Many people claim that international law is not like other law. Some claim it is not even law. (See an earlier post of mine on the subject.) But there are many ways that international law is just like good old municipal law. From a lecture David Kennedy gave last fall:
Indeed, many military professionals remain suspicious about embracing law as a strategic partner. When I was in corporate practice, I often saw the same suspicion among businessmen. Law, they said, was too rigid, looked back rather than forward. In their eyes, law was basically a bunch of rules and prohibitions – you figure out what you want to achieve, and then, if you have time, you can ask the lawyers to vet it to be sure no one gets in trouble. But these businessmen were not getting all they could from their legal counsel. Neither are military commanders – or Presidents – who think of law as a set of formal limits to be gotten around.
What is difficult for us to realize is that a war machine which used law more strategically might, in fact, be far more violent, more powerful, more, ….well, legitimate.
Savvy business clients do not treat the law as static – they influence it. They forum shop. They structure their transactions to place income here, risks there. They internalize national regulations to shield themselves from liability. They lobby, they bargain for exceptions.
Like businessmen, military planners routinely use the legal maps proactively to shape operations. When fighter jets scoot along a coastline, build to a package over friendly territory before crossing into hostile airspace, they are using the law strategically – as a shield, marker of safe and unsafe.
