This page intentionally left blank The Politics of International Law Politics and law appear deeply entwined in contemporary interna- tional relations. Yet existing perspectives struggle to understand the complex interplay between these aspects of international life. In this path-breaking volume, a group of leading international relations schol- ars and legal theorists advance a new constructivist perspective on the politics of international law. They reconceive politics as a field of hu- man action that stands at the intersection of issues of identity, purpose, ethics, and strategy, and define law as an historically contingent insti- tutional expression of such politics. They explain how liberal politics has conditioned modern international law and how law ‘feeds back’ to constitute international relations and world politics. This new perspec- tive on the politics of international law is illustrated through detailed case-studies of the use of force, climate change, landmines, migrant rights, the International Criminal Court, the Kosovo bombing cam- paign, international financial institutions, and global governance. christian reus-smit is Professor and Head of the Department of International Relations in the Research School of Pacific and Asian Studies at the Australian National University. He is the author of American Power and World Order (2004), The Moral Purpose of the State (1999), co-author of Theories of International Relations (2001), and co- editor of Between Sovereignty and Global Governance (1998). CAMBRIDGE STUDIES IN INTERNATIONAL RELATIONS: 96 The Politics of International Law Editorial Board Steve Smith (Managing editor) Thomas Biersteker Phil Cerny Michael Cox A. J. R. Groom Richard Higgott Kimberly Hutchings Caroline Kennedy-Pipe Steve Lamy Michael Mastanduno Louis Pauly Ngaire Woods Cambridge Studies in International Relations is a joint initiative of Cambridge University Press and the British International Studies As- sociation (BISA). The series will include a wide range of material, from undergraduate textbooks and surveys to research-based monographs and collaborative volumes. The aim of the series is to publish the best new scholarship in International Studies from Europe, North America, and the rest of the world. CAMBRIDGE STUDIES IN INTERNATIONAL RELATIONS 96 Christian Reus-Smit (ed.) The politics of international law 95 Barry Buzan From international to world society? English School Theory and the social structure of globalisation 94 K. J. Holsti Taming the sovereigns Institutional change in international politics 93 Bruce Cronin Institutions for the common good International protection regimes in international society 92 Paul Keal European conquest and the rights of indigenous peoples The moral backwardness of international society 91 Barry Buzan and Ole Wœver Regions and powers The structure of international security 90 A. Claire Cutler Private power and global authority Transnational merchant law in the global political economy 89 Patrick M. Morgan Deterrence now 88 Susan Sell Private power, public law The globalization of intellectual property rights 87 Nina Tannenwald The nuclear taboo The United States and the non-use of nuclear weapons since 1945 86 Linda Weiss States in the global economy Bringing domestic institutions back in 85 Rodney Bruce Hall and Thomas J. Biersteker (eds.) The emergence of private authority in global governance (List continues at the end of book) The Politics of International Law Edited by Christian Reus-Smit Australian National University cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK First published in print format isbn-13 978-0-521-83766-8 isbn-13 978-0-521-54671-3 isbn-13 978-0-511-21195-9 © Cambridge University Press 2004 2004 Information on this title: www.cambrid g e.or g /9780521837668 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. isbn-10 0-511-21372-7 isbn-10 0-521-83766-9 isbn-10 0-521-54671-0 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback p a p erback p a p erback eBook (EBL) eBook (EBL) hardback Contents List of contributors ix Preface xii 1 Introduction 1 Christian Reus-Smit 2 The politics of international law 14 Christian Reus-Smit 3 When states use armed force 45 Dino Kritsiotis 4 Soft law, hard politics, and the Climate Change Treaty 80 Robyn Eckersley 5 Emerging customary norms and anti-personnel landmines 106 Richard Price 6 International law, politics, and migrant rights 131 Amy Gurowitz 7 The International Criminal Court 151 David Wippman 8 The Kosovo bombing campaign 189 Nicholas J. Wheeler 9 International financial institutions 217 Antony Anghie vii Contents 10 Law, politics, and international governance 238 Wayne Sandholtz and Alec Stone Sweet 11 Society, power, and ethics 272 Christian Reus-Smit Bibliography 291 Index 316 viii [...]... and lines of reasoning Nevertheless, I show how our reconsideration of the politics of international law destabilises dichotomous modes of speaking about the nature of international society, proffered primarily by exponents of the ‘English School’, reinforces social conceptions of power, and exposes the limitations of international communicative ethics 13 2 The politics of international law Christian... another reading, however, the title conveys the idea of politics within law, the idea that law can be constitutive of politics, that politics may take a distinctive form when conducted within the realm of legal reasoning and practice As explained in the preceding chapter, one of our central purposes is to elucidate these two faces of the politics of international law, to better understand the nature of. .. politics and law through an examination of the major issues that divided the United States from the large majority of other states that voted to adopt the Rome Statute of the Court, in particular the role of the Security Council, the powers of the prosecutor, the questions of jurisdiction and state consent, the issue of complementarity, and harmonising of diverse legal systems While acknowledging the. .. which ‘states themselves have come to accept the essential autonomies of law and politics in their practices’.13 States have created a legal realm, in which the politics of power and interests is subordinated to the politics of norm-referential argument Within this realm, law structures politics in a variety of ways, depending both on the nature of the relevant rules and on the ‘facts’ of the situation... international law, international ethics, institutional theory, and the application of social theory to the study of global politics wayne sandholtz is Professor in the Department of Political Science at the University of California, Irvine, where he has been Director of the Center for Global Peace and Conflict Studies for the past two years His chief research interest currently is the evolution of international. .. on these issues, these were often rooted in the self-identities of the principal actors The movement toward the systematic prosecution of individuals for massive violations of international humanitarian law and the laws of war has been matched by a ‘new humanitarian interventionism’, the equivocatory nature of which has been starkly apparent in the international community’s haphazard responses to the. .. approaches to the problems they address Although both the Bank and the Fund are exclusively creations of international law, and unlike states cannot make any claim to preceding international law, they have used their status under international law to isolate themselves from evolving international legal norms Despite these efforts, Anghie contends, the relative isolation of these organisations from the general... and the Journal of Asian Studies dino kritsiotis is Reader in Public International Law at the University of Nottingham, where he has taught since October 1994 He has served as the Rapporteur of the Theory Committee of the International Law Association (British Branch) (1998–2001) and has held visiting professorships at the University of Cape Town, the Fletcher School of Law ix List of contributors... dimension of the cosmopolitanisation of international law, another is the creation of international judicial institutions for the prosecution of crimes against humanity, genocide, and acts of aggression, the most important of which is the new International Criminal Court (other examples being the ad hoc tribunals for the former Yugoslavia and Rwanda) In chapter 7 David Wippman addresses the relationship... politics of international law the Anglo-Saxon concept of individual law into the international field and to make it applicable to governments as it is applicable here at home to individuals’.8 At best, international law must be considered a form of ‘primitive law , akin to that of ‘preliterate societies, such as the Australian aborigines and the Yurok of northern California’.9 What marks it off from the law . on the politics of international law is illustrated through detailed case-studies of the use of force, climate change, landmines, migrant rights, the International. International Law at the Univer- sity of Nottingham, where he has taught since October 1994. He has served as the Rapporteur of the Theory Committee of the International Law