Arguing with law: strategic legal argumentation, US diplomacy and debates over the International Criminal Court
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Recent studies have highlighted the instrumental use of language, wherein actors deploy claims to strategically pursue policy goals in the absence of persuasion or socialisation. Yet these accounts are insufficiently attentive to the social context in which an audience assesses and responds to strategic appeals. I present a theoretical account that highlights the distinctly powerful role of international law in framing strategic argumentation. Legalised discourses are especially legitimate because law is premised on a set of internally coherent practices that constitute actors and forms of action. I then illustrate the implications in a hard case concerning US efforts to secure immunities from International Criminal Court jurisdiction. Contrary to realist accounts of law as a tool of the powerful, I show that both pro- and anti-ICC diplomacy was channelled through a legal lens that imposed substantial constraints on the pursuit of policy objectives. Court proponents responded to US diplomatic pressure with their own legal arguments; this narrowed the scope of the exemptions, even as the Security Council temporarily conceded to US demands. While the US sought to marry coercion with argumentative appeals, it failed to generate a lasting change in global practice concerning ICC jurisdiction.
Bower , A S 2015 , ' Arguing with law: strategic legal argumentation, US diplomacy and debates over the International Criminal Court ' Review of International Studies , vol. 41 , no. 2 , pp. 337-360 . DOI: 10.1017/S0260210514000217
Review of International Studies
Copyright © British International Studies Association 2014. This work is made available online in accordance with the publisher’s policies. This is the author created, accepted version manuscript following peer review and may differ slightly from the final published version. The final published version of this work is available at http://dx.doi.org/10.1017/S0260210514000217
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