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The power and perils of international law: A review essay on lawfare , constructivism and international lawpower

• Review Article
• Published: 23 October 2017
• Volume 5 , pages 105–119, ( 2017 )

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• Ryder McKeown 1  

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The historical divide between power and international law is breaking down in a modern international system that is at once anarchical, competitive and highly legalized. While IR scholars have often considered international law to be relatively unimportant, separate from politics, and/or a means of fostering cooperation and mitigating conflict, recent scholarship at the intersection of power and law is examining how international law comprises a form of power in its own right. In this article, I review three books that exemplify this trend, arguing that they provide the foundations for a theory of legal power, or ‘lawpower’. Notably, the works under review suggest that international law is a potent social resource that is used strategically by a range of actors for their own ends and in their own ways. This conception of international law has significant implications for IR theory, military strategy and legal ethics.

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McKeown, R. The power and perils of international law: A review essay on lawfare , constructivism and international lawpower. Int Polit Rev 5 , 105–119 (2017). https://doi.org/10.1057/s41312-017-0036-2

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Published : 23 October 2017

Issue Date : December 2017

DOI : https://doi.org/10.1057/s41312-017-0036-2

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1 Introduction: The Limits of Consent in International Law

• Published: August 2023
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The introductory chapter outlines the issues raised in the subsequent five chapters. It argues that current theories regarding the sources of international law lack a foundation for explaining how states can be required to assume legal obligations that transcend state consent. In making this case, the chapter critiques attempts to expand the concept of customary international law to include certain types of legal norms that form over a short period of time without necessarily reflecting widespread, consistent state practice. Rather, it provides an overview of current theories on the sources of international law and examines how international law is directly connected to the four variables that characterize the structure of the international system: the nature of the constitutive units, the organizing principles of the system, the density of interaction among the units, and the scope and depth of institutionalization within the system.

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In association with the International Commission of Jurists

Andrew Guzman on the Problem of Consent in International Law

21 jul andrew guzman on the problem of consent in international law.

With Julian’s many interesting posts on UNCLOS, I thought I would flag for our readers Andrew Guzman’s interesting essay published on SSRN entitled the “ Consent Problem in International Law .” Here’s the abstract:

The legal obligations of a state are overwhelmingly based on its consent to be bound. This commitment to consent preserves the power of states, but also creates a serious problem for the international system. Because any state can object to any proposed rule of international law, only changes that benefit every single affected state can be adopted–creating a cumbersome status quo bias. This Article argues that our existing commitment to consent is excessive and that better outcomes would result from greater use of non-consensual forms of international law. International law has developed a variety of ways to live with the consent problem, including the use of transfer payments, customary international law, and the United Nations Security Council. None of these, however, provide a sufficient counterweight to the consent problem. There are also strategies employed to work around the consent problem, mostly through the use of international organizations and tribunals capable of generating soft law. These soft law strategies are helpful, but insufficiently so. We could achieve better results within the system if these forms of soft law were used more extensively and accepted more broadly.

As Guzman argues, international law does a better job with Pareto Improvements–somebody is better off and no one is worse off–than Kalder-Hicks Improvements in which the gains to the winners exceed the losses to the losers. Put simply, “requiring consent frustrates many potential arrangements that would improve the lot of states as a whole.” He provides numerous examples of this–climate change, nuclear proliferation, terrorism, fisheries, economic crises–and proposes a few incremental, non-utopian solutions. Interestingly, Guzman argues that customary international law is not truly consensual, because the consistent objector rule is so hard to satisfy. He also describes Security Council action as non-consensual, although one could just as easily describe the Security Council as acting with state consent given at the time of accession.

But CIL and the Security Council will only modestly address the problem of consent. The real solution to the problem of consent, Guzman argues, are international organizations and international tribunals. “These represent the two most promising tools with which to combat the consent problem. Tribunals … can be effective in diffusing disputes and making the rules more effective. They can also adjust the meaning of international commitments at the edges without requiring a full-scale consent-based renegotiation of the underlying agreement.” As for IOs, they are “the most promising way to address the consent problem.” IOs are particularly useful at reducing transaction costs that make it easier to achieve consensus, and in influencing soft law rules that affect state behavior. While “a few states will find it more difficult to resist value-increasing policies that happen to impose small costs on their own population” a shift toward stronger IOs “will expand the set of attainable solutions for the world’s problems.”

Well worth a read.

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Berkeley Program in Law and Economics

The Consent Problem in International Law

• Guzman, Andrew

International law is built on the foundation of state consent. A state’s legal obligations are overwhelmingly – some would say exclusively – based on its consent to be bound. This focus on consent offers maximal protection to individual states. If a country feels that a proposed change to international law does not serve its interests, it can avoid that change by withholding its agreement. This commitment to consent preserves the power of states, but it also creates a serious problem for the international system. Because any state can object to any proposed rule of international law, only changes that benefit every single affected state can be adopted. This creates a cumbersome status quo bias. Though legal reforms that would lead to a loss of well-being are avoided, so are reforms that would increase well-being for most but not all states. This Article challenges the conventional view of consent. It argues that our existing commitment to consent is excessive and that better outcomes would result from greater use of non-consensual forms of international law. Though consent has an important role to play, we cannot address the world’s greatest problems unless we are prepared to overcome the problem it creates – the consent problem. International law has developed a variety of ways to live with the consent problem. These include the granting of concessions by supporters of change to opponents thereof, customary international law, and to the United Nations Security Council. None of these, however, provide a sufficient counterweight to the consent problem. There are also strategies employed to work around the consent problem, mostly through the use of soft law. In particular, the international system has developed a plethora of international organizations and international tribunals that generate soft law. As currently used and perceived by the international legal system, states, and commentators, these soft law strategies are helpful, but insufficiently so. We could achieve better results within the system by expanding our acceptance of the soft law promulgated by these bodies and raising the expectation of compliance placed on states. This move toward greater support for non-consensual soft law would help to overcome the consent problem, and represent a step in the right direction for the international system.

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State Consent Under International Law

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• Israel-Hamas War

Israel Has Been Accused of War Crimes in Gaza. Could Its Allies Be Next?

W hen Israel launched its retaliatory war to root out Hamas from Gaza in the aftermath of the group’s Oct. 7 massacre, it had the overwhelming support of a horrified world. Six months on, Gaza lies in ruin. Its 2.3 million population, most of whom have been internally displaced, faces widespread famine. More than 33,000 Palestinians, the majority civilians, have been killed. And Israel, once backed by the full-throttle support of its closest allies, appears more isolated than ever before.

Nothing exemplifies this isolation more than the growing calls for the U.S., the U.K., and Germany to suspend arms sales to Israel. These calls, which have only grown louder in the days following the killing of seven World Central Kitchen aid workers in an Israeli airstrike, are now coming from some of the highest levels of transatlantic politics. 

In the U.S., 56 congressional lawmakers (among them former House speaker Nancy Pelosi) penned a letter urging President Joe Biden and Secretary of State Antony Blinken to withhold further weapons transfers to Israel until a full investigation into the deadly airstrike concludes, and to condition future assistance to ensure its compliance with U.S. and international law. One, Sen. Elizabeth Warren, even went so far as to say that Israel’s actions in Gaza could legally be considered a genocide .

Read More: ‘It’s Not Just a One-Off Incident:’ What the World Central Kitchen Deaths Reveal

In the U.K., Prime Minister Rishi Sunak is facing mounting pressure from parliamentarians and legal experts alike to suspend arms sales following revelations that the government received legal advice that Israel has broken international law in Gaza. Meanwhile, in Germany—which this week faces allegations brought forward by Nicaragua at the International Court of Justice (ICJ) that it is “ facilitating the commission of genocide ” in Gaza by supplying arms to Israel—hundreds of civil servants have reportedly written to Chancellor Olaf Scholz and other senior ministers calling on Berlin to “cease arm deliveries to the Israeli government with immediate effect.”

Central to all of these calls is a concern over whether Israel’s conduct in Gaza could constitute a breach of international humanitarian law—and, if so, what it means for the countries that have backed the Israeli war effort with arms and assistance. If Western weapons are found to have been used in the perpetration of war crimes (or, worse, genocide ) in Gaza, what culpability could their suppliers face? If Israel is deemed to have fallen on the wrong side of international law, could it bring its allies down with it?

Legal experts tell TIME that the answer largely depends on which laws and treaties one consults. Among the most emphasized is the international Arms Trade Treaty, in which Article 7 requires party states to undertake a risk assessment of all arms transfers—and, where there’s an overriding risk that those arms could be used to commit or facilitate violations of international humanitarian law, to prohibit their export. The U.S. hasn’t been a party to the U.N. treaty since former President Donald Trump withdrew from it in 2019. (Washington does, however, have its own domestic legislation that prohibits it from providing military assistance to foreign military units suspected of committing human rights violations.) But it nonetheless applies to 113 other state signatories, including Germany, which is the second-largest provider of arms to Israel after the U.S. Some countries, including Canada and Italy , have already opted to halt their arms exports to Israel, citing concerns over their compliance with domestic and international law. In the Netherlands, the government was ordered to suspend its delivery of F-35 fighter aircraft after a Dutch court determined that there was a “ clear risk ” that they could be used to violate international humanitarian law. 

Such a precedent could have serious implications for the U.K., a signatory, which despite providing far fewer arms to Israel has suspended its exports in the past: First in 1982 , and then again in 2009 . While the British government contends that its arms sales to Israel are compliant with international law, human rights organizations have argued that this position is inconsistent with mounting evidence of war crimes. “They’re very well aware that there’s equipment that they’ve currently already licensed, and component parts of equipment that they’ve licensed, that are likely to be used by the IDF in Gaza now,” Yasmine Ahmed, the U.K. Director of Human Rights Watch, tells TIME. “That means that they’re clearly breaching those obligations under international law.”

The obligation that perhaps looms largest over Gaza is the responsibility that states have to prevent and punish genocide under Article 1 of the Genocide Convention. In a landmark decision in January, the ICJ determined in an interim judgment that there is a plausible risk of Israel committing genocide in Gaza. While this doesn’t constitute a definitive ruling (genocide cases can take years to resolve), it does put Israel’s allies on notice. “It makes countries aware that there’s that risk,” Ahmed says. “Continuing to provide arms to Israel when an apex U.N. court has said that there’s a plausible risk of genocide means that there’s a very serious risk that countries are also violating the Genocide convention, to the extent that they’re failing to prevent genocide by continuing to arm Israel.”

That prospect, and the potential criminal liability that comes with it, has prompted concern among British civil servants overseeing U.K. arms exports to Israel, who last week requested to “ suspend all such work ” over fears that it could put them in legal jeopardy. Their request came a week after a third U.S. State Department official publicly resigned over the Biden administration’s handling of the war in Gaza—a decision that Annelle Sheline, who served in the office devoted to promoting human rights in the Middle East, attributed to the administration’s “flagrant disregard for American laws” and the inability of her or other federal employees to influence policy. Indeed, State Department staff have reportedly sent at least eight internal dissent memos registering their disapproval of U.S. policy on the war, according to the Independent . By contrast, just one was sent during the first three years of the Iraq War.

Read More: How Israel and Its Allies Lost Global Credibility

Michael Becker, a professor of international human rights law at Trinity College in Dublin and a former associate legal officer at the ICJ, tells TIME that in a situation where the ICJ has already determined that Israel’s actions in Gaza constitute genocide, “it would then be possible for another state that has provided arms to Israel—if such arms were used to commit genocidal acts—also to be found to have violated international law.” He adds, however, that it is difficult to prove that a state was legally complicit in genocide as it would require proving that the state was aware of another state’s genocidal intent; it's easier to prove that a state failed to meet its international obligation to prevent genocide, the responsibility for which is triggered the moment state learns there’s a serious risk that genocide will be committed. Nicaragua’s case against Germany at The Hague, a ruling on which is expected in the coming weeks, rests on the latter argument. 

While what it means to meet one’s obligation to prevent genocide can vary from state to state depending on their relative capabilities or leverage, “Lawmakers in the U.S. and the U.K. and elsewhere need to be thinking very carefully about whether their conduct puts them at risk of violating or breaching their obligation to prevent genocide,” Becker says, adding: “I don’t think it’s a very big leap from that understanding of the obligation to prevent genocide to the conclusion that it’s problematic to continue providing arms to Israel without any meaningful safeguards.

While a judgement on whether Israel has committed genocide is likely years away, if the ICJ were to determine that Israel had committed acts of genocide in Gaza and found that its allies who supplied arms did so with full knowledge of risk, among the tangible consequences that states could face include an order from the ICJ to take remedial action, such as paying financial reparations. What’s less clear, however, is how such orders could be enforced. “The ICJ has no means of enforcing its decisions,” Becker says. “At the end of the day, the ICJ has to rely on others to carry out its decisions.”

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Write to Yasmeen Serhan at [email protected]

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The History Behind Arizona’s 160-Year-Old Abortion Ban

The state’s Supreme Court ruled that the 1864 law is enforceable today. Here is what led to its enactment.

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By Pam Belluck

Pam Belluck has covered reproductive health for more than a decade.

The 160-year-old Arizona abortion ban that was upheld on Tuesday by the state’s highest court was among a wave of anti-abortion laws propelled by some historical twists and turns that might seem surprising.

For decades after the United States became a nation, abortion was legal until fetal movement could be felt, usually well into the second trimester. Movement, known as quickening, was the threshold because, in a time before pregnancy tests or ultrasounds, it was the clearest sign that a woman was pregnant.

Before that point, “women could try to obtain an abortion without having to fear that it was illegal,” said Johanna Schoen, a professor of history at Rutgers University. After quickening, abortion providers could be charged with a misdemeanor.

“I don’t think it was particularly stigmatized,” Dr. Schoen said. “I think what was stigmatized was maybe this idea that you were having sex outside of marriage, but of course, married women also ended their pregnancies.”

Women would terminate pregnancies in several different ways, such as ingesting herbs or medicinal potions that were thought to induce a miscarriage, Dr. Schoen said. The herbs commonly used included pennyroyal and tansy. Another method involved inserting an object in the cervix to try to interrupt a pregnancy or terminate it by causing an infection, Dr. Schoen said.

Since tools to determine early pregnancy did not yet exist, many women could honestly say that they were not sure if they were pregnant and were simply taking herbs to restore their menstrual period.

Abortion providers described their services in discreet but widely understood terms.

“It was open, but sort of in code words,” said Mary Fissell, a professor of the history of medicine at Johns Hopkins University. Abortion medications or herbs were called “female lunar pills” or “French renovating pills,” she said.

Newspaper advertisements made clear these abortion services were available.

“Abortion is commercializing in the mid-19th century, up to the Civil War,” Dr. Fissell said. “You couldn’t pretend that abortion wasn’t happening.”

In the 1820s, some states began to pass laws restricting abortion and establishing some penalties for providers, according to historians.

By the 1840s, there were some high-profile trials in cases where women who had or sought abortions became very ill or died. Some cases involved a British-born midwife, Ann Trow Summers Lohman, known as Madame Restell, who provided herbal pills and other abortion services in New York , which passed a law under which providers could be charged with manslaughter for abortions after quickening and providers and patients could be charged with misdemeanors for abortions before quickening.

But strikingly, a major catalyst of abortion bans being enacted across the country was the emergence of organized and professionalized medicine, historians say.

After the American Medical Association, which would eventually become the largest doctors’ organization in the country, formed in 1847, its members — all male and white at that time — sought to curtail medical activities by midwives and other nondoctors, most of whom were women. Pregnancy termination methods were often provided by people in those vocations, and historians say that was one reason for the association’s desire to ban abortion.

A campaign that became known as the Physicians’ Crusade Against Abortion began in 1857 to urge states to pass anti-abortion laws. Its leader, Dr. Horatio Robinson Storer , wrote a paper against abortion that was officially adopted by the A.M.A. and later published as a book titled “ On Criminal Abortion in America. ”

Later, the association published “ Why Not? A Book for Every Woman ,” also written by Dr. Storer, which said that abortion was immoral and criminal and argued that married women had a moral and societal obligation to have children.

Dr. Storer promoted an argument that life began at conception.

“He creates a kind of moral high ground bandwagon, and he does that for a bunch of reasons that make it appealing,” Dr. Fissell said. In one sense, the argument coincided with the emerging medical understanding of embryology that characterized pregnancy as a continuum of development and did not consider quickening to be its defining stage.

There were also social and cultural forces and prejudices at play. Women were beginning to press for more independence, and the male-dominated medical establishment believed “women need to be home having babies,” Dr. Fissell said.

Racism and anti-immigrant attitudes in the second half of the 19th century began fueling support of eugenics. Several historians have said that these undercurrents were partially behind the anti-abortion campaign that Dr. Storer led.

“People like Storer were very worried that the wrong Americans were reproducing, and that the nice white Anglo-Saxon ones were having abortions and not having enough children,” Dr. Fissell said.

A moralistic streak was also gaining prominence, including with the passage of the Comstock Act in 1873, which outlawed the mailing of pornographic materials and anything related to contraception or abortion.

By 1880, about 40 states had banned abortion. Arizona enacted its ban in 1864 as part of a legal code it adopted soon after it became a territory.

The law, ARS 13-3603, states: “A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.”

“It was an early one,” Dr. Schoen said, “but it is part of that whole wave of legislation that gets passed between the 1860s and the 1880s.”

Pam Belluck is a health and science reporter, covering a range of subjects, including reproductive health, long Covid, brain science, neurological disorders, mental health and genetics. More about Pam Belluck