how legal and non-legal logics interact, and how agents' dual roles, participating in both international and domestic discourses, limit, without pre-empting, such international communicative action. By understanding international law and politics as thus mutually implicated we can better appreciate the ways political agents make use of, whilst being simultaneously shaped by, legal institutions and arguments.

    Subsequent sections interrogate two historical cases from the Northern Ireland conflict to show these logics in action, not only as limits on agents, but as sources of action, suggesting that at various points we can identify agents revising their factual and normative understandings through communicative interaction, and thereafter acting on these revised understandings. Section 3 examines the Irish government's unsuccessful attempts in 1969 to initiate a debate on Northern Ireland at the United Nations, first in the Security Council and subsequently in the General Assembly. While no substantive debate took place in either forum, the implications of action, both legal and practical, were fully canvassed by both states in the course of intensive lobbying. The complex normative questions raised, involving claims of a territorial dispute, a post-colonial situation, a domestic conflict and a human rights issue, make this an excellent case for examining legal argument within ostensibly political processes. Section 4 examines Ireland's inter-state complaint under the ECHR. This was only the fourth inter-state case under the ECHR. Like the UN initiative, it was a response to politically sensitive developments in Northern Ireland. However, the institutional context is different. It is more explicitly legalised, and third states are less relevant. While the UN case illustrates law in the domain of politics, the ECHR case is more clearly one of politics in the domain of law. The two case studies, while closely linked, thus offer opportunities to examine the politics of international legal argument in quite different settings.

    The paper makes novel contributions on a number of key questions at the boundary of international law and international relations. First, it provides a new perspective on debates about the causal role of international law, highlighting the role of invocation and argument in linking norms to actions, and providing a rare empirical examination of the claims of communicative action theory at the international level. Second, it provides an original account of the relation between specifically legal, and more general political, concerns, showing both how the turn to law restrains and empowers different agents, and the continued mutual embeddedness of legal and political discourses. Third, it moves beyond sterile debates about the priority of domestic or international factors, showing how legal and political discourses at each level interact, and how carefully examining these interactions can help us understand the limits and possibilities of international law.

  2. FROM LAW AS RULES TO LAW AS DELIBERATIVE DISCOURSE

    The literature on the politics of international law is vast, and summarising it is beyond the scope of this paper. (5) Different schools of international relations theory suggest different accounts of the political significance of law, ranging from realist scepticism through institutionalists' cautious acceptance to constructivists' thorough embrace. (6) However, much of this existing literature is characterised by an unhelpful dualism. Law and politics are understood as distinct, prompting questions about how each affects the other. (7)

    This is most obvious in the compliance literature, which examines whether, to what extent, and under what conditions, states comply with international law. (8) The compliance question, so stated, assumes a causal relation between law and agent. Whether this is understood as expressing a logic of consequences or appropriateness, it implies that law exists apart from, and prior to, agent and action.

    This, however, ignores an important feature of international legal practice, namely the way legal norms are invoked. Many--perhaps most--norms may directly and uncontroversially determine agents choices. (9) But when international law becomes visible, it is because it is invoked, by specific agents, whether to justify their own behaviour, or to challenge, criticise of persuade others. (10) The intersubjectivity of legal norms thus goes beyond their social constitution to include an important social quality in their operation. (11) We need a model that can account for this.

    This objection is not new. However, the alternative models of normative invocation and contestation that critics of compliance propose in fact reproduce this duality, albeit in different forms.

    The contested compliance literature, for example, recognises the role of argument in clarifying legal norms, and thereby determing what constitutes compliance or breach. (12) Law cannot be understood as prior to interaction. (13) However, its logic of action continues implicitly to distinguish norm (law) and agent (politics). Agents stand apart from the norms they are debating. Politics and law interact, but they do so within the domain of law. However, in the cases I examine, agents and actions, as well as norms, are objects of discursive contestation. The question 'what does this rule require?' is relevant only as it impacts the practical question, 'what should I/we/you do?'; and the latter question rarely reduces to the former. Contested compliance dereifies the norm; but what is required is to dereify the agent.

    Another prominent approach is...

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