Description
International relations scholarship on the legalization of world politics has been largely overlooked by international lawyers. Yet, legal methods bring new evidence on the consequences of the ‘move to law’. Using the legalization of intelligence as a case study, this paper maps and analyses the effects of the resulting international intelligence legalism. Research on international law and intelligence focuses on how – if at all – international law constrains decision-making and action in the realm of intelligence. However, very little attention has been paid to how international law may be used to justify and legitimate intelligence, and what effects such usage may have.
Combining IR scholarship on rhetorical and justificatory approaches to international law with a substantive legal analysis of actors’ engagement with legal norms and processes, and of the legal outcomes of such engagement, I demonstrate that what resembles a ‘move to law’ can sometimes constitute a second-order ‘move to politics’ framed in legal rhetoric. Despite how normatively desirable and necessary the legalization of intelligence appeared during the war on terror and when facing mass surveillance scandals, I argue that the negative effects of intelligence legalism far outweigh the formal rule-of-law benefits of subjecting intelligence to international law.
