The Language of Law and the Practice of Politics: Great Powers, Small States, and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia

If international law is all but irrelevant to international relations why do states spend so much time and effort justifying their actions under international law? The immediate reaction by many is to dismiss this as cheap talk, a rhetorical fig leaf or simple bluster of little consequence. This Article aims to debunk the notion that the rhetoric surrounding international law is of little consequence. Rather than mere cheap talk, the rhetoric of international law is at times used by great powers (and other states) in an attempt to gain tactical, if not strategic, advantages. This Article seeks to elucidate what is acceptable and what is not in modern diplomatic discourse and the relation of this acceptability to state practice. In this sense, international law serves as both a vocabulary and a grammar for diplomacy. International law is a vocabulary in that it defines the words that can or cannot be used in diplomatic discourse, the terminology that is or is not acceptable. Similarly, international law provides a grammar for international relations by setting the rules by which words fit together. By cabining what can be said in international relations, international law defines norms, shapes expectations, sets the boundaries of what can be legitimized and, ultimately, can make it more or less likely that certain state actions will be successful. I will use one topic area—arguments over self-determination—and two cases—Kosovo and South Ossetia—to explore this relationship between the language of law and the practice of politics. This Article begins by briefly setting the background of the Kosovar and South Ossetian conflicts. Section III is a quick primer on the evolution of the concept of self-determination and its sometimes difficult coexistence with the concepts of sovereignty and territorial integrity. Section IV turns to the analysis of how legal argumentation was used by Russia, the US, and the EU in the cases of Kosovo and South Ossetia. Although I note the relative strengths and weaknesses of the arguments, I am less interested in who was right or wrong as opposed to what strategy was used (if any) in deploying the language of international law. I am especially interested in how Russia, in particular, has used the language of international law as a tool of public diplomacy in an attempt to spin the perceptions or control the narratives related to both Kosovo and South Ossetia. Finally, Section V considers how the rhetorical use of international legal argumentation goes beyond managing perceptions and can actually affect the evolution of the substance of international law. Language as a social interaction defines and reinforces norms which, in turn, are fundamental to what becomes effective law. In the case of international law and international relations, the words used by hegemonic, or great, powers are especially influential. Great powers may not only use the language of law to legitimize their actions but also to propose new definitions for existing terms and, in time, change international law itself. For this reason alone, law talk by the great powers is not cheap talk. It is an attempt to change the rules of the game