International Law as Social Control (or Not)

-- By JessicaWirth - 21 June 2012

A Misplaced Belief

I came to law school because of an abiding interest, since my first public policy class my freshman year of college, in engineering solutions to global collective action problems. The most notable of these is the failure to mitigate climate change, but other environmental trends – the shrinking supply of potable water, growing desertification and its effects on migration and urbanization, the loss of biodiversity – also loom. Taking climate change as an example, the underlying premise is that no nation acting alone will decrease emissions; it cannot justify bearing the entire cost when changing its output has minimal impact absent similar cuts by other emitters.

I looked for solutions in policy and politics, but became discouraged at what I perceived to be political cowardice, gridlock, and sheer ignorance. Law school was a convenient place to project my aspirations; somewhere in the law, I figured, was a way to accomplish meaningful international environmental objectives. I thought I could work within the framework of international law to bypass the impossible, frustrating mechanics of Washington, and generate change from the outside in. I did not consider, and none of Columbia’s glossy brochures mentioned, that law is actually the weakest way to bind and obligate, especially internationally.

The Weakness of International Law

Black theorizes that it is possible to explain the quantity and style of law, defined as the “normative life of a state and its citizens,” delivered in every individual setting and across settings. (Black, 2, 6). The quantity of law is measured by the “number and scope of prohibitions, obligations, and other standards...and by the rate of legislation, litigation, and adjudication.” (Black, 3). The style of law, whether penal, compensatory, therapeutic or conciliatory, is explicable based on the social environment in which the law operates. (Black, 4).

In applying Black’s framework to explain the quantity and style of international law as it operates against countries, I realized that it is hard to conclude that international law, which derives from custom and convention, is actually law at all.

Custom in international law refers to customs derived across countries, not derived within countries. Custom within a country is akin to a traditional practice, and it has clear legal output. For instance, the traditional practice of denying women in the Middle East and parts of Africa property rights creates a legal output: foreclosure of the legal right own or inherit land and the denial of access to remedies at law. Customary international law does not have the same effect. For example, customary international law (since codified in the International Convention on Economic, Social and Cultural Rights), holds that women have equal rights to own property and that laws cannot be administered in a discriminatory fashion against them. This international custom may not have a legal output. Iran is party to the ICESCR, yet women may not own property there.

Conventional international law is slightly more like law as Black defines it. Countries that ratify or accede to conventions are “obligated” to take affirmative steps to achieve the measure defined in the agreement, typically through their domestic legislative process; countries who sign are “obligated” to respect the provisions of the agreement. “Obligated,” is a strong descriptor, though, given that there are not necessarily legal outputs for the failure to comply. Domestic litigation is possible only if the country incorporates the treaty into its national body of law or the judiciary finds international law authoritative. International litigation may result if there is an optional protocol designating a forum in which to bring suit. Such fora, however, typically lack enforcement mechanisms (see the lack of action resulting from SERAC v. Nigera, in which the African Commission held that Nigeria violated its obligations under the African Charter). Absent litigation, the only output is reprimand by the U.N. body responsible for monitoring the treaty.

If international law is not law, or if it is law that operates at such conciliatory level as to have little practical influence, then I must admit that the other forms of social control which so frustrated me that I tried to circumvent them through law actually explain what happens in the realm in which I hope to have an impact. I am training as a lawyer because I made the naïve mistake of many who have come before me. I could quit, or I could figure out what legal training gives me that will help me be useful in an arena where law matters very little.

Thinking Beyond Law

In my summer job, I recently attended negotiations between two factions within a group opposed to a dictator in the Middle East. They had the same objective – to overthrow this man – but the majority had long denied rights and citizenship to the minority, and the minority had in turn violently agitated for independence. But the political landscape had changed, and they suddenly needed each other.

Their history, their different languages and cultures, their perceptions of power relative to the other, the centuries of mistrust and resentment that had accrued – all were more powerful in that room than law. The lawyers present knew that, and operated within it. As the only people there not controlled or influenced by the record of discord, the lawyers for each side spotted when the parties were close on an issue, or when one side was tiring and might cave, or when one side was verging on walking out and the tone needed to be recalibrated, and in that fatiguing manner, they waded through the morass to come up with and technically draft seven points of agreement over two days.

Seven points of agreement over two days. None of it would have happened if the parties were unwilling to negotiate, but it was close to not happening anyway because of all of the extra baggage. There will always be baggage, though, and I can use legal training, if not the law itself, to sort through it.

(Words: 999)

So you see now why I begin by defining lawyering as "making something happening in society using words." You can learn lawyering, and apply what you know in situations that do not call for or admit of "law." In truth, international law's lawlessness is not deeper than the lawlessness of most microsituations on the street, in business, or in the management of organizations and families. It's just larger.

Law school, from a realist perspective, should be about lawyering, not law. Law is the stuff one learns in the process of lawyering, and law school should teach you how to learn it.

What you are calling "legal training," which I would call "learning how to be a lawyer," is therefore what you want regardless of whose baggage—which we might also call rights, interests, or power—is being sorted through, recognized, forwarded, rifled, discarded, or transformed.