Law as Deliberative Discourse: The Politics of International Legal Argument—Social Theory with Historical Illustrations
Abstract: In this paper I propose a novel account of international law as a subset of international political argument, in turn understood as a practice of deliberative discourse. I draw on a Habermasian communicative framework to integrate legal and political argument, facilitating a more nuanced and more plausible understanding of how international law and politics interact. Through a detailed examination of two historical cases from the first decade of the Northern Ireland conflict, involving the United Nations and the European Convention on Human Rights respectively, I illustrate three key dimensions of this framework: the relation between legal and political argument; the relation between domestic and international argument; and the distinction between strategic and communicative uses of legal argument.
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.