Mingling and Strategic Augmentation of International Legal Obligations

Abstract

AbstractManaging foreign affairs is in no small measure about anticipating the actions (and non-actions) of others, and about taking steps to limit the unexpected—and the undesired. Law has long been recognized as important to these tasks. Nevertheless, standard IR treatments often overlook important properties of law, even when trying to account for international law's effects on behavior. Chief among these overlooked properties is the fact that legal rules are formulated for general use, which means their provisions lack determinate meaning in relation to the full range of facts they may be applied to. Selecting and using legal rules to guide or assess behavior thus requires interpretation. Self-interested actors may differ regarding the applicability, scope, or meaning of individual rules, and still more so where multiple legal rules are in play. In situations where political stakes are high, powerful actors may not be content to leave all options on the table. Instead they may use interpretative tactics to mingle obligations from different agreements and, where needed, to augment relevant legal obligations in efforts to prospectively ensure, in the mode of Riker's heresthetics, that interlocutors feel compelled by legal circumstances to enact the more powerful actor's preferences. I demonstrate how agreement mingling and augmentation function in complex legal environments by reexaming US efforts to insulate its citizens from unwanted exercises of jurisdiction by the International Criminal Court (ICC).