Ian Hurd on Law and Diplomacy

Ian Hurd has a very interesting essay on law and international relations, “Law and the Practice of Diplomacy,” which I’d strongly recommend to anyone with an IR/IL bent.  It’s maybe the only piece of IR theory that I’ve read that really seems to get the dynamic element of international law.  It also centers international law to what I suspect is an unprecedented extent, as both a “resource” for and a constraint on state actors.  “[S]tates are limited in their agency by the legal resources that they find around them. Their strategic behaviour around diplomacy and international law is therefore tightly structured by the legal environment. This is not a domain of free choice.”

The piece also highlights the change element inherent in the international legal process, and the fact that although state try to put law to work to advance their interests

[t]he social nature of diplomacy ensures that these changes are never fully under the control of any single actor, and that the strategic direction of diplomatic activism is always uncertain. The meaning of precedents depends on how states and others choose to use them. As a social practice, diplomacy has these three formal qualities: sociality, statecentrism, and a productive effect.

With this emphasis on the IL’s dynamic element, Hurd gives the lie to the burgeoning field of IR/IL compliance studies.  Insofar as a rule of international law is contested, “answering the question about compliance versus noncompliance amounts to taking sides in the substantive political content of the dispute.”  Better, in true constructivist form, to “look at how the actors use the rules, and how the rules shape the actors and their possibilities.”

This is great stuff.  Two quick thoughts.  First, I wonder if the piece might actually overemphasize the place of law.  (Who’d have thunk, say 10 years ago, that an IL person would be taking an IR person to task for that!)  Hurd seems to be saying that diplomacy inherently “consists of reconciling state behaviour to international law.”  I’d agree that there are an increasing range of contexts in which this is true, but aren’t there still many questions of diplomacy in which the law figures only marginally or not at all?  And though I’m also on board with centering the change factor, it seems clearly the case that there are some legal questions (small and large) on which states do reach consensus.  The contestedness of legal boundaries fronts for a lot of territory on which there is agreement.

My other gripe is one I’m more used to throwing in IR’s direction: the bracketing of non-state actors.  Non-state actors are obvious players on the international stage, so here’s how Hurd (in effect) dismisses them:

Only states are obligated under public international law. . . Nonstate actors contribute to diplomacy, despite not being subjects of the rules of international law: they can invoke international rules, provide interpretations of behaviour and of rules, and construct arguments using the resources of public international law. This can be consequential in constructing the field in which public diplomacy takes place and in contributing resources to it. But this is ultimately directed toward influencing states, either by forcing them to act in certain ways or by giving them resources to pursue the policies preferred by the nonstate actors.

So how to address the Kimberley Process and the Equator Principles, in which NGOs and corporations are the key actors?  When Greenpeace goes after the Forest Stewardship Council about logging in the Congo or Human Rights Watch presses the International Olympic Committee on Saudi discrimination against women?  Hurd deploys the UN Global Compact as consistent with his premise, but I don’t see how.  (Because the UN is composed of states? It’s not obvious how IOs fit into the picture.)  The use of the term “diplomacy” is suspect from this perspective, insofar as it carries heavy state-centric baggage.  Ultimately, I’m not sure why the rest of the theory couldn’t be put to work in a model including non-state actors as well, who after all also use international law as a resource at the same time that they are constrained by it.