Law and Legal Process in the Resolution of International Conflicts

Michelle Gallant, University of Manitoba School of Law

Abstract

Law casts its shadow on virtually all areas of human conflict. The dissolution of marriage and the resolution of familial obligations and property rights upon the breakdown of personal relationships occur against the backdrop of a legal framework. Conflicts with a state over access to public resources or the rights of defendants in a criminal trial are regulated and resolved within the context of constitutionally-binding legal norms and domestic human rights instruments. Tensions between competing corporate enterprises over injury to financial interests or access to markets are determined in accordance with the legal principles that govern contracts and commercial affairs. Law exerts its force in almost all areas where interests collide and some form of conflict ensues.

Law casts no less a shadow on international affairs although its influence and relevance in this sphere tend to be most keenly challenged. The cacophony of critics who deride the utility of the international legal apparatus resonates around the globe. From trade to war to attaching criminal liability to heads of states, law stands accused of affording little value to the resolution of international discord.

Accusations chiefly stem from a persistent belief that when law confronts the formidable power of individual sovereign nations, it is law that must concede. It is the dictates of powerful players, not the dictates of law, that reigns.

There is some validity to this accusation. Law does, at times, yield to power. But the converse is equally true: power does, with considerable regularity, respect law. Even when state actions do not conform to a rule of law, law frames the conflict and structures the analysis of its underlying dynamics. Though law may not always determine a particular outcome, it has more than a mere vestige of relevance to the resolution of international conflicts.

This chapter seeks to demonstrate how the shadow of law informs international conflicts. The first part sketches certain broad themes of law and legal process as they manifest in the global sphere. Organized around a discussion of the regulation of the use of force, a context in which legal norms attract distain, the second part illustrates the capacity of law and legal process to shape and moderate warfare. Rather than a robust defence of international legal order, this chapter gently rebukes the myopic claim that law contributes little to the mitigation of inter-state conflicts.