Bridging the gap between international law and foreign policymaking.

• Author: Joyner, Daniel H.

"Lawyer and diplomat ... are not even attempting to talk to each other, turning away in silent disregard. Yet both purport to be looking at the same world from the vantage point of important disciplines. It seems unfortunate, indeed destructive, that they should not, at the least, hear each other." The above statement was made by renowned international lawyer and former state department official Louis Henkin in 1979. (1) Professor Henkin was bemoaning what he saw as a significant and disturbing gap in communication between the international legal community and the foreign policy community. (2) That such a gap did exist and does exist today is an easily discernible fact. One need only read accounts of an international lawyer's and a State Department or Foreign Ministry policymaker's thoughts on any given subject of international affairs to see that the two are not even speaking the same language, let alone following the same analytical process when examining the issues. While one talks of norms, precedent and international order, the other's rhetoric is replete with references to national interest and practical exigencies. While one looks to the codicils of the UN Charter and a seemingly never-ending supply of rules contained in international conventions and the customs of nations for guidance, the other looks to the latest administration position paper.

From the perspective of the State Department/Foreign Ministry policymaker, it is completely natural that this should be the case. Why, after all, should she devote hours to studying legal opinions, when even the international lawyers can't all seem to come up with the same answer to the simple question "is this legal?" And even if they could, she has a lot more to worry about than some abstract principles of pseudo-law that she knows very well can be broken with near impunity--she knows because she's seen it done a thousand times by her government and others. She knows what her job is--to forward the interests of her state client. (3)

As for the lawyer, he is by now used to being ignored and his ideas scoffed at as being hopelessly idealistic and out of touch with reality. Eventually, he came to accept that his was a discipline which is at the very fringe of consideration by most policymakers, and he is content to theorize and write law review articles about how opinio juris sive necessitatis is at the heart of custom. He stopped trying to have meaningful conversations with the people in government years ago. Frankly, he got tired of his ideas being marginalized and being made to feel like an ivory tower utopianist. The best he can hope for is to get his book published and make tenure early.

As Henkin observed, this is a highly inefficient and truly harmful state of affairs, for both parties. (4) Yet it continues, the officials formulating positions and trying to get a head in the big game, basing their foreign policy assumptions on institutional wisdom and the odd consultation with an outside area specialist; the lawyer writing to and attending conferences with other lawyers; while all the time both communities are looking at the same sets of facts and trying to grapple with the most important issues of state behavior, the relationships of states to each other, and the best ways to promote effective and advantageous interaction between nations.

This is not to say that their perspectives on these and other issues are not quite different. This indeed is at the very core of the communications gap that has always existed between the two communities. However, the process of globalization continues to effect an ever-increasing phenomenon of legalization of international relations, as witnessed by the modern multiplication of international institutions and regimes and high frequency of front-page issues of international politics in which international law and institutions play a significant role. (5) Nowhere is this more apparent than in the debate on international security issues. This fact leads to the urgent understanding that the international legal community and the foreign policy community have a strong mutual interest in overcoming the gaps in communication and culture which have long separated them.

This brief essay will attempt to identify some of the causes of this lack of communication and cooperation between international lawyers and foreign policymakers and will propose pragmatic means by which this sizeable gap may be narrowed. It will offer some prescriptions for both communities for improving their accessibility and acceptability to the other, since as with most instances of miscommunication, no one party is solely to blame. The paper will begin by offering a review of some relevant literature in both the fields of international law and international relations, and will assert that the specific gap between the international legal community and the foreign policymaking community has gone largely unaddressed in academic literature in a targeted, systematic fashion. (6) It will proceed to provide such an analysis, and will conclude with a practical application of the analysis and normative prescriptions based thereon to current issues regarding the Missile Technology Control Regime, a multilateral nonproliferation body.

1. LITERATURE REVIEW

   In recent years there has been a wealth of scholarship on the evolving relationship between the academic disciplines of international relations and international law and the substantive role of norms in international politics. Regime theorists such as Abram and Antonia Chayes and Oran Young have written extensively on the relationship between power and rules and procedures in international polities. (7) Institutionalists such as Robert Keohane have focused on the role of formal and informal institutional arrangements between states and the role of rules within those arrangements in coordinating behavior and shaping the expectation of actors. (8) English School political science scholars as well have pointed to the inherent connection between the concept of an international community of states and the binding force of international law. (9) As Hedley Bull has written:

   A society of states (or international society) exists when a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions. (10) International lawyers as well have devoted a great deal of energy to harmonizing the work of the two disciplines and forging analytical as well as rhetorical links between them. Leading legal scholars in this field include Anne-Marie Slaughter, Kenneth Abbott and Michael Byers. These scholars, while asserting the normative independence and value of international law, have made great strides in opening up the field to analysis in international relations (IR) theory terms, and in examining the role of international law in world politics. (11) As Slaughter has commented:

   Just as constitutional lawyers study political theory, and political theorists inquire into the nature and substance of constitutions, so too should two disciplines that study the laws of state behavior seek to learn from one another ... If social science has any validity at all, the postulates developed by political scientists concerning patterns and regularities in state behavior must afford a foundation and framework for legal efforts to regulate that behavior ... From the political science side, if law--whether international, transnational or purely domestic--does push the behavior of States toward outcomes other than those predicted by power and the pursuit of national interest, then political scientists must revise their models to take account of legal variables. (12) There has also in the field of international relations, particularly since the 1993 publication of the book Bridging the Gap by Alexander George, (13) evolved a body of scholarly writing addressing the perceived disconnect between the international relations academic community and the foreign policymaking community. (14) This work proceeds from the realization that the two communities, while nominally focusing their energies on the same sets of facts relative to cross border political interaction, have almost entirely insulated and independent cultures) (15) Several works in this field have attempted to identify the underlying disparities in analytical approach, questions asked and results desired by the two communities, and have fashioned recommendations to both concerning how the widening gap in communication and cooperation might be narrowed. (16)

   Despite the long history of disciplinary independence of international law and its primary ownership by students of law as opposed to political theory, there seems yet to be a residual impression within some non-legal sectors of the academy that international law as an academic exercise is largely subsumed within, and categorizeable as a sub-discipline under, the overarching subject matter heading of international relations theory. Indeed, international law is thus listed in many political science department registers, highlighting the oft-perceived substantive and procedural softness of international law and the tenuous nature of its existence as a true system of law comparable to domestic legal systems. (17) Thus to develop an analytical treatment of the divergences in form and substance between the academic study of international relations and the practical field of foreign policymaking must to the minds of many within the academy, particularly in secondarily related fields but also to some within the IR community, include scholarship in the field of international law underneath its conceptual umbrella. Is However, this is a thoroughly misconceived view of the classical relationship between international law and international political...