Justifying force: international law, foreign policy decision-making, and the use of force
| Author | Kyle Rapp |
| DOI | 10.1177/13540661221077162 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
https://doi.org/10.1177/13540661221077162
European Journal of
International Relations
2022, Vol. 28(2) 337 –360
© The Author(s) 2022
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DOI: 10.1177/13540661221077162
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E
JR
I
Justifying force: international
law, foreign policy decision-
making, and the use of force
Kyle Rapp
University of Southern California, USA
Abstract
What is the role of international law in foreign-policy decision-making? In particular,
why do leaders justify policy decisions with appeals to international law and why do
these appeals make the references that they do? This paper combines scholarship on
the role of justifications and the permissive power of international law, theorizing that
decisionmakers will seek out international legal justifications over justifications that
reference non-legal claims. These justifications are seen as particularly important in the
contemporary world, reflecting the legalized nature of international relations today.
In particular, decision-makers will especially prefer to reference codified international
agreements over customary international law, seeing a particular value to referencing
a written text even if it is not as directly connected to the issue at hand. These more
general justifications are, in turn, preferred over non-legal justifications. This reflects the
importance of international law in international relations—in a deeply legalized system
actors feel compelled to portray their behaviors as legal, even if these justifications are
tenuous or if pursuing them is time and resource consuming. The United Kingdom’s
1956 intervention in the Suez and the United States’ 1983 intervention in Grenada—are
used to test these assumptions. Both cases support the theory: decision-makers prefer
legal justifications, pursuing these over other options. In addition, decision-makers
appear to prefer legal arguments built on codified law, keeping with the theoretical
predictions. These findings deepen our understanding of how actors understand and
use international law, its role in justifications, and the legalized nature of international
relations today.
Keywords
Rhetoric, international law, foreign policy, international society, Cold War, global
institutions
Corresponding author:
Kyle Rapp, PhD Program in Political Science and International Relations, University of Southern California,
Los Angeles, CA 90089, USA.
Email: krapp@usc.edu
1077162EJT0010.1177/13540661221077162European Journal of International RelationsRapp
research-article2022
Article
338 European Journal of International Relations 28(2)
Introduction
What is the place of international law (IL) in foreign-policy decision-making? Over cen-
turies, IL has developed a robust system of rules regulating state behavior. Especially
since the end of the Second World War there has been a concerted effort to legalize inter-
national relations (Hathaway and Shapiro, 2019). While there may be theoretical disa-
greement within international relations about the degree to which IL shapes foreign
policy, or how, it cannot be denied that IL is frequently used to justify policies, including
the use military force. Research has long examined the role of justification in politics,
including in foreign policy, showing that leaders justify policies to reduce the costs of
pursuing them by either building support or heading off criticism (Anderson, 1981;
Kornprobst, 2014). Scholars have highlighted the use of IL in these justifications, show-
ing that decisionmakers use the language of IL to justify their policy decisions when
justifying their policy decisions (Hurd, 2019; Peevers, 2013).
Indeed, scholars have noted that IL has a permissive (Hurd, 2016; Sanders, 2011: 606,
2018: 13) and productive (Kinsella, 2005, 2011) role in international relations—it pro-
vides actors a language that they may use to pursue their goals and legitimate their
actions. These justifications reflect the place of legalism—the “practice of using law and
legal arguments to explain, justify, or contest acts and policies (Hurd, 2018: 266)”—in
international politics. International law, in particular, offers an important language of
these claims—it is often seen as a “particularly legitimate” (Bower, 2020: 137) language
in international politics, one which cannot be easily substituted by other types of claims
(Hurd, 2018: 269). Furthermore, in using these claims, actors reshape the law meaning
that states who engage in making legal justifications are not only justifying their immedi-
ate political choices but are also shaping how the law will evolve and be used in the
future (Byers, 1999: 37; Hurd, 2016: 9; Ross, 2021: 3). How do decisionmakers under-
stand these legal claims, though, and how important are they seen in the foreign policy
process? Are IL justifications a language of convenience or are legal justifications deeply
embedded within the decision-making process? Understanding how and why states make
the justifications that they do may help us better understand the role of these justifica-
tions in IR—especially their use as a tool by powerful states, their relationship to the
development of IL, and the place of IL in the foreign making process.
This paper builds on scholarship on justifications, legalism, and the permissive capac-
ity of IL to explore the decision-making processes that underpin its use and address
exactly these questions. How do actors pursue legal justifications? And why do these
justifications often depend on complex claims and references to multiple bodies and
types of law? I argue that decisionmakers attempt to create the most specific justifica-
tions that they can, drawing on codified legal references where possible in order to legiti-
mate their behavior with references to shared written standards, as these may be seen as
particularly strong justificatory references (Bower, 2015, 2020; Rapp, 2020). Actors can-
not infinitely reinterpret the law, there are limits to what claims may be accepted (Hurd,
2016: 14), and codified texts may help decisionmakers connect their justifications to
accepted, or at least contestable, legal justifications.
In exploring these tensions, this paper further illuminates the depths of international
legalism in international politics. It shows how, in many cases, “law provides legitimation
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