All organized groups and structures of normative conduct – that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violations carries a price. Normative systems make possible that degree of order if society is to maximize the common good – and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that society embraces.
Rosalyn Higgins, Problems and Process: International Law and How We Use It (p. 1)
Staying informed on the news of the day, any day, has become unsettling. The world order is in disorder. We are all affected and pay the price one way or another. After WWI – the war that was supposed to end all wars – the League of Nations was formed. The hope and expectations were that as states would be governed by civilized citizens in a new(ish) world order, one that looked beyond the narrow contours of the 1648 Peace of Westphalia, nation-states would accept the notion (reality) that they were part and parcel of a community of states with rights and obligations and a normative structure and institutions to solve differences and disputes in a civilized manner. Well, we all know things did not work out as planned. After World War II, a new model was designed – The United Nations. Hopes and expectations were high. Though many states were reticent to give the extraordinary power of the veto to five states sitting as permanent members on the UN Security Council, they went along. What else could they do? Unsurprisingly, things have not worked out as hoped. Yet, hope remains. It must.
The books reviewed in this part of the series deal with the UN, international conflict and security, public international law, and includes a short treat on political philosophy relevant to international law/relations. The selection is idiosyncratic. My discretionary reading (anything not related to a case or project I am involved in) is capricious, unstructured. Nonetheless, a sliver of reason and rhyme can be found – especially if like me, you are habitually attempting to synthesize ideas, facts, concepts, and knowledge wherever found.
Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes, Jennifer Trahan, Cambridge University Press, 2020, 355 pages
[C]ertain permanent members of the Security Council have no compunction regarding using or threatening to use, their veto, regardless of whether the crimes are characterized as crimes against humanity, war crimes, or genocide.… The veto power, granted by UN Member States in the UN Charter, should not be used in a way that countenances or facilitates the ongoing commission of atrocity crimes, as it has done in both Syria and Darfur, as well as other situations. (p. 342)
The UN Security Council is dysfunctional. It is incapable of meaningfully addressing any serious matter that comes before it. Talking is good, and necessary. But action must follow. As long as the five permanent members (P-5) have the right to veto anything – however consequential to the safety, security, or even survival of large segments of the human race – the Security Council will remain the obstacle, not the solution, in conflict resolution. There may be a way around this – so argues, impressively, New York University Law Clinical Professor Jennifer Trahan in Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes. Not sanguine that anything will change in how the Security Council is structured or how the P-5 wield their veto prerogative, Trahan cogently presents plausible solutions meriting serious consideration.
Chapter 1, The Origin and History of the Veto and Its Use, sets the stage for the chapters that follow. Understanding why and how the veto came about, its omission would have been a deal‑breaker in establishing the UN. A repeat of the US – along with other “great powers/WWII victorious states – abstaining in joining this global organization, as was done with the League of Nations, was to be avoided. The smaller and less powerful states, whose security and stability and survivability are linked to world order events, were under no illusion. By 1945, the writing was on the wall – the great powers, divided into two ideologically different camps with different visions and agendas for the post WWII world order – would constantly be at loggerheads. In less than five months after the signing of the UN Charter on 24 October 1945, Winston Churchill would deliver his famous Iron Curtain speech in Fulton Missouri (17 March 1946), where he noted “From Stettin in the Baltic to Trieste in the Adriatic, an iron curtain has descended across the continent.” The Cold War is accepted to have started a year later (1947), though no keen observer of world affairs would have missed the bipolarity in which the world was well into. So yes, with eyes wide open and with the inevitability of a Security Council designed with all the trappings of being stuck in an inescapably intractable quagmire, the UN Charter was signed.
Chapter 2, Acting the face of Atrocity Crimes, deals with two doctrines that emerged in response to the Security Council’s use of veto and as a result facilitating, if you will, ongoing mass atrocity crimes. The first deals with NATO’s response to events in Kosovo in 1999 – which has since been considered as falling under a doctrine of humanitarian intervention. Beyond cavil, it lacked Security Council approval. Found to have been contrary to international law it was nonetheless claimed to have been “legitimate”. (see here, and here). The second is the doctrine of responsibility to protect (R2P), a doctrine that has yet to gain traction as a lawful means of responding, lawfully, to mass atrocities outside of what is narrowly permitted under the UN Charter. On reason advance is the specter of using R2P as a vehicle for regime change. (see here)
Chapter 3, Initiatives to Voluntary Restrain Veto Use in the Face of Atrocity Crimes, is about a call for measured initiatives on refraining the use of the veto. The P-5, however, remains unresponsive, using or threatening the use their veto prerogative. This reflexive and predictable response by the P-5 dates back to when the UN was established. Quixotic to think that the P-5 will voluntarily refrain in their use of the veto. The status quo of inaction and blockage by veto will, regrettably, hold.
Chapter 4, Questioning the Legality of Veto Use in the Face of Genocide, Crimes against Humanity, and/or War Crimes, advances three persuasive legal arguments that there are legal constraints on using the veto in the face of ongoing mass atrocities. Trahan argues: (a) the veto is subordinate to jus cogens norms; (b) the veto must be considered in the context of the UN Charter which calls upon the Security Council to act in accordance with the UN’s “Purposes and Principles”; and (c) treaty obligations, such as the Genocide Convention and 1949 Geneva Conventions, bind each P-5 state. Trahan suggests that the General Assembly could ask for an opinion from the International Court of Justice, or in the alternative, pass a resolution “confirming its understanding of such hard law obligations regarding veto use while genocide, crimes against humanity, and/or war crimes are occurring, or are at serious risk of occurring.”
Chapter 5, Case Studies, presents two studies where the veto was used and threatened to be used in the face of mass atrocities indisputably occurring. Compellingly, this chapter drives the point home – something needs to change with the use of the veto if the Security Council is to meet its obligations and be in sync with, and act pursuant to, the letter and spirit of the UN Charter.
Trahan provokes thoughts and possibilities. Her legal arguments are sound. Her bold but idealistic solutions, less so. The P-5 will continue to interpret their obligations under the Charter and apply the veto as is their right, consistent with their individual interests. As for the General Assembly, there are no indicators as of late that somehow it will muster the courage and intestinal fortitude to assertively take on the P-5. Individual member states also have narrow interests and depending on the economic, political, geographical, ideological spectrum a state is in, ineluctably its interests will coincide with the interests of one of the P-5 states.
Notwithstanding my reservations on Trahan’s prescriptions – imaginative yet seemingly improbable – Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes is a laudable contribution to the discussion on how to break the impasse of the P-5’s irresponsible use and abuse their unchecked veto prerogative in order for the Security Council act responsibly.
LAW, WAR AND THE PENUMBRA OF UNCERTAINTY: Legal Cultures, Extra-Legal Reasoning and the Use of Force, Sam Selvadurai, Cambridge University Press, 2022, 358 pages
Law is always framed or applied in human language, and language has inherently limited precision. Law often deals with complex, multidimensional and fuzzy rather than bivalent activities. Law is always socially constructed, emerging not only from pure doctrinal study but also from the complex, conflicting interactions of human beings with different understandings, beliefs, preferences and value systems. So the vagueness and uncertainty caused by paradigms, fuzzy logic and supervaluationism will apply in at least some cases. In fact, such vagueness and uncertainty are often necessary features of law, enabling it to flex and adapt to the complexities of the activities it seeks to regulate and the communities that seek to apply it. What law requires may sometimes display only degrees of truth/falsity – it is specifically indeterminate. (pp. 33-34)
You are called upon as legal counsel to provide a legal opinion on the legality of resorting to military force in a particular situation – a situation which is organic, in flux – and the facts as told to you are of a quality yet to be fully determined, at least to your satisfaction. Time is somewhat of the essence. It is uncertain as to whether additional reliable facts will be forthcoming expeditiously. Your remit lies in the realm of the jus ad bellum – a field of international law you are familiar with, yet due to the nature of the circumstances, you are instructed to provide a reasoned opinioned that will withstand exceptional scrutiny both at home and abroad. Due diligence is expected of you. You will need to provide detailed supporting authority that irrefutably supports your legal opinion. And if that were not enough, justification will need to be provided as to what and how the factual and legal issues were analyzed and synthesized. Off you go. You survey the applicable law, treatises, commentaries, and scholarly literature. You look for past examples that fit the factual matrix at your disposal. Maybe you brainstorm with colleagues whose legal acumen you respect and opinions you value. Well, before you think you know all you need to know to draft your opinion – subject to any new facts which may make a difference were they also available, in which case you might need to recalibrate your opinion – you would be well advised and served to consult, carefully, Sam Selvadurai’s interdisciplinary and seminal book, LAW, WAR AND THE PENUMBRA OF UNCERTAINTY: Legal Cultures, Extra-Legal Reasoning and the Use of Force.
Seminal in the field of the jus ad bellum, this is a must read. I don’t say this lightly. It is dense with unique and innovative analyses of decision-making cultures on the use of armed force. It will provide you with useful insight and innovative ways of re-thinking and re-interpreting and re-assessing both facts and law, giving you better appreciation of reasoning through uncertainty (as well as approaches to your own method(s) of reasoning) – the bane of any lawyer called upon to instruct on the legality of using armed force.
Selvadurai sails in uncharted waters in search of how decision-makers approach their task in reaching informed answers to complex scenarios – where uncertainty in where the contours of law lie, where decisions need to account for untold known and unknown variables, and where there often is pressure to provide a legal opinion to fit a predestined or preferred decision – are as real as they are consequential. Too weighty to unpack is a modest space such as this post, I will just hit the highlights of his findings.
First, the jus ad bellum heavily relies on authoritative examples of the lawful and unlawful use of military force. Valuable as it may be in “supervaluationism” (lawfulness determined by multiple overlapping tests), the law often operates according to “fuzzy” (allowing for multiple truths) and not “bivalent” (either true or false) logic, thus facilitating a fuzzy “penumbra of uncertainty”. This in turn leads to contestation about the lawfulness of an action. Second, uncertainty in the law is exacerbated by uncertainty about the known facts and unknown future facts. Third, the jus ad bellum is “partially autonomous”. Uncertainly and competing interpretations of the law, inspiring “lawyers to apply consistent, mutually reinforcing ‘extra-legal’ political and ideological viewpoints and intuitions”, such as strategy and ethics in selecting between competing interpretations of law and facts, reaching conflicting legal conclusions. Fourth, lawyers will conform to competing interpretive and strategic cultures, to various degrees, concerning the jus ad bellum.
Innovatively, to reach his Ithaka, as it were, Selvadurai synthesizes from different disciplines in his search, as he puts it, for “new ways of understanding and dealing with uncertainty, controversy, and the role of extra-legal intuitions in hard cases engaging international law governing resort to military force.” He does this not by trying to “identify what the law is or the correct methods of framing and assessing legal argument,” but by exploring how legal reasoning works in the jus ad bellum field by resorting to philosophical concepts of knowledge “to explain what it is about the jus as bellum that enables uncertainty and disagreement.”
Selvadurai arrives at his findings and conclusions, having conducted an exhaustive examination of scholarly writings on the law that governs the resort to force, the different legal theories on legal interpretation, and theories on international affairs and ethics. His aim was to discern contested principles of critical sources related to legal, factual, and ethical analysis and justification for resort to force, potentially used as legal and extra-legal intuitions to support competing approaches to the jus ad bellum. Aside from systematically analyzing scholarly writings and government statements in justifying the resort to force, Selvadurai did a systematic textual analysis of judgments by the International Court of Justice, and, perhaps most useful, he conducted structured interviews and online surveys of thirty-one UK-based international lawyers experienced in the jus ad bellum field.
I would have preferred a wider and richer pool of international lawyers from outside the UK. Though one may argue that his findings and conclusions have a whiff of parochialism, they are insightful and compelling. There is much more to THE PENUMBRA OF UNCERTAINTY: Legal Cultures, Extra-Legal Reasoning and the Use of Force. Anyone interested in decision-making in the jus ad bellum field would profit from reading it. I have.
INTERNATIONAL CONFLICT AND SECURITY LAW, Laurie R. Blank, Edward Elgar, 2023, 304 pages
Security is an essential prerequisite to peace, prosperity and the growth and development of societies around the world. Security also is no longer a national, physical, or even territorial issue, but relies on and affected by actions across the globe, in the digital arena, and in outer space. International law is an equally essential tool for maintaining, protecting, and restoring security in the face of chaos, threats, and conflict within, between and among States, and non-State groups. (pp. 8-9)
ADVANCE INTRODUCTION TO INTERNATIONAL CONFLICT AND SECURITY LAW (second edition), Nigel D. White, Edward Elgar, 2023, 174 pages
Intuitively, peace is the antithesis of war. Peace should be the normal human condition and war the exception if our basic premise about the survival instinct remains true. However, by the nineteenth century a condition of war was seen as a valid alternative (not an exception) to peace. International law reflected and, indeed, secured this position containing separate regimes for the law of peace governing peaceful relations between states, and the law of war governing the relations between warring states as well as between warring and neutral states. (p.2)
RETHINKING CONFLICT RESOLUTION AND MANAGEMENT, I. William Zartman and Siniša Vuković, Edward Elgar, 2023, 186 pages
It is not just the Russian War of Aggression of 2020, prepared since the beginning of the previous decade, that marked the end of the old World Order. The war came as a coup de grace or de mort to a system of relational, international, and normative order that had been falling apart at least since the beginning of the millennium. New challenges of this period created a need for rethinking about how to get through until a new system could be established; the War of Aggression thrust on the world the need to crate a new system, not just get around the process of collapsing, to do major alterations while staying open for business under remodeling. Both foci are necessary, and the shock of the war and destruction of the UN system should not remove attention to all the other little pieces of disorder that need attention. (pp. 1-2)
All three books, to various degrees and detail, deal with the general phases of conflict: conflict-prevention, the resort to force, armed conflict, and post-conflict. One cannot think in the international sphere of conflict and security law in the absence of conflict resolution and management. If Emery University Law School Clinical Professor of Law Laurie R. Blank is correct (and she is) in her distillation that “security is an absence of conflict, and conflict is the result of or response to threats to security” – to which a rich body of international law informs states, state actors, and non-state actors what is lawful verses unlawful conduct, resolving and managing conflict and restoring peace and security – then the periods before, during, and after the war all form part of the equation. Inextricably, they overlap and are part and parcel. Hence why these books are discussed together.
As I write, discussions are being held concerning the two most observable conflicts – the Russo-Ukrainian war and the conflict between Israel and Hamas in Gaza. The US and European states providing military assistance to Ukraine are reaching donor-fatigue. Perceiving that a virtual stalemate is the inevitable result in the Russo-Ukrainian war, and with Russia’s overwhelmingly asymmetrical resources and capacity to wait it out until Ukraine’s supply of weapons makes it unfeasible for it to regain its occupied territory, it will need to seek a peace agreement. Some see this as an inevitability, distasteful as it may seem. As for Gaza, the discussions revolve on how to manage the conflict so that it comes to a quick resolution, and of the thorny issue of the day after and beyond.
Of the first two books, INTERNATIONAL CONFLICT AND SECURITY LAW is an excellent primer for anyone venturing into this area for the first time. Blank meticulously walks the reader through the four general stages of conflict and security, with copious examples and useful explanations. University of Nottingham Public International Law Professor Nigel D. White’s ADVANCE INTRODUCTION TO INTERNATIONAL CONFLICT AND SECURITY LAW is cogent and to the point. His book is a useful go-to source, particularly for those who want a quick answer (with accompanied follow-up source material) to a discrete issue without having to plow through comprehensive or unwieldy treatises and scholarly literature.
Professor I. William Zartman (emeritus) and Senior Lecturer Siniša Vuković of John Hopkins University School of Advanced International Studies invite the reader in RETHINKING CONFLICT RESOLUTION AND MANAGEMENT to do just that – to rethink how conflicts can be managed and resolved. They see the word order in disarray – “weak on norms, institutions, and structures that leave conflict management walking on peddles.” Strong states do as they please as they pursue their narrow interests, installing “an order of the jungle”, while weaker states are indifferent to the welfare of their population, “in favor of minority governance, practicing greed that nurtures grievance and causes conflict, and then face rebellion against neglect.”
Zartman and Vuković postulate that there is a normative collapse due to “the fall of the wall of inhibition or unthinkability.” One of the many examples they point to is Russia’s attack on Ukraine: “A spontaneous comment at the shock of Ukraine was, ‘We just don’t do that anymore,’ but we saw it done.” With normlessness occurring at the international as well as the national level, the need for a rethink is imperative – a rethink on conflict, peacemaking, ripeness (the search for mutually enticing opportunities), mediation, prevention of escalation, governance (including protest and revolt), inclusion and representation, hybrid conflicts, and of people. Their vision on conflict management is wholistic, forward-thinking, and practical.
All three books provide insightful and succinct guidance to the germane principles of international law on regulating the use of armed force, armed conflict, pre-to-post-conflict management and resolution, and peacetime security. Whether you are new to this area of international law, or thinking of refreshing what you know or think you know, or a graduate student, or searching for useful teaching tools for your classes in this area, look no further.
PUBLIC INTERNATIONAL LAW: Contemporary Principles, Second Edition, Gideon Boas, Edward Elgar, 2023, 395 pages
Scholars at various periods have questioned the existence of international law at all, postulating that what we call international law is really no more than a system of international relations, lacking core aspects of a legal system as such. (p. 23)
BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 9th Edition, James Crawford, Oxford University Press, 2019, 785 pages
The classification of a system as legal does not predetermine its effectiveness: witness various national legal systems in greater or lesser disarray. The question is whether the rules, traditions and institutions of a given system enjoy at least some salience within the relevant society, meet its social needs, and are applied through techniques and methods recognizably legal – as distinct from mere manifestations of unregulated force. There is no reason to deny to such systems the classification of being legal – recognizing however that this leaves many questions open. (p.11)
I’ve found Gideon Boas’s scholarship concise and practice-oriented, ideal for the busy practitioner. With elegant prose and measured reductionism, the complex and overwhelming become lucidly manageable. In his previous book, co-authored with Pascale Chifflet, International criminal justice received high praises (see here). So, when I saw that he had come out with a new edition of PUBLIC INTERNATIONAL LAW: Contemporary Principles (had not read the first edition), I thought it would be useful to add to my reading list for this series (see Part 1). I am glad I did. Not only was it a nice refresher on public international law, but it was a congenial and effortless read.
Though designed mainly as a teaching tool, this is an excellent first go-to source book for practitioners. Perhaps because Boas is both a practicing barrister and an adjunct professor at La Trobe University, like a good mixologist, he knows what ingredients are essential, and to what amount, in mixing theoretical constructs, legal principles, jurisprudence, scholarly literature of disparate viewpoints, relevant examples, and his own take. In ten well-structured chapters, this well-organized book gives you just about all you need to get you started in learning and researching any of the legal issues that fall under the rubric of public international law.
With its rich source material in footnotes (preferred over endnotes), along with the appropriately short suggested further reading list, and the list of discussion questions at the end of each chapter, PUBLIC INTERNATIONAL LAW: Contemporary Principles is a worthy read for students, academics, practitioners, and for anyone just looking to try to make sense of the applicable law, malleable as it may be, to any of the ongoing conflicts and incidents. For example, one of the many ongoing events that touch on public international law and beg understanding of the law is the situation in the South China Sea. Supposed Chinese “fishing boats” reinforced with steel hauls are ramming into Philippine fishing vessels as China claims virtually the entire South China Sea, building artificial islands on coral reefs and island-rocks, converting them into military installations. While you are unlikely to find the answer, PUBLIC INTERNATIONAL LAW: Contemporary Principles will assuredly guide you in your search.
So enthused was I after reading Boas’s book, I thought I would do a comparative analysis with one of the many authoritative treatises on public international law. I selected BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW, in its ninth edition, updated by the legendary James Crawford, who sadly has recently left us.
What seemed like an interesting and pleasurable avocational venture turned into more of a vocational grind. Undeniably, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW is a magisterial magnum opus. Dense, it is a highly useful treatise if you have the luxury of time and patience and doggedness in pursuit of an answer. I found some chapters to be easier than others, mainly because in some chapters the material was more clearly presented. Part IV, Law of the Sea, is a good example. Despite having a modest understanding of this area of public international law, I found the presentation of the material insufficiently clear and unnecessarily lacking simplicity. Granted, this is a treatise and not an introductory level textbook, but for someone venturing for the first time into public international law, say, an autodidact, I would recommend going first to Boas before tackling Brownlie and his Oxford disciple, Crawford (who’s own magnum opus, The Creation of States in International Law, remains unrivaled).
THE LAW OF PEOPLES with “The Ideal of Public Reason Revisited”, John Rawls, Harvard University Press, 1999, 199 pages
The effect of extending a liberal conception of justice to the Society of Peoples which encompasses many more religious and other comprehensive doctrines than any single people, makes it inevitable that, if member peoples employ public reason in their dealing with another, toleration must follow.… The idea of a reasonably just society of well-ordered peoples will not have an important place in a theory of international politics until such peoples exist and have learned to coordinate the actions of their governments in wider forms of political, economic, and social cooperation. (p. 19)
If the proverb charity begins at home holds true – that before one should look after others, first look after your family – the same can be said that holds true in world affairs. A state needs to first get its house in order if it is to have an impact on the international stage. Part and parcel of international affairs – how states interact with other states, especial on global issues such as security, the environment, transmittable viruses and diseases, terrorism, the space, the high seas, cyber etc. – is domestic affairs at its most fundamental level. Crudely, equal rights and opportunities, diversity and inclusiveness and tolerance for those considered other, respect for the rule of law, and liberal democratic principles in governance are essential in fostering justice at home so a state can pursue and participate in initiatives that affect other states.
Political philosophy tends to offer more questions than solutions, even though philosophers tend to postulate with conviction and certainty; like economists, they are rarely in agreement among themselves. I thought it prudent to add at least one book to the list on political philosophy, hoping it might offer ideas and concepts for synthesis, if possible. Having given up on trying to get through let alone comprehensively grasp John Rawls’ seminal work A THEORY OF JUSTICE, when by chance I came across the more manageable and (what appeared to be) more digestible THE LAW OF PEOPLES with “The Ideal of Public Reason Revisited”, I thought I might be a good fit to my whimsical reading list for this series.
This little gem consists of two parts: a reworking of a 1993 short article, The Law of People, and a 1997 essay, The Idea of Public Reason Revisited. By the “Law of People” Rawls means “a political conception of right and justice that applies to the principles and norms of international law and practice.” As for the idea of public reason, Rawls means “at the deepest level the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another.” To go much further would require going into the weeds, and that would require more space to an already long post. Suffice it to say, big picture wise, THE LAW OF PEOPLES with “The Ideal of Public Reason Revisited” ties in nicely with some of the books reviewed here and in the previous post. You may have to read it a couple of times to get the most of what Rawls has to offer, but the effort is well worth it.
Stay tuned for part four of this series.
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