Rapp, K. (2020). Law and Contestation in International Negotiations. Review of International Studies, 1-19. doi:10.1017/S0260210520000303

What is the role of rhetoric and argumentation in international relations? Some argue that it is little more than ‘cheap talk,’ while others say that it may play a role in persuasion or coordination. However, why states deploy certain arguments, and why these arguments succeed or fail, is less well understood. I argue that, in international negotiations, certain types of legal frames are particularly useful for creating winning arguments. When a state bases its arguments on constitutive legal claims, opponents are more likely to become trapped by the law: unable to develop sustainable rebuttals or advance their preferred policy. To evaluate this theory, I apply qualitative discourse analysis to the US arguments on the crime of aggression at the Kampala Review Conference of the International Criminal Court – where the US advanced numerous arguments intended to reshape the crime to align with US interests. The analysis supports the theoretical propositions – arguments framed on codified legal grounds had greater success, while arguments framed on more political grounds were less sustainable, failing to achieve the desired outcomes. These findings further develop our understanding of the use of international law in rhetoric, argumentation, and negotiation.

Working Papers (Available Upon Request)

Justifying Force:
International Law, Foreign-Policy Decision-Making, and the Use of Force 
Working Paper
* Best Graduate Student Paper,
ISA West 2018
What is the role of international law in foreign-policy decision-making? In particular, why do leaders so often make international law justifications for foreign policy decisions? While there is a growing body of research highlighting the role of international law justifications in shaping domestic support, this paper argues that decision-makers care about international law as a way to justify their actions to international audiences, employing its unique rhetorical strengthens in the international realm to gain support or acquiescence for their policy decision. This paper draws on the theory of rhetorical coercion to develop an understanding of the role of international law in foreign-policy decision making. I hypothesize that states develop legal arguments, particularly arguments referencing specific legal standards, to justify their actions to international audiences. Two cases– the United Kingdom’s 1956 intervention in the Suez and the United States’ 1983 intervention in Grenada – are used to test these assumptions. Both cases support the theory: decision-makers utilize international law as a means of justifying their policy to international audiences, in contrast to many existing theories. Additionally, decision-makers appeared to have preferred legal arguments built on specific claims, in keeping with the theoretical predictions.

Legal Rhetoric, Human Rights, and the Universal Periodic Review

Working Paper
What is the language of effective human rights argumentation? When challenging a state’s human rights practices, actors can draw on a range of discursive options from the ethical and moral to the political, and legal. Current research on human rights argumentations highlights how rhetoric is used by actors to create political outcomes, emphasizing the role of human rights language on a case-by-case basis. However, little scholarship to date has relied on quantitative methodology to systematically analyze the role of legal claims, and their resulting acceptance or rejection, in human rights argumentation on a global scale. However, little scholarship to date has analyzed the role of legal claims in human rights argumentation on a quantitative and global scale. This study uses data on all recommendations made at the Universal Periodic Review, a United Nations mechanism by which all states are regularly reviewed on their human rights practices. Using an original coding of legal and nonlegal recommendations, this paper tests the hypothesis that legal claims will have the greatest likelihood of acceptance by a state under review compared to nonlegal claims, emphasizing the role of rhetoric in international relations and the use of law in human rights discourses.

Social Media and Genocide: The Case for Home State Responsibility

Working Paper
(Under Review)
Who, if anyone, is responsible for ensuring that social media is not used to incite or coordinate genocide? As events in Myanmar and elsewhere have made clear, this is far from a hypothetical question as independent investigations have raised the fact that Facebook has been used to incite and coordinate genocide and other acts of widespread violence. While case law and scholarship have recognized and punished the use of mass media - such as radio and film - in past mass atrocities, social media poses a unique challenge due to its transnational nature and status as a corporate, non-state, actor. While there is a growing, and commendable, effort to recognize more significant obligations on the part of transnational corporations, there does not exist a settled interpretation of the law on the matter. Considering the case of Myanmar in particular, this paper explores the relationship between genocide and social media, emphasizing how the cyber-realm poses unique challenges to international legal questions and offering one possible solution.
Drawing on the duty on states to prevent genocide as an egra omens obligation, as well as the international law of state responsibility and the concept of home state responsibility for transnational corporation’s human rights compliance, this paper argues that ‘home states’ are obligated to respond if and when a social media platform is used to incite or coordinate genocide abroad. Doing so is an obligation arising from the genocide prohibition and made lawful under the law of countermeasures and the obligations facing home states to ensure meaningful regulation of transnational social media corporations in mass atrocity situations. In addressing these points, this paper considers possible objections from both human rights law and the principle of non-interference, finding that neither raises meaningful objections to the argument. Finally, the paper ends by raising the question of how such an obligation may be realized, highlighting both domestic and international options.
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© 2018 by Kyle Rapp