Hughes: How States Persuade: An Account of International Legal Argument Upon the Use of Force

David Hughes (Univ. of Michigan - Law) has posted How States Persuade: An Account of International Legal Argument Upon the Use of Force (Georgetown Journal of International Law, Vol. 50, No. 4, 2019). Here's the abstract:

This Article presents a theory of the sociology of argument in international law and considers how persuasion, through international legal argument, shapes legal change and influences notions of compliance. Commonly, international law is portrayed as a medium for debate. Within the resulting debates, persuasion is understood as a tool to induce compliance. Yet this is only one side of the conversation. Persuasion is a two-way discourse. Efforts to alter the behavior of a “non-compliant” state through cogent communication are often met with or preempted by legal arguments put forth by the state. This is perhaps most apparent in the deliberative environments that accompany the use of force and the conduct of warfare.

Built around a series of case studies in which states offer legal arguments in support of actions that, prima facie, extend beyond the limits of legal permissibility, this Article presents a theory of persuasion and legal communication that differs from how legal argument and international law are commonly under-stood. This Article offers a detailed and theorized account of the processes through which the non-compliant state argues, persuades, and employs international law. By mapping and conceptualizing persuasive techniques, I suggest that international law must be considered both in compliance and in violation. Switching emphasis and considering the actions and arguments offered by the “non-compliant” state facilitates a novel and complete understanding of the diplomatic, informal, and daily interactions that more commonly and more consequentially define how international law is understood, practiced, and altered.