by Daniel Bodansky*
Is the function of international law to promote cooperation or conflict? That is the question posed by Monica Hakimi’s provocative article, “The Work of International Law.” Hakimi claims that most international lawyers subscribe, whether explicitly or implicitly, to what she dubs “the cooperation thesis” – namely, that international law serves to “curtail conflict” (p. 3) and advance states’ “shared agendas” (p. 1), and that its success in doing so is the appropriate “metric” for evaluating international law (pp. 6, 19). Hakimi argues strongly against this view. The cooperation thesis, she maintains, is “specious” (p. 6), “unfounded” (p. 62), and, if not “altogether wrong”, then at least “seriously flawed” (p. 1). She claims, instead, that conflict is a “pervasive” feature of international law (p. 47), that focusing on international law’s role in enabling and facilitating conflict “explains the legal practice much better than the cooperation thesis does” (p. 36), that “intractable conflict” is not an impediment to international law’s mission” (p. 25), and that, in facilitating conflict, international law plays a positive role. In short, she argues that conflict is part of the “project” or “work” of international law (pp. 8, 42, 64), not an indication of failure.
Despite these bold claims, what Hakimi actually establishes in her article is more modest. She shows that, in some instances: (a) international law enables conflict, and (b) conflict can serve useful functions. To the extent that anyone subscribes to an absolutist version of the cooperation thesis, then these points serve as useful correctives. They illustrate that international law works in diverse and complicated ways, and that legal conflict is not always bad. But they do not demonstrate that the cooperation thesis is “specious” or “unfounded.” Actors do use international law to promote cooperation, as Hakimi herself recognizes, and “[s]ome conflicts are plainly deleterious and best avoided” (p. 45). So the cooperation thesis is not untrue; it is, at worst, incomplete. In describing the cooperative role of international law, it gives insufficient emphasis to the ways in which international law enables conflict.
Hakimi may be right that international lawyers tend to emphasize international law’s cooperative rather than its conflictual role, but, if so, they are unusual. For most people, law is much more associated with conflict than cooperation. The words “lawyer” and “lawsuit” do not usually evoke an image of singing Kumbaya around the campfire. More likely they bring to mind Dickens’ epic case, Jarndyce and Jarndyce – which “droned” on so long and “became so complicated that no man alive knew what it meant,” and which ended only after the lawyers’ fees had exhausted all of the resources of the estate. Danny DeVito cogently summed up the popular image of lawyers in the movie, Other People’s Money: “[Lawyers are] like nuclear weapons. They have theirs, so I have mine. Once you use them, they fuck everything up.”
Of course, Dickens’ and DeVito’s views are caricatures of the legal system. In domestic law, litigation is associated with conflict. Actors litigate in order to vindicate their rights; the process is zero sum and hence conflictual. “Law helps create [people’s] grievances and galvanize them to fight for their cause,” as Hakimi notes (p. 40). But transactional law, in contrast, is interest-based and generally promotes cooperation. “Getting to yes” requires an outcome that produces mutual gains.
To the extent that international lawyers emphasize the cooperative rather than the conflictual role of international law, one reason may be that much of international law is transactional. It involves negotiating agreements that require the consent of states and hence must leave everyone better off. A good example is the Montreal Protocol on Substances that Deplete the Ozone Layer, often described as the most successful international environmental agreement to date, which establishes a cooperative regime to promote states’ common interest in preserving the stratospheric ozone layer.
The logic of Hakimi’s argument suggests that even an agreement like the Montreal Protocol might be understood as enabling conflict, by using ambiguous terms that permit differing interpretations and by authorizing parties to use trade measures against non-participating states. But characterizing the Montreal Protocol in this way would be a little like saying that the work of business contracts is to promote conflict. Yes, contracts can sometimes lead to litigation, but that is not their object. Litigation is a sign of failure rather than success. Similarly, tort law gives “actors reasons to fight” (p. 59). But it would be misleading, at best, to describe the work of tort law as enabling conflict, rather than remedying private wrongs.
Although Hakimi rightly notes that international law in some cases enables or legitimizes conflict, this also does not mean that “law is essential to conflict” (p. 39), unless we take a very limited view of what constitutes “conflict.” The Visigoths did not need a shared legal framework with the Romans in order to sack Rome, nor did the Russian bombing of Aleppo presuppose a common legal framework with the Syrian rebels. Hakimi cites chess in support of her argument that conflict requires common ground rules (p. 37). As she says, “having … ground rules helps global actors disagree” (p. 39). But chess represents a very benign form of conflict. Of course, the game of chess is defined by a set of rules, and conflict within that game depends on these rules. Similarly, argumentation (legal or otherwise) requires shared understandings that make communication and disagreement possible. But not all conflicts take place within a rule-governed framework like a game of chess or a courtroom; not all are discursive. Boxing may depend on a set of agreed rules, but a barroom brawl does not. Nor does ending a chess game by shooting one’s opponent – or settling an international dispute by invading the other country. Legal rules enable and are integral to legal conflict, but not necessarily to conflict more generally.
Seemingly, the most radical of Hakimi’s claims is her normative argument that international law’s role in enabling or facilitating conflict is positive. Again, however, Hakimi’s argument, on closer examination, is less radical than it might appear at first glance. She does not espouse the Nietzschean view that conflict is good in itself. Rather, she shows that conflict can sometimes be a useful means to achieve other ends. It can “be a critical step in the process of reaching a deal” (p. 42); it can “release tensions that would otherwise express themselves in more destructive ways” (p. 44); and it can allow global actors to “disagree in relatively productive ways” (p. 47). Conflict is not necessarily a pathology. It is “often an instrument of the kind of cooperation that the cooperation thesis envisions” (p. 63).
This is an important point, but I do not think it will be news to supporters of the cooperation thesis. Enforcement, after all, often engenders conflict; but no one would say that, if a regime provides for enforcement, this means that it is not aimed at achieving shared objectives – that Chapter VII of the UN Charter undercuts the cooperation thesis. The fact that civil rights movements have engendered conflict – even war – does not mean that the “work” of civil rights is to enable or facilitate conflict, rather than to promote justice. Hakimi attempts to distinguish her position from the familiar view that “if international law at times fosters conflict, its true mission” is cooperation (p. 41), and that “the work of international law is to get us there as harmoniously as possible (p. 42). But here the difference between her view and that of the cooperation thesis seems one of nuance and tone, rather than of substance.
In stressing the positive roles of conflict, Hakimi shines the spotlight on an often underplayed aspect of international law. Conflict may not be “integral” to cooperation, as she claims (p 8); cooperation in delivering the mail internationally, for example, does not depend on conflict. But neither is it antithetical to cooperation (p. 36). Hakimi’s article in praise of conflict provides a useful corrective to the tendency among some international lawyers to see conflict as perverse. It reminds us that promoting common ends may not be simply a matter of joining together to cooperate.
* Daniel Bodansky is a Foundation Professor of Law at Sandra Day O’Connor College of Law, Arizona State University.