International Law, Human Rights, and Politics

Translator’s Introduction

We frequently imagine that laws are set in place and that historical events either do or do not conform to them. Here, Claude Lefort powerfully demonstrates that the opposite is more often the case: the law comes into being as a process that responds, after the fact, to historical contingencies. As global events furnish new test cases for human rights legislation, the discursive landscape simultaneously shifts. Lefort’s style conveys a similar sense of developing—if he frequently gestures to events or metaphorizes historical formations rather than directly addressing them, this is perhaps the point. Just as international law is, as Lefort puts it, perennially “in gestation,” so too must be the language we use to characterize it.

Lefort’s concepts similarly gestate and develop throughout this article, several of them gaining greater clarity near the end of the piece. Among them is the idea, integral to his argument, that international law is an “event,” albeit an ongoing, perennially developing one—this is explained more fully in the article’s final paragraph. Similarly, it is in the final paragraph that Lefort clarifies an earlier remark about the “realism” of law, juxtaposing a “formalist” and a “realist” point of view (this distinction is addressed further in the piece’s final endnote).

Any translation risks occluding or oversimplifying nuances contained in the original text; I enumerate just a couple of the issues most apposite to this article. In French there is one term—droits de l’homme—used to indicate both the revolutionary-era “rights of man” and the post–World War II “human rights.” The first usage of these terms has been flagged in the translation, but it should be assumed throughout that the original in either case is droits de l’homme. In addition, the phrase rapports de force has been translated as “relationships of force” rather than the perhaps more conventional “power dynamics,” “power struggles,” or “balance of power.” This was done in order to retain the notion, explicit in the French, that it is force that drives and underwrites such relationships.

Originally published as “Droit international, droits de l’homme et politique,” Poesie 112–13 (September 2005): 1019–36, this article developed out of talks given at conferences in Buenos Aires in September 2004 and in Budapest in December 2004. All endnotes are the translator’s.

International law: is it law? [Le droit international est-il du droit?]¹ The question is not a new one: it was posed immediately after World War I, when the League of Nations took up the task of establishing the rules by which its members would abide—although at the time there was merely question of a Europe-wide law. What had formerly been known as the law of nations [droit des gens] served little further purpose than to remind sovereigns of the boundaries they must not overstep in the conduct of war. With regard to the obligations that stemmed from treaties contracted between states at the end of a conflict, their fulfillment depended upon the goodwill of the contracting parties, each of which was tempted to call the status quo into question if the relationships of force [rapports de force] were found to have shifted. For the first time, the League of Nations declared its assumption of responsibility for order in Europe by pursuing the implementation of a state of lasting peace [paix permanent]. This did not mean, as we have said, that all war was from then on rendered unlawful, for the League recognized the right of self–defense and the 1928 Kellogg–Briand Pact (named for its principal protagonists) gave way to propositions concerning a new state of war.

International law: is it law? The question returns after the end of World War II with such heightened force that the United Nations sets standards to which all states must conform, even beyond European borders: they now claim to legislate at a global scale.

Detractors of international law foreground two arguments established upon juridical terrain. The first argument is that the supposed law does not mandate...