Symposium on Rewriting Histories of the Use of Force: Fictive Imaginaries and Factual Legacies – International Law and the Use of Force

[Siddharth Mallavarapu is Professor and Head of the Department of International Relations and Governance Studies at the Shiv Nadar Institution of Eminence in India.]

Close to a year after the commencement of the Russia-Ukraine war, there is barely anything that can be more topical and worthwhile than a closer look at the histories of international law relating to the use of force. Agatha Verdebout offers us a fine account of the historic relationship between international law and the use of force. This is a lucidly structured and rigorously argued account which lays out with clarity the rationale for the alleged international legal ‘narrative of indifference’ vis-à-vis the use of force in both the nineteenth and twentieth centuries. The narrative suggests that international law was largely ‘indifferent’ to the use of force. On the contrary, Verdebout demonstrates how assiduously constructed and widely circulated the fiction of ‘indifference’ has been in the realm of the use of force even as it continues to display vestiges of its persistence in the contemporary world.

The intent of my brief intervention here is to focus on three facets that the book speaks to and merit in my view a more detailed exploration. The first relates to the disciplinary identity of international law. A second dimension (not unrelated to the first) relates to the histories of colonialism and what they tell us about interventionism in general as relates to the use of force. A final facet, I wish to focus on here is the more general relationship between international politics and international law.

The Makeup of International Law

If we are to decipher the aetiology of the ‘narrative of indifference’ in international law when it comes to the use of force, Verdebout suggests that there is no escape from deeper questions relating to disciplinary identity and legitimacy. International law like all disciplines has a self-defining credo which is subject to the dynamics of world time and evolving circumstances. The credo relates to the overarching ambition of crafting an international legal order while securing ‘the peaceful co-existence of states’.

While this endeavour is characterized by apparent good faith, Verdebout demonstrates that this disciplinary conception of identity received some serious body blows in history, most notably the First World War in the twentieth century. It naturally prompted a series of re-imaginings of international law. It is worth asking here, what the international political order of the day comes to represent. Is international law incessantly and inescapably in the service of imperial orders? Can it ever be genuinely inclusive in its cosmopolitanism, not merely in ambition but in practice?

Drawing on at least two distinct critical resources – mnemohistory (inspired by Jan Assmann) as well as social constructivism (from International Relations), Verdebout acknowledges the fluid and evolving notion of order and notes the propensity among international lawyers to align international law with notions of progress. International law in this idiom also contends with the ‘spectre’ of John Austin when comparisons with municipal law are rife. International law has often been chastised in this rendition for lacking authenticity or credibility as law as it is ineffective in the absence of a supranational enforcing authority.

What is fascinating is that the invocation of formalism in international law according to Verdebout remains a defensive response to the pressures of the Austinian critique. A part of international law’s identity is to contend with the ‘effectivity complex’. Like most complexes it calls for its share of attempted effacement and reinventions of persona. The ‘narrative of indifference’ is tethered in Verdebout’s account to the overall standing of international law and its eternal quest for a ‘proper legal order’.

To return to our original preoccupations of disciplinary identity, what revisionist historians (illustratively, Antony Anghie on Francisco de Vitoria, B.S.Chimni on Hugo Grotius and several other scholars) of international law have by now amply demonstrated is the invocation of ‘civilization’ as a category to confer or deny full sovereign legal rights within the remit of international law. This was a European prerogative, if one harks back to the history of international law.

However, what is also significant is that there is a substantial body of critical scholarship that suggest imperial traces persist even today in the making and enforcement of contemporary international law. The use of force is one legal regime, but think of a whole range of other issue areas – the migration regime, the international trade regime, the climate change regime, the law of the sea regime, the nuclear non-proliferation regime and the refugee regime to name but a few.

The use of force is particularly not shorn of extra-legal influences. Given the heightened sensitivity and specific anxieties around national security constructions, it remains an ideal candidate for exceptions and double standards in compliance with international legal standards, yet another salutary reminder of the influence of international politics on international law.

For countries located in the semi-periphery and periphery, this has been a particularly sore point. If international law’s identity is tied to ‘visions’ of what it seeks to accomplish, it needs to demonstrate in practice that it is not merely in the service of any one imperial order or the other but actually has multiple lives and multiple subjects and is capable of protecting the interests of the disenfranchised and the dispossessed especially in the semi-periphery and periphery. A part of the more muted response within the Global South to the blatant transgression by Russia of Ukrainian territorial integrity may have to do with scepticism surrounding the West’s own duplicity, poor historical record and lack of consistency when it comes to upholding international legal standards relating to the use of force. 

To be more specific, in the domain of the use of force, what may be some concrete gains of successfully scuttling the ‘narrative of indifference’? Can international law bear witness to not merely the world of invocatory gestures and cosmetic appearances, but also to the conditions that might encourage consistent interpretation and application of legal principles relating to the use of force in a manner that transcends parochial national and classic geopolitical interests of the major powers? Or is the system already skewed with a limited definition of the permanent members of the United Nations Security Council and their special veto powers when it comes to authorizing collective interventions? Readers from the global South would be keen to hear more about these issues from Verdebout in the light of claims of a robust international legal edifice accruing from the nineteenth century to the present day on the use of force.

Colonialism and the Legality of the Use of Force

A vexed issue in most mainstream accounts of the use of force is the glossing over of histories of colonialism. While mention is made here of ‘independence, equality and self-preservation’ as the pillars of international society, the nineteenth and twentieth century witnessed just the converse as far as colonized societies were concerned. The principle of non-intervention was also held up as a lofty ideal that was viewed as sacred to ‘natural law’. Verdebout’s account reveals that it is only in the post-1870s world that we witnessed the gradual entrenchment of legal positivism.

To what extent did international law matter when it came to the treatment of colonial subjects? To begin with political and legal subjecthood was invariably denied to the colonized peoples rendering them beyond the pale of law. Anghie’s account (in Imperialism, Sovereignty and the Making of International Law) on the relationship of imperialism and international law demonstrates how the denial of full sovereign status to the colonized peoples was often used as the pretext to deny them other rights that flowed on account of being full sovereigns in the first place.   

Unfortunately, this story of disadvantage did not cease with the emergence of postcolonial states. Anyone who has followed the itineraries of humanitarian intervention or the operationalization of doctrines like the responsibility to protect cannot fail to see the ‘hypocrisies’ that greet the invocation of international legal principles in the service oftentimes of hegemonic political projects. Robert Knox reminds us that we should cease to be surprised at all in this regard (and on various other counts) in his account of ‘Imperialism, Hypocrisy and the Politics of International Law’.

While nobody denies the existence of an international legal regime on the use of force, what we witness are various forms of evisceration of legal obligation in terms of justificatory rationales invoked and their application to diverse contexts. A slew of complex motivations that go beyond good faith invocation of international laws are evident in the practice around different species of major power intervention.

Verdebout’s account does well to acknowledge that in the Crimean War (1853-56) international law was a casualty and what prevailed was ‘European politics, order and equilibrium’. This extends to the Berlin Conference later in the same nineteenth century. Two scholars she cites in this context are of particular relevance. Jochen von Bernstroff’s claim that much wider latitude was given to interpretations around intervention in the colonial context and Inge Van Hulle’s argument that the ‘use of force in the imperial context’ remains understudied are excellent points of departure for future studies in this domain.

To reiterate, from the perspective of the colonized, it might be a little ingenious to suggest that an international law committed to more lofty values was alive and kicking in the high noon of imperialism. Even if it did exist, it barely applied to the colonies as they did not qualify as full sovereigns and second, if at all it was invoked, it often dovetailed with old style geopolitical interests rendering it hopelessly partisan in the service of one imperial order or the other.

International Politics and International Law: Strange Bedfellows

Verdebout advances a key claim regarding the tension between the two domains in classic conceptions of the equation between international law and politics. While politics is often viewed as the ‘other’ of international law, it requires asking if it is possible to conceive of the relationship differently? Is the relationship inevitably fraught and adversarial or is there scope of thinking about politics as more enabling in terms of moving the needle of international law in the service of larger teleological projects of justice as they evolve at particular historical junctures.

Here, Verdebout’s instincts are right in terms of her critique of international law for its ‘disdain’ of politics as it forecloses a possible conversation. While both international politics in its dominant conception may convey an image of ‘anarchy’, the truth remains that it is equally obsessed with the conditions for securing its opposite, political order. Even as a thought experiment, it is worth examining how international law assesses prevailing notions of political order and further what it means in terms of a blueprint for an international legal framework. While the two may not always map onto each other neatly, what is evident is that there are numerable intersections between international law and international politics.

Going beyond legality, we may also be interested in probing questions of legitimacy especially when it comes to doctrines relating to the use of force. While doctrines of humanitarian intervention and responsibility to protect have both revealed tainted histories in their interpretation of legality and legitimacy issues, it only demonstrates further the overlaps between international law and politics. This also raises further aspects relating to the normativity of law and how international law’s value commitments at a juncture of history might actually be in sync with efforts to revise the status quo and move towards a more desirable state of affairs in relevant spheres of social, political and economic international life.

To sum up, Verdebout’s book on the whole offers us an excellent opening to delve more deeply into these questions. While she attempts to re-write the histories of the use of force to dispel a ‘narrative of indifference’ as relates to the use of force, she also compels us to think about the stories international law likes to tell us about itself, the need to take international legal histories more seriously, and the challenges involved in re-fashioning a more productive conversation between international law and international politics for the twenty-first century. All worthy projects to pursue with care and attention for anyone seriously inclined to do so.