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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.
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