Articles

• Johnstone, Ian

Abstract

Why are legal arguments used in a political forum like the United Nations Security Council? This article draws on international law and international relations theory to provide an answer to that question, supported by a case study of the debates over NATO's intervention in Kosovo. The theoretical argument is that international law operates largely through a process of justificatory discourse within and constrained by interpretive communities, composed of the participants in a field of practice who set the parameters of what constitutes reasoned argumentation for that practice. Drawing insights from the theory of communicative action, the article claims that minimal preconditions for this discursive interaction exist in and around the Security Council. The debates over Kosovo are offered as evidence that the legal discourse not only occurs but has independent influence even in that political setting. While legal considerations did not directly cause any decision, concerns about precedent and reputation did influence positions taken as well as subsequent developments in the UN and NATO. The article concludes with an illustrative suggestion as to how Security Council deliberations could be improved, namely the adoption of a set of considerations to be taken into account in debates on humanitarian intervention. The suggested reform would not do away with the influence of hard power and perceived national interest, but, to paraphrase Jurgen Habermas, would give ‘the power of the better argument’ a fighting chance in Council decision‐making.