Beyond Courtroom Arguments: Why International Lawyers Need to Focus More on Persuasion, Part II

In my last post, I noted several gaps in the literature on legal persuasion, notably the reasons actors make legal arguments, the forms those arguments take, and their effectiveness.  In this post, I want to express a few views on the first two of these questions, based on research that reflects my experience in-house at several international institutions whose mission includes encouraging compliance with international norms.  In brief,  I’ve tried to develop a theory under which an international actor (government, NGO, non-state actor, corporation, etc.) seeking to persuade another actor to comply makes decisions about the sort of strategy it will use based on four inputs:

• Ÿ the nature of the compliance dispute;
• Ÿ the parties to the dispute;
• Ÿ the institutional setting for the persuasive process; and
• Ÿ the traits and sense of identity of the persuading entity.

These inputs will affect all aspects of its persuasive strategy — the timing of the intervention (i.e., the ripeness issue), the specific institutional players it will deploy (e.g., high vs. low-level actors), as well as the substantive content of the argumentation — including, of course, its legal component. (image: illustration of a scene from the novel Persuasion, entitled, “The Unwelcome Hints of Mr. Shepherd, His Agent,” credit)

The legal arguments used by the persuader – the outputs — will also fall along four dimensions.  Those arguments will vary according to what I have termed their:

• publicity (from secret all the way to public);
• density (from sparse in terms of detailed legal interpretation all the way to thick with it);
• tone (from gentle and educative all the way to confrontational); and, most critically for our purposes,
• directness.

By directness, I mean the centrality that law will assume within the argument for compliance.  The concept of directness helps us understand the nuances of legal argumentation as a way to promote law compliance.  Three options for directness are possible, where, let’s say, X is the behavior required by the law. (I am simplifying based on a notion of law as imposing obligations.)

First, the persuader can invoke law directly, as in, “Please do X because it is the law.”  Such a plea seeks foremost to base compliance on a need felt by the target to meet a legal obligation.

Second, the persuader can use law indirectly, as in, “Please do X because it is the law, and compliance with the law is [moral, economically advantageous, etc.].” Here, a desire to comply with law as such is seen as insufficient to alter the target’s behavior, so the persuader explains the benefits of compliance or the harms from noncompliance.  The use of such additional arguments is quite common, even if the nonlegal considerations deployed will vary across targets and persuading entities.

Third, the persuader can use law furtively, by simply removing the reference to law, as in, “Please do X because it is [moral, economically advantageous, etc.].” Although still seeking compliance with the law, the persuader does not argue in legal terms at all.

Although I think all persuading actors work according to these inputs and outputs, let me elaborate through the example of the International Committee of the Red Cross – the sui generis Swiss NGO that is constantly seeking to persuade states and armed groups to comply with IHL.  Although at times it argues that warring parties must comply because IHL is the law – the direct option above — it more often relies on the other two forms, indirect and furtive legal argumentation, each of which entails nonlegal arguments.  The ICRC’s alternatives to law talk include principally:

• Ÿ (a) humanitarian arguments (i.e., that changed behavior will reduce the suffering of innocent victims);
• (b) political arguments (i.e., that changed behavior will improve the target’s domestic or international reputation);
• (c) economic arguments (i.e., that changed behavior will lead to additional sources of foreign or domestic revenue);
• (d) pragmatic arguments (i.e., that changed behavior will improve the efficiency, discipline, or internal functioning – or treatment by opposing forces – of the target’s armed or security forces);
• (e) moral arguments (i.e., that changed behavior is the morally right way to respond, in the sense of the way a decent military or security force should act); and
• (f) customary arguments (i.e., that changed behavior is demanded by the customs and mores of the target’s society).

The ICRC thus offers ideas to warring parties on how compliance with the law is in their own interests, as it could improve military discipline, encourage reciprocal conduct by the enemy, promote a side’s reputation, appeal to a side’s moral values, and advance the prospects for long-term peace.  Alternative argumentation is critical when interlocutors are ignorant of, or might be confused by, the law’s contents, or see IHL as a creation or tool of their enemy. It is also particularly useful in noninstitutionalized settings, affording more flexibility in the terms of discussion.  As a result, one witnesses a spectrum of dialogues with regard to their legal component.  At one end might be exchanges in conference rooms with the U.S. Department of Defense or Israel Defense Forces, each staffed with legions of highly skilled lawyers; at the other might be conversations in isolated camps with the Lord’s Resistance Army, a Sudanese rebel group, or elements of the Taliban.

So why should lawyers care about all these alternatives to legal argumentation?  They seem about as far from good legal arguments as we can imagine.   Because, in a word, as international lawyers, we are supposed to care about compliance with the law, and the real experiences of actors seeking that compliance from others show that the invocation of international law does not represent the exclusive or even dominant method for seeking it.  While it is probably impossible to know in a quantitatively robust sense which arguments actually work, if we assume actors’ persuasion strategies are rational and based on their sense of what works, then we can say that achieving compliance with law does not necessitate – or even argue for – a conversation laden with law.  Legal argumentation might assist the task, but it can equally undermine it.

These strategies also show that the modes of argumentation adopted by institutions seeking to promote law show that they are more than willing to settle for compliance – in the sense of matching behavior to the rules for self-interested reasons – rather than obedience – in the sense of matching behavior to the rules due to some internalization and acceptance of the norm.  That is, the choices that persuading entities make regarding the modes of legal argumentation are choices about how to achieve behavior consistent with the law – about respect for law in the broadest sense of the term.  They are not seeking to persuade a target to internalize a norm, although they are not opposed to it when that is feasible.  Although scholars can usefully identify reasons why entities may internalize legal norms, the mode of argumentation adopted by a persuading entity is based on a much more basic question: how will its use of the law promote compliance in this case, given this dispute, these actors, this setting, and the persuading institution’s identity?

This conclusion about the limitations of a focus on obedience is, in a certain sense, not news at all.  IR scholars recognize that obedience is too much to expect of states and other actors, as well as hard to observe or measure.  Institutionalists do not regard obedience or internalization as essential to effective regimes.  In the domestic context, Joseph Raz long ago noted that the best law can really expect of individuals is compliance (although he used the term “conformity” for the same idea).  Indeed, as the ICRC demonstrates, even institutions that place a priority on – indeed, that make one of their defining missions – the implementation of specific bodies of international law are prepared to forego obedience for compliance.  If a state or armed group observes IHL because the ICRC has convinced it of the advantages of observance, rather than caused it to accept a rule in its heart, the ICRC is prepared to call its intervention a success. Moreover, even those groups that adopt a wholly different modus operandi on legal argumentation, such as large international human rights NGOs — with their public, detailed, confrontational, and direct  approach — seem prepared, at least based on my interactions with them, to settle for compliance.  This observation reinforces my point that those lawyers actually practicing international law may have a much better sense of the limits of legal argumentation than academics who write about it.

Some readers may see a persuasive process oriented toward compliance as a poor substitute for the rule of law. From the perspective of improving behavior, internal acceptance of the rule, either its substance or its bindingness, should remain the long-term goal.  With internalization, entities seeking respect for rules avoid repeatedly engaging with the same targets; indeed, the ICRC has many initiatives to this effect.  In addition, for standards whose customary international law status is questioned, obedience, in the sense of acceptance of the rule because it is law, adds that magical ingredient – opinio juris – that turns practice into custom.  Even consistent compliance falls short in this sense.

Yet, in the end, international lawyers should not object to compliance compared to obedience. In the case of IHL, for example, given the obstacles to internalization during armed conflict, the gravity of the violations and thus the urgency of terminating them, and the actors with whom ICRC delegates interact – not typically lawyers in foreign ministries or legislatures – compliance sounds hard enough.  Beyond the ICRC, Raz’s insight regarding the realistic goals of a legal system seems even more compelling at the international level, and sophisticated international actors comprehend that their goal of furthering law compliance can be undercut if they make the target’s legal obligations too prominent during the persuasion process.

For international law to be more respected by all global actors, we as international lawyers need to recognize the advantages and disadvantages, and the nuances, of a good legal argument.  We are kidding ourselves if we expect certain actors to be persuaded by standard legal arguments, and so we should not make arguments to them as if they are international judges.  Sometimes the law needs to be in the shadows.