Lawmaking under Pressure: An Initial Response to Commentators

[Giovanni Mantilla is University Lecturer in the Department of Politics and International Studies (POLIS) and Fellow of Christ’s College, Cambridge, and of the Lauterpacht Centre for International Law and is the author of Lawmaking under Pressure: International Humanitarian law and Internal Armed Conflict.]

I am humbled by the generous comments of nine excellent readers of my book, Lawmaking under Pressure. Having worked on it for many years, to see this wide range of scholars and practitioners use superlative words to refer to it, is just thrilling. I can only hope that the book will eventually be seen as a “landmark history” and treated as an “indispensable source” across various fields.

This is an initial response to the readers’ comments. I cannot fully do them justice in this short format, but I aim to reach wide coverage by addressing some recurring themes.

As noted in my introductory post, I wrote Lawmaking under Pressure in the hopes of making interdisciplinary contributions across the fields of International Relations, International History, and International Law. For a junior scholar like me this was a gamble, took effort to achieve, and required deliberate choices and compromises.

Most obviously, despite my best interdisciplinary intentions, the book is clearly anchored in one discipline, International Relations (IR), and as some of the readers intuit, that choice brings with it virtues as well as vices.

From my perspective, the virtues of an IR anchoring are multiple. They include the ambition to develop a theoretical framework to explain the process of international humanitarian lawmaking for internal conflicts while envisioning a wider reach. Another is the fact that IR offers a clear set of plausible explanations through which I could organize the project at the start, and later use as foils (or platforms) to build my own argument.

A third virtue is methodological: increasing standards of evidence in IR historical/qualitative research compelled me to find as large and detailed a documentary corpus as I could in order to build  a precise and well-supported argument. This impetus (quite happily) sent me into several archives around the world.

The commentators’ general assessment indicates that the book succeeds on these fronts. That is, the central concepts and dynamics I theorize appear as useful for explaining not just humanitarian lawmaking but a larger array of lawmaking exercises, past and present, international and as domestic, even if doubts might remain as to the singular operation of social pressure (Boyd van Dijk) or of “forum isolation” (Verity Robson) in the production of particular legal outcomes.

Similarly, all readers praise the book’s thorough treatment of the historical process, even when, as discussed below, they are left wanting more.

Which brings me to the potential “vices” that may come with the IR lens: assuming rather than historicizing, a partial silencing of the voices of certain important actors, and a narrowing of the analytical focus, leading to important blind spots.

On the first point, in his illuminating post Alonso Gurmendi expands on a key question which my book largely treats as given: why exactly were states so allergic to internal violence, particularly in the nineteenth century? Rightly, Gurmendi reminds us that rather than “natural” this stance resulted from concrete historical experience, some of which he recounts. I cannot but agree with this observation, and thank him for elaborating historically on something that to IR scholars appears essentially as a self-evident. Note, however, that Chapter 2 of the book does address this theme to some extent by discussing the sociopolitical context of sovereignty in nineteenth-century Europe, including its imperialist, nationalist, and militarist tendencies. Still, I appreciate that more could be said about this, including, as Gurmendi explains, regarding guerilla warfare, levée en masse, or states’ attitudes against franc-tireurs.

For their part, Alejandro Chehtman, Kathryn Greenman (and Neta Crawford to a lesser extent) identify another important partial issue: the voices of non-Great Power or “peripheral” states are relatively muted in my explanatory narrative, well despite their importance for the production of the social pressure I underscore.

This is fair. I agree with Chehtman in attributing it to received inherited practices of theorizing from mainstream IR, particularly in the US. In a nutshell: given the predominance of “realism” in the post-World War II era, IR theory debates have since the 1960s tended to foreground (to treat as centrally important) the role of major powers in the making and running of the international system. This focus shaped the field subsequently, including by compelling theoretical alternatives to legitimate themselves (at least initially) by demonstrating the incompleteness or inadequacy of realism.

Luckily, writing in 2021 one can appreciate how much the field has changed — interparadigmatic debate is no longer the steering force in IR that it was before — yet vestiges of the above remain, including in how we “spin” our research for publication in high-ranking journals. Research does tend to appear more intriguing when it contradicts baseline expectations of major power protagonism or predominance. Being trained and socialized in US IR academia, I inherited this “framing” habit, and have benefitted from it.

Note, though, that the problem is not necessarily with the intrinsic merits of this framing. Instead, the issue is that even work (like mine) which theorizes the importance of peripheral actors in world politics in practice may end up giving Great Powers the analytical centerstage.

In the book, the states doing the social pressuring came from Latin America, Africa, Asia, the socialist bloc, as well as parts of Europe. Yet when analyzing some central moments before and during diplomatic negotiations, I zoom most deeply into the attitudes and strategies of powerful states, particular Britain, France, and the United States. Although other states and actors remain present and centrally important, their voices become muted in the narrative.

All this to say, I agree! And I admit as much in the book’s closing line. Viewed positively, this partial weakness presents an opportunity for future scholarship to continue granting attention to the critical importance of the “Global South” or the “Third World” in the making and operation of international law, norms, and institutions. Fortunately, this now appears to be a trend across fields, with no sign of stopping.

It should be said that this type of transnational research takes huge amounts of time, effort, and luck. Constraints of funding and time certainly influenced my choices. And as Chehtman suggests, so did archival availability. Having looked through the government archives of Mexico, Colombia, and Ireland, I found only very few sources relevant to IHL lawmaking, which may either say something about these countries’ substantive interests or about the politics of archiving.

Nevertheless, the little material I found proved the effort was worthwhile: evidence from Mexico for example revealed that country’s delegates in 1949 were explicitly instructed to pressure the European empires to accept the inclusion of internal conflicts in the Geneva Conventions, refusing to let them get away with their colonial attitudes.

Broader research may not just give us a “global history” of IHL. It may also help untangle some of the remaining puzzles Boyd van Dijk highlights in post regarding the origins and negotiation of Common Article 3, or uncover concrete evidence regarding the ulterior political motives adduced by Greenman. My book certainly does not address every interesting angle or potential negotiating motive, though I believe I have given robust answers to the puzzles I do raise.

At least for the case of Common Article 3, archival evidence across five states overwhelmingly pointed to its being perceived as a check on sovereignty, and only for the case of the Soviet Union did I seriously suspect an ulterior motive to lie behind its supportive stance. I now hope to learn more from other scholars, including Van Dijk and Greenman themselves, who may be able to harness an even wider range of sources, potentially contradicting my view.

This brings me to the last potential “vice”: a narrowing of my analytical lens, with its associated blind spots. Several readers note this in different ways: Charli Carpenter, Greenman, Chehtman, and Verity Robson all rightly comment that the book’s tight focus on historical treatymaking misses the posterior life of the law after codification, particularly the ways in which the rules’ meaning, application, and development eventually expanded and unfolded since the 1970s.

Separately, van Dijk, and Katharine Fortin remark upon two further blind spots: a partial inattention to important precedents (the ICRC’s involvement in colonial settings before 1949), and the early importance of human rights ideas in the development of IHL since the 1940s.

Here again I agree: although I labored to present a well-contextualized and historically-rich narrative, considerations of research design, as well as more practical ones of readability, colored my choices and produced omissions.

In terms of research design, I chose to keep my eye as closely as possible on question of the emergence of the fascinating and complex treaty instruments that make up this branch of IHL. Explanation of these treaty rules was uncharted territory in IR scholarship, and given enduring debates about them among historians and lawyers, I felt they merited my central attention. My research later confirmed this to have been wise: the sheer amount of previously-unexplored archival material on treatymaking ballooned its way into a 420-page-long PhD dissertation!

This narrowing choice also entailed organizing my research specifically around theories of normative emergence and lawmaking. Much though I wanted to, incorporating the “after-codification” period would have meant bringing in additional conceptual tools, inevitably complicating and elongating my framework. In the end, I followed the sage advice that no book could do everything and that leaving other aspects of the process for future examination made good sense. 

My other reason was more straightforward: as a first time author hoping to reach as many readers as possible, I worked to keep the book relatively tight and trim, featuring just enough material to appeal to (or avoid turning off!) the interdisciplinary audience I sought to reach.

In short, I could not explain or include everything that seemed interesting and relevant. A lot of fascinating evidence ended up on the cutting floor.

With that in mind, I warmly thank Carpenter, Greenman, Chehtman, as well as the ICRC’s Iris Mueller, for expanding upon these various aspects of the “post-codification” history in their thoughtful responses. As they all make clear, well beyond the politicking of treaty negotiations, the IHL applicable to internal conflict has over time transformed in important ways.

A process of “normative pull-forward”, as Carpenter calls it, has certainly taken place, both to positive effects (expanding the protective aspects of the law, highlighted by Carpenter and Mueller) and negative ones (governments instrumentalizing IHL partially to neutralize human rights law, as Chehtman notes for the Colombian case). A discussion of these crucial moves of interpretation, litigation, and advocacy is no doubt essential for achieving a fuller understanding of the law’s possibilities and limits.

On the connection between human rights and IHL, again I issue a partial mea culpa. While Chapter 5 of the book does feature their crucial interconnection around 1968, I generally overlook their ideational imbrication and politicized relationship before then, and after. These sibling regimes’ complicated relationship and entangled histories deserves the scrutiny that scholars like van Dijk and Fortin are granting it. Again, I hope to continue learning from their excellent work.

I close by agreeing with Robson – compromise through lawmaking is certainly an art, though in my view it is a deeply political art, rooted in concrete global and localized histories and struggles and borne out of complex motivations and shrewd diplomatic moves. I hope to have made those points clearly visible for the treaty IHL “humanizing” internal conflict in Lawmaking under Pressure. To what extent and how such political compromising actually limited or enhanced the law’s eventual influence remains fertile research terrain; Fortin, Carpenter, Chehtman, and Greeman all remind us of it. International lawmaking surely is political, yet as the last few decades demonstrate, international law and politics always allow for some unexpected surprises.