International Law and the Mediation of Culture

When international relations scholars think about international law they either ignore culture or offer highly deterministic accounts of its role. For the majority of scholars, international law is a rational construction, an institutional solution to the problem of order in an anarchical system, a body of rules and practices that reflect the contending interests and capabilities of major states. Issues of culture barely rate a mention. For others, culture is the deep foundation of international law, the structuring “mentality” that gives law its form and content. International law, from this perspective, is a Western cultural artifact, globalized through centuries of imperialism and hegemony. These contrasting views lead to different expectations about the future of international law in today’s culturally diverse international order. For rationalists, law’s fate will be determined by the shifting configuration of interests that accompany new functional challenges and great power transitions. For the more culturally attuned, there are two possibilities. One is that functional utility will replace culture as law’s foundation. International law may well be a Western cultural artifact, but “rational buy-in” will sustain it in a multicultural world. The other, more pessimistic, expectation is that the rule of international law will be fundamentally undermined by cultural diversity, particularly as rising non-Western powers articulate and promote markedly different cultural norms and values.

This essay advances an alternative perspective on culture and international law. After exploring in greater detail determinist accounts of this relationship, I reverse the typically assumed causal pathway between culture and law, presenting international law as a mediating social institution, one that structures global cultural interaction and negotiation. In developing this position I draw on two strands of contemporary anthropological and legal thinking. From anthropology I take the idea that cultural meanings and practices, in all their contested and contradictory complexity, are structured and conditioned by prevailing social institutions. From international legal theory I take the proposition that international law is constitutive: its norms and practices are more than regulatory; they produce agents, structure shared meanings and understandings, and license forms of social action. When these insights are placed within a broader understanding of international society, in which international law is a core fundamental institution, international law can be seen as a key social institution mediating global cultural negotiation. To illustrate the value of this perspective, I consider, however briefly, the way in which the institution of international law conditioned the cultural negotiations that produced the international human rights regime, particularly the two legally binding International Covenants adopted by the UN General Assembly in 1966. For cultural determinists, human rights is the canary in the coal mine, the issue that more than any other brings to the fore the fragility and vulnerability of law in a culturally diverse international order. The issue of human rights has indeed provided a focal point for cultural contestation and negotiation, but much of this has played out within the institutional framework of international law. This framework has defined the terms of cultural engagement (establishing states as the principal negotiating agents, structuring their interaction on the basis of sovereign equality, and licensing certain negotiating forums), ordained the resulting rules and principle as “legal,” and established these norms as social facts around which subsequent cultural engagement on human rights has revolved.

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