Customary international law lets powerful states legalize violations by routinized practice

Evidence

In the very argument that Israel is a paradigmatic modern state, there is the clear premise that because of the fact of being a state it is able to accomplish its virulent project, a premise that brings us back not only to the two necessary conditions making up the structure of thought I have been articulating but also to the state of extraordinarity, a state of sovereignty integral to these two conditions. Israel does not merely violate international law at will, but it does so partly in the process of creating new international norms. In other words, so-called violations of the norm are re-created as norms. What is significant in this productive process is that the law and its sociological agents—the lawyers and jurists—instate themselves (no less than the medical profession or technological sciences) as the handmaidens of the state. Engaging in what the law scholar George Bisharat has aptly called “legal entrepreneurialism,” Israel pursues a policy of taking illegal actions under prevailing norms of international law “with the hope that they will, ultimately, gain approval.” That this is made possible is due to the very nature of the structure of this law. Constituted as much by customary state practice as by treaty and contract, this law in its elaboration rests heavily, as it has since its rise, on the understanding that what states do as routinized practice acquires acceptance by other states—expressly or tacitly—thereby gaining the status of a lawful practice. “In other words, the determination of an act’s legal status turns on the responses of other states, which are not always immediate, explicit, or uniform. Hence, it is sometimes unclear whether a particular state action that deviates from settled international law is, indeed, simply illegal, or whether it is, instead, the leading edge of a new international legal norm.” While it is true that “Israel’s effective capacity to write law through violence is a function of power,” it is equally true that this power is ultimately the function of a sovereign sense of domination. When compared with military might in the context of our Islamic case study, it becomes all too obvious that not all such might translates into self-authorizing force in the service of genocidal behavior. — Wael Hallaq, Restating Orientalism, 438

Categorization

• DEFINE: Explains how customary international law’s reliance on state practice enables ‘legal entrepreneurialism’—the mechanism by which violations become norms.
• DEEPTHINKING: The insight that international law’s customary-practice foundation structurally rewards powerful states’ violations by converting them into new norms is a dense, paradigm-shifting observation about how law and sovereignty interact.