When the UN Charter made it illegal for governments to go to war with each other, it created the first ever general legal ban on the use or threat of force by one state against another. This has been widely hailed as a dramatic contribution to world order – Michael Byers called it “one of the twentieth century’s greatest achievements.” My article on the ‘Permissive Power of the Ban on War’ opens up this conventional wisdom in two ways. First, I show that the UN Charter does not quite ban war - instead, it regulates the reasons that states may go to war. It is therefore as much a permissive rule as it is a constraining rule. Second, I suggest that much of the impact of international law in world politics comes through this permissive function, and that recognizing it is an important step toward appreciating the close connections between international legalization and global power politics.
In the constellation of fake holidays, International Clash Day is a new star that burns a little brighter every year. Invented in 2013, February 7th celebrates the British band who added sharp politics to the energetic, polyglot music of punk rock in the late-1970s. Their message embraced human rights but with a twist: they saw the possibility that law can be the enemy of human rights rather than its savior.
In contrast to the nihilism of the Sex Pistols and the cartoonism of the Ramones, The Clash offered a rock ’n roll course in political philosophy. It begins with seeing where the sharp end of the state is felt by regular people. Their songs speak of people’s daily lives in the face of police, the military, courts, and laws that all carry the possibility of violence.
Joe Strummer and Mick Jones were the principal songwriters. Their song Know Your Rights amounts to a primer on the difference between rights in theory and in practice. Billed as “a public service announcement… with guitars” it tells the audience to
Know your rights
All three of them
Number one: you have the right not to be killed
Murder is a crime
Unless it was done by a policeman - or an aristocrat
Number two: you have the right to free money
As long as you don’t mind a little investigation, humiliation, and
if you cross your fingers… rehabilitation!
Number three: you have the right to free speech
As long as are you aren’t dumb enough to actually try it
The song comes from knowing that legal rights are interpreted and applied by the state itself. In practice, the value of these rights depends on how this interpretation and application are done. To be shot a person dead on the sidewalk is presumably a wrong. But whether it’s a legal wrong depends on who did it, why, where, and to whom. The legal and political meaning of killing depends on how the state draws lines around accountability. Police badges, stand your ground laws, citizenship status, declarations of war, and skin color are formal and informal features that affect legal accountability.
The pragmatic realism of The Clash could come across as mere cynicism - that law promises one thing but delivers another - but it’s also a foundation for a political worldview that challenges the liberal common-sense.
At the heart of the standard view is the belief that what’s most important is following the rules. These might be rule of law or rules of global governance. The Clash remind us to ask why these rules are the rules and to wonder about who benefits from rule following. This turns attention to the political content of the rules. The injunction to ‘follow the rules’ starts to seem less like a universal good and more like a partisan intervention in long-running social conflicts.
In Julie’s Been Working for the Drug Squad they tell of their friends caught in punitive jail sentences for casual drug offenses. The bureaucratic function of judges - to impose penalties upon rule breakers - feels indistinguishable from the politics of race, class, and power that went into making the law in the first place.
And then there came the night of the greatest ever raid
They arrested every drug that had ever been made
They took eighty-two laws
Through eighty-two doors
And they didn't halt the pull
Till the cells were all full
'Cause Julie's been working for the Drug Squad
They put him in a cell, they said 'you wait here'
You got the time to count all of your hair
You got fifteen years
That's a mighty long time
The liberal faith in law assumes that it protects the individual against the state. The Clash point to something else: that ways that law serve some interests at the expense of others. Instead of a neutral framework that benefits everyone it is better seen as a political structure that allocates power and privilege.
If we were talking about tax law all of this would make for an uncontroversial point. It is easy to see that while tax law imposes its obligations on everyone equally it also favors some people, some kinds of income, some kinds of wealth, at the expense of others. It produces winners in society and also losers, and political fights over tax law are about who sits in which category.
But the idea that law creates both winners and losers becomes much less popular when it moves to the world of international human rights. In global governance, an enchanted view of law is common; it assumes that the rules are good for everyone and that there are no losers.
On the grandest scale, good governance in world order is often seen as requiring faithful adherence to international law. If only governments were more committed to international human rights treaties then then we could be rid of torture, repression, and all the rest. This is what Stephen Hopgood has called ‘Human Rights’ in the uppercase sense - the collection of treaties, states, courts, and activists who have been granted formal power to oversee, criticize, and perhaps even prosecute violations.
The Clash look instead for what Hopgood calls ‘human rights’ in the lowercase. This is the lived experience of people in relation to state violence. From this perspective, the state is likely felt as the main danger rather than a source of protection. It sees human rights as a struggle between the person and the government - it exists when you want to do something that the state wants to prevent. By persisting, you risk a baton to the back of the head, or pepper-spray to the face, or jail or death.
What is at stake here are two different views of the relationship between law and politics. On the one side, ‘Human Rights’ seeks centralized political and legal institutions to implement rules and laws, on the theory that these constrain governments violence against people. On the other, ‘human rights’ sees the danger that these will become more tools in the hands of the state, and likely to favor the state rather individuals.
The Universal Declaration of Human Rights guarantees a right to freedom of peaceful assembly and association. This is a cornerstone of uppercase Human Rights and in theory enables political protests. In practice, however, it is likely that a permit is needed to hold a public rally and so the practical experience of this right - that is, its lowercase version - depends on the terms that the state places on these permits. In the US, local authorities regulate protests in the interests of traffic flow, pedestrian access, safety, and fairness. They may also require that organizers buy insurance and perhaps reimburse for security. The terms of the permit, and thus whether an assembly is lawful or not, are decided by the government.
The allure of law is strong in liberal internationalism and faithful compliance with international law is often seen as a path to good governance. Senator Cory Booker and law scholar Oona Hathaway recently criticized Secretary of State Rex Tillerson for suggesting that US troops might remain in Syria after its fight with ISIS is over. Military occupation violates international law when it is not justified as self-defense and if the US violates the UN Charter in this way it would “undermine America’s hard-earned global leadership as a champion of law-bound international action, perhaps irreparably.”
The Clash tell a little of what this law-bound global leadership looks like to people in Cuba, Nicaragua, and Chile. In Washington Bullets Joe Strummer sings
Oh! mama, mama look there!
Your children are playing in that street again
Don't you know what happened down there?
A youth of fourteen got shot down there
The kokane guns of jamdown town
The killing clowns, the blood money men
Are shooting those Washington bullets again
In the lowercase version, the lived-experience of human rights is undermined rather than protected by American military activities. Personal safety requires that people find a way to avoid getting hit by all those Washington bullets. Chinese, British, and Russian bullets are no better. Human welfare - and human rights - are threatened by the military adventures of powerful governments, regardless of whether they aim to prop up or topple local authority.
The language of law and lawfulness is seductive. It promises a well-ordered world in which formal rights are defended by formal institutions. But The Clash knew well that the law comes from the state and its most natural application is by the agents of the state in pursuit of the goals of the state. It is not about protecting the little guy.
To be sure, the official institutions of Human Rights can be useful to people engaged in struggles against their state. Law and legal institutions are welcome tools for victims looking for a way to fight back or get redress for wrongs. Prisoners at Guantanamo, Evin, Wormwood Scrubs, and elsewhere search for legal paths to improve their conditions and they are sometimes successful.
But we should be honest about which way the law is looking. It encodes the interests of the state and is interpreted and applied in a manner that reflects them. This is not a novel idea - Hannah Arendt wrote Eichmann in Jerusalem to explore what happens when bad policies are legalized by the state and Judith Shklar wrote Legalism on courts’ power to decide political questions.
Today, Trump’s indifference to international human rights provokes a liberal backlash premised on nostalgia for a past that never was. The Clash might say bollocks to both of camps. Their songs offer a third way on human rights. Neither the legalism of international treaties nor the laissez faire of global capital. It is a view that they learned through experience in London in the 1970s, as squatters, buskers, and Carnivale-goers, in the face of racist gangs, police violence, and the bureaucracy of the dole.
There may be a tradeoff between Human Rights and human rights. The first empowers governments to define what people can and can’t do. The second sees state power as the source of the problem itself. To resolve the tension, The Clash offer a practical suggestion in the song Working for the Clampdown.
Kick over the walls
Cause governments to fall
How can you refuse it?
Let fury have the hour, anger can be power
Do you know that you can use it?
And in White Riot, they follow up to ask “Are you taking over or are you taking orders?”
For The Clash, human rights exists in the fight between the state and a person. It comes alive in the desire of a person to do what the government does not want them do to. In that fight, the laws are likely on the side of the state. Investing more power in states and laws may be a backward step.
The Clash tells stories from below, of regular people who find themselves targeted by powerful institutions and remind us to listen to their stories. Their objective - and the central premise of punk rock as a political movement - is to create space in which people can live outside the lines that are drawn for them by others and not be beaten up, jailed, disappeared or killed for it. To get there, they chart a refreshingly clear philosophy on the relationship between law and politics. On International Clash Day, turn up the volume and remember to let fury have the hour.
First published for #InternationalClashDay 2018 at http://blog.press.princeton.edu/2018/02/07/ian-hurd-everything-i-know-about-international-human-rights-i-learned-from-the-clash/
photo by author
Copy #1 has arrived.
My new book 'How to Do Things With International Law' appears this fall. It looks at the politics of international law and the law of international politics. I address the myth that international law is a civilizing force in world politics, and look instead for how governments use international law to advance their interests. It offers an alternative to liberal and realist approaches by highlighting how international law can enable state power through legitimizing policies on war, drones, torture, and more.
The journal of Contemporary Security Policy has a new special issue on targeted killing and changing norms of international order edited by Jodok Troy and Martin Senn.
Details at http://bit.ly/2vyfAuF
The UN Security Council's imperial authority over international affairs is limited only by the requirement that the P-5 agree with each other on its use. It constitutes a kind of internally compromised hegemony of the Great Powers. My new essay at e-ir is here:
A comprehensive look at international organizations in contemporary politics, law, and sociology. Forthcoming November 2016.
Workshop for graduate students and others on international law and international organization at Northwestern University in Chicago Monday December 5th 2016. The workshop aims to support new research on interdisciplinary topics and approaches to the history, law, and politics of international organizations and international legalization. Feel free to share the announcement below.
The ban on war in the UN Charter is often celebrated for restricting the reasons that governments can go to war. But those limits are also empowering for governments: the Charter authorizes governments to use force in self-defense, and they have shown themselves eager to make use of that authority. This facilitates the use of force by states rather than limiting it.
By creating the legal category of 'self-defense,' international law gives to states an iron-clad legal rationale to legitimate their wars. And over time, the category has expanded as powerful states have used it to justify ever broader military interventions in the world. My new article shows the permissive power of international law on war and suggests that the ban on war may make it easier, not harder, for governments to go to war.
If UN peacekeeping is only possible because the UN is legally insulated from the damages it imposes on local people, then it is time to stop engaging in peacekeeping. From Kosovo to Congo to Haiti, the UN's immunity from all court action encourages sloppy and dangerous practices.
Ian Hurd 'End the UN's Legal Immunity,' in The Hill July 22 2016
An open letter to the US Secretary of Defense in support of releasing Mohamedou Ould Slahi from Guantanamo military base.
May 18, 2016
Ashton B. Carter Secretary of Defense Department of Defense 1000 Defense Pentagon Washington, DC
Dear Secretary Carter,
We are professors and teachers from a variety of disciplines. We are writing to convey our interest in the forthcoming Periodic Review Board hearing of Mohamedou Ould Slahi, the author of Guantánamo Diary, and our hope that those proceedings will bring an end to Mr. Slahi’s ordeal in United States custody.
Many of us have assigned Guantánamo Diary to our students and discussed it in our classrooms. We have done so because, as a Pentagon spokesman acknowledged shortly after Guantánamo Diary was published, “it’s part of our country’s history.” We have also done so because it is an important and often surprising work of literature—one that, like other notable works of prison literature, draws a complex portrait of life in captivity and testifies to the resilience of dignity and the human spirit.
When students read Guantánamo Diary, they are troubled by the ordeal Mr. Slahi recounts, and they are moved by his candor, wit, and willingness to recognize the humanity of his guards and interrogators. They are also full of questions, as we are, about why Mr. Slahi is in United States custody at all, and how the treatment he recounts accords with our most basic notions of fairness, due process, and justice.
Because it takes readers deep into some of the most wrenching experiences of our post-9/11 history, Mr. Slahi’s Guantánamo Diary will almost certainly be read for generations. But how it is read in the future will depend in large part on how and when Mr. Slahi’s time in United States custody ends.
We hope the Periodic Review Board will resolve Mr. Slahi’s profoundly troubling story. Guantánamo Diary reminds us vividly that justice is both a universal concept and an individual matter. As educators and as readers, we sincerely hope that Mr. Slahi’s faith in the United States’ fair administration of justice will at last be repaid.
Rebecca A. Adelman
Head of School, Professor of International Relations
University of Kent
Joseph A. Buttigieg
William R. Kenan Jr. Professor of English University of Notre Dame
Joan C. Callahan
Professor Emerita of Philosophy University of Kentucky
Associate Director of the Center for Civil and Human Rights and Concurrent Assistant Professor of Law
University of Notre Dame
Associate Professor of Media & Communication Studies University of Maryland, Baltimore County
Assistant Professor of Law The Ohio State University
Distinguished Professor of English Hunter College/Graduate Center CUNY
Professor of English Lake Forest College
Senior Lecturer, Department of Literature, Film, and Theatre Studies University of Essex
Dean of the School of Law; Distinguished Professor of Law; Raymond Pryke Professor of First Amendment Law University of California, Irvine School of Law
Assistant Professor; Mellon Postdoctoral Fellow
Professor of English University of Connecticut
CIRHUS Research Fellow New York University
Chair, Department of Anthropology Professor of Anthropology
Affiliated Professor of Education; Director of Leo T. McCarthy Center University of San Francisco
Assistant Professor of Religion University of Rochester
Ph.D. Candidate Harvard University
Professor of English University of San Diego
Lisa M. Feldstein
Instructor University of San Francisco
Professor William Felice
Professor of Political Science Eckerd College
Lecturer, Department of War Studies King's College London
Lecturer, Department of Visual Arts University of Chicago
Deputy Dean, Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor of Political Science
University of Chicago Law School
Lecturer, Department of Philosophy University of San Francisco
Associate Professor of Humanities University of California, Los Angeles
Professor of Sociology University of California, Santa Barbara
Ph.D. Candidate Northwestern University
Louann and Larry Temple Centennial Professor of English Literatures University of Texas
Assistant Professor of English/Environmental Studies
Assistant Professor of English North Central College
Adjunct Professor George Mason University
Associate Professor of Philosophy The Catholic University of America
Aaron J Hughes
Artist, teacher, organizer, and Iraq War veteran
Professor, School of Law University of Essex
Professor of Law University of Chicago
Associate Professor and Director, International Studies Program
Elizabeth Shakman Hurd
Associate Professor, Political Science and Religious Studies Northwestern University
David B. Ingram
Professor of Philosophy Loyola University Chicago
Presidential Research Professor of Philosophy and Women's and Gender Studies; Co- Director of the Center for Social Justice University of Oklahoma
Assistant Professor of English Drew University
New York University
Professor/Chair of Comparative American Studies
Professor of History and Director of the Nuclear Studies Institute American University
Senior Research Fellow Open University, UK
Associate Professor Drew University
Associate Professor of English Rutgers University
Assistant Professor University of Illinois, Chicago
Ph.D. Candidate Northwestern University
Professor Emeritus of English University of Notre Dame
Professor of Political Science and Adjunct Professor of Law, Societies and Justice University of Washington
Assistant Professor at American Studies Center
University of Warsaw, Poland
Five College Lecturer in Video Production Mount Holyoke College
Professor, Department of English John Carroll University
Diane Tietjens Meyers
Professor Emerita of Philosophy University of Connecticut
Associate Professor of English UNC Greensboro
Senior Fellow, Carr Center for Human Rights Policy, Harvard Kennedy School
Associate Professor, Institutt for språk og litteratur Det humanistiske fakultet Norwegian University of Science and Technology (NTNU)
Assistant Professor - U.S. American Literature, Cultural Studies
Lecturer in Law SOAS
Associate Professor of English, Social and Cultural Analysis
New York University
Associate Professor of Political Science Northwestern University
Norma J. Hervey
Professor of Social Sciences Charles University, Prague
Deborah Alejandra Popowski
Lecturer on Law Harvard Law School
David L. Richards
Associate Professor of Political Science and Human Rights
University of Connecticut
Visiting Professor of Law Cardozo Law School
Assistant Professor of Religion Carleton College
Professor of Anthropology, Center for Human Rights & Peace Studies Lehman College City University of New York
Professor of English University of Notre Dame
Professor and Chief Librarian Lehman College/CUNY
Associate Lecturer in Criminology and Sociology
Professor Emeritus of Politics and International Relations; Senior Research Fellow Emeritus at Merton College University of Oxford
Dawinder "Dave" S. Sidhu
Associate Professor of Law University of New Mexico School of Law
Assistant Professor Northwestern University
Associate Professor; Director of the Ph.D. Programme
Aarhus University, Denmark
Untold History Education Project
Associate Professor of English and Comparative Literature Columbia University
Professor Emeritus of English University of North Florida
Distinguished Professor of French Graduate Center, CUNY
Professor of Philosophy Ohio Wesleyan University
Assistant Professor of American Literature University of Warwick
Elizabeth Swanson Goldberg
Professor of English; Chair of Arts and Humanities Division
Ph.D. Candidate Northwestern University
Assistant Professor in the Department of English and Film Studies University of Alberta, Canada
Associate Professor of English and Literature Carleton University
Lecturer in English; Director, Writing Center Northeastern University
Professor Emerita of Comparative Studies Ohio State University
Associate Professor Northwestern University
Associate Dean for Faculty Development and Professor of Law
Whittier Law School
Acting Director of Human Rights Studies City University of New York
Congratulations to Swati Srivastava (NU Poli.Sci. Phd candidate) on winning a Mellon/ACLS Dissertation Completion fellowship.
Configurations of Sovereignty: Public and Private Authority Negotiations in World Politics
How is sovereignty negotiated between public and private authorities in international politics? How do these power dynamics change over time? This project uses archival data, comparative historical methods, and an interpretive methodology to investigate private actors who deploy international violence, rules, and ideology. It leverages an understanding of public-private sovereign negotiations in the English East India Company from 1650 to 1789 to better situate the contemporary sovereignty challengers of Blackwater, the International Chamber of Commerce, and Amnesty International. The project shows that rather than representing a threat to state sovereignty, private actors create various configurations of sovereignty together with the state, obscuring who counts as public and private in the first place. Such reorientation maps the multi-sited networks of global power and foregrounds privatized action within a broader history of sovereign governance
A Workshop on History and Politics of International Law
Friday, June 3, 2016
Ripton Room, Scott Hall, Evanston Campus
Universidad de los Andes
University of Toronto
University of West Georgia
University of Hong Kong-Law
Arnulf Becker Lorca
University of Amsterdam
University of Chicago
Univ. of Wisconsin-Madison
Sponsored by Equality, Development and Globalization Studies, the Buffett Institute for Global Studies, and the International Law/International Organization Working Group all at Northwestern University.