Beyond the Habitual: Legal Argument Upon the Use of Force and During the Conduct of Hostilities
Hughes, David Michael
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This dissertation moves beyond traditional assessments of legal compliance. It offers a more complete understanding of how international law functions upon the use of force and during the conduct of hostilities. The dissertation consists of four case studies each presented and published as standalone articles that provide fuller descriptions of international laws efficacy within fraught international contexts. By moving beyond the common evaluative standard of compliance, this dissertation presents a pluralistic conception of international laws function and purpose. Accordingly, the first case study presents an account of the way that international humanitarian law is used to manage prolonged occupation. The second case study shows how the traditional language of legal legitimacy is being supplemented by states that now complement claims of legal compliance with assertions of investigative willingness. The third case study engages with the notion of lawfare and suggests that this term as become a means of limiting access to international justice. The fourth and final case study provides a communicative theory that describes the microprocesses that states employ when they use international law to argue and to advance military and diplomatic objectives. Collectively, these case studies understand international law as a multifunctional tool. They provide accounts of how international law functions, how it compels, how it facilitates, and how it is altered. Through a series of rhetorical moves the state identifies the forms of international law with which they adhere, it devalues or deflects certain obligations by accentuating others, it establishes and develops conceptions of international law with which it wishes to further, and it presents the resulting engagements as illustrative of a commitment to the international legal process and global order. This dissertation asks not whether states comply with international law but how they comply.