By Bob Needham
Michigan Law
Many of the legal arguments that take place in the international arena actually have nothing to do with courts or judges. So why make them?
Professor Steven Ratner and his co-editor, Ian Johnstone, set out to answer that and other related questions in their latest book, Talking International Law: Legal Argumentation Outside the Courtroom (Oxford University Press, 2021). The book delves into the various ways that legal arguments are used in international nonjudicial settings in efforts to sway opinions, even without any underlying legal bindingness.
Ratner—the Bruno Simma Collegiate Professor of Law, the director of the University of Michigan Donia Human Rights Center, and a commissioner on the UN International Commission of Human Rights Experts on Ethiopia—recently answered five questions about the concepts addressed in the book:
1. You explain that international law is unusual in that it usually doesn't have a centralized court system behind it. What does that mean in practical terms?
All law involves argumentation, and some of that argumentation is to courts, but a lot of that argumentation is to political bodies.
Even in the United States, we often hear political actors who will say the law is this, or the law should be this, or the law prohibits this. And they're not talking to courts. They might be talking to the public, or they might be making a case in a congressional hearing.
In international law, we are particularly exposed to this reality of law, which is that legal arguments can be made to lots of different actors. In international law, we have no courts of general mandatory jurisdiction. In international law, we must look at how law has an impact or doesn't have an impact in these nonjudicial settings.
2. Typically, who are the people making these arguments?
As our book details, the actors that make international legal arguments are governmental officials, officials of international organizations, people who work for nongovernmental organizations, corporations, and lawyers. All of them will make arguments in different venues about what the law requires or doesn't require. Sometimes they'll make those arguments in front of a special body of the UN or a UN technical agency; sometimes they'll make those arguments in a public speech; and sometimes they'll make them in a written submission. These actors are not just governments and government lawyers, but all the participants in the international legal process.
3. If they are not out to win a case or a judgment, what are their goals?
Sometimes it's similar to making the case to a judge, in that they're trying to persuade somebody who has the power to make a decision favorable or unfavorable to them. They're trying to persuade someone that they're right on the law. Or they might just be trying to get a certain result—a policy shift, for example—from that other party and not really care whether they’ve convinced them on the legal merits.
Sometimes they're just trying to show a domestic or international audience that they care about international law. That can be done in a sincere way, or it can be done in a very cynical way. When Vladimir Putin justifies the invasion of Ukraine by citing all sorts of international law, he's trying to show a domestic audience that he cares about the rule of law. He's not really trying to show an international audience because not many actors are going to be persuaded by that.
There are other times when an actor wants to show that it has authority or legitimacy. So if you have two competing claimants to being the government of a country, if one of them makes an argument in international law, it makes it sound like they're the government of the country. Sometimes they're just trying to reframe the debate by switching from an argument about morality or economics or policy to an argument about legality—which can also be very cynical because they may be trying to deflect attention from the more important issues to some less important legal issues. Our book identifies about a dozen different agendas for making legal arguments—only one of which is to persuade someone that their legal argument is right.
4. How effective then do these arguments tend to be? What makes them more or less effective?
This is something on which our book can really only offer some initial thoughts because if an actor makes a legal argument that the law says you should do X and the decision-maker decides to do X, unless you really interview the decision-maker, it's hard to know why they decided to make decision X. It's often hard to know whether or not a legal argument is effective.
What we offer are some hypotheses on what seems to matter: How authoritative is the person who's speaking? How much are they regarded as a neutral, impartial expert? What's the body where they're making an argument—is it a body that tends to take legal arguments seriously or not seriously? Is it a public setting or a private setting?
5. Do the lessons of the book have implications beyond international law?
Understanding the role that law plays outside the courtroom is not confined to international law. When we encourage our students to be participants in public policy debates, or even if they are advocates for their clients with rather narrow interests, our students need to understand that most of the time they're going to be arguing and trying to persuade people outside of judicial settings. They have to understand that there are a lot of other factors going on in those settings besides the law. The law is serving multiple functions, and none of this is confined to international law.
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