The war in Iraq - an example of the failure of international law? Indeterminacy in international legal discourse and the use of armed force in Iraq

Abstract

Why did international law fail to prevent the outbreak of war in Iraq? This paper looks beyond traditional realist explanations for a deeper theoretical explanation. "New Stream" theory, part of the broader critical legal studies movement, challenges the idea that international law can provide rational, objective and principled resolution to international disputes. The international law discourse surrounding the use of armed force in Iraq is analysed from this New Stream perspective to see whether it provides an explanation for the seemingly endless and futile nature of the discourse. This article begins by introducing the basic premises of New Stream theory, including the central tenets of the liberal conception of international law, the fundamental contradiction inherent in this conception, and the structurally constrained discourse that it dictates. The focus is on explaining how Professor Martii Koskenniemi, a New Stream theorist, can conclude that international law is inherently indeterminate. The article then briefly outlines the background to the Iraq situation and the current law relating to the use of armed force by States. The conflicting arguments about the legality of the United States-led military attacks against Iraq are then laid out. These are analysed from the New Stream perspective to show the way that each argument corresponds to either the ascending or descending argument forms with the resulting endless argumentative tension between them. In this way the indeterminacy of international law is revealed in the context of this particular international conflict. A tentative way forward is suggested. This involves accepting that international law does not (and cannot) work in the sense of providing rational, objective and principled resolution to international conflict and that there is always an inherent subjectivity in the way we argue about international law. International law can provide a common framework and vocabulary for addressing international conflict but the difficult task of finding substantive solutions remain ours.