This panel was convened at 11:00 a.m., Thursday, April 9, by its moderator Tom Farer of the University of Denver's Josef Korbel School of International Studies, who introduced the panelists: Mahnoush Arsanjani of the World Bank Administrative Tribunal; Ian Hurd of Northwestern University; John Mearsheimer of the University of Chicago; and Tom Ruys of Ghent University.*
PERMISSIVE LAW ON THE INTERNATIONAL USE OF FORCE
By Ian Hurd ([dagger])
Does the UN Charter still provide a normative order for the international use of force? The question raises more issues than can possibly be answered--which is a sure sign that it is a good question. Among other things, the question presumes that the use of force has or had a normative order in the first place and that the Charter once did provide it and might still. It also suggests an anxiety that if the Charter's role in the regulation of war has declined, this would be a bad development.
In this short essay I address these very large questions in the briefest of terms: first, I show that the Charter does indeed still provide the crucial framework, normative and legal, for the international regulation for inter-state violence. All international uses of force take place under its light. However, this may mean less than many champions of the international rule of law would like.
My second point is that the Charter's contribution is as much about endorsing international war as it is about restraining it. In providing the authoritative frame within which states conduct their wars, the Charter becomes an instrument which states can use-- indeed do use--in their attempts to legitimize their military operations through law. It authorizes states to engage in war, and defines the circumstances under which they can call it lawful.
Finally, I suggest that this leads to a view of the political contribution of international law that connects law with power--legal power, state power, and political authority- -and which contradicts both the liberal internationalist and realist accounts of legalization in international relations theory.
In sum, the Charter does provide the legal and normative landscape for the international use of force. It does this by constituting self-defense as the sole state- centered legal motive for war, but the effect is to coerce states into explaining their wars in terms of their national security needs. Governments are eager to do this since it reinforces the idea that mass violence in the service of perceived national interests is a normal and necessary feature of international affairs. The Charter constitutes a framework of legal resources which are instrumentally useful for legitimating state decisions, but the use of which is governed by certain legal rules and meanings. Whether this legalization is a normative or political improvement, and in comparison with what alternative, are questions that are left open for debate.
CHARTER AS LEGAL AND NORMATIVE FRAME FOR WAR
The UN Charter remains the preeminent frame for the legal and moral justification of war by governments. It is the standard referent for states and activists seeking to legitimate or delegitimate the choice to use force. Its categories, which are set out in legal terms and binding on all UN members, are the defining features of the modern jus ad bellum. These categories include the "inherent right of self defense" in Article 51, the prohibition on the threat or use of force to resolve international disputes in Article 2(4), and the authority of the UN Security Council to act on behalf of all UN members to take any actions necessary to deal with threats to or breaches of international peace and security (Articles 25, 39, 41, 42). Since 1945 these have been the inescapable terms by which the lawfulness of interstate recourse to force is judged, and together they create a framework in which the use of force by a state is outlawed except as necessary for its individual or collective self-defense. The Security Council is authorized to use force as it sees fit to restore international peace.
These parameters define the framework for the legal use of force. As pieces of law, they are essentially unchallenged in the sense that there is no organized effort to revoke, amend, or replace these rules. While activists and states are mobilized in myriad ways to "reform" the United Nations in any number of dimensions--from enlarging the Security Council and changing its voting rules to enhancing the UN Economic and Social Council, abolishing the UN Trusteeship Council, and establishing early warning or rapid response systems for the UN Secretary-General--no one apparently seeks to change the basic legal arrangements of the Charter around the use of force, at least not formally. The rule that wars of aggression are unlawful is as close as one might find to a universally accepted tenet of international law.
An exception to this generalization might be found in the progress of humanitarian intervention as a recently legitimated motive for cross-border military operations. The prima facie illegality of cross-border force without Council approval is, for many writers, mitigated when humanitarianism is the motive, which might then be construed as an attempt at an informal amendment of the Charter rules on war. (1)
While Charter law against war is widely accepted, this is not the end of the story--it is rather only the beginning. State practice since 1945 shows something more: that states continue to engage in cross-border military operations at a non-trivial rate and they do so under circumstances that implicate these rules.
The fact that war continues despite the Charter rules is frequently used to illustrate the weakness, perhaps even foolishness, of the ambition to regulate war through interstate legal instruments. Thomas Franck famously declared of the ban on war that states had so "violated it, ignored it, run roughshod over it, and explained it away" that "as with Ozymandias, only the words remain." (2) Michael Glennon in 2003 suggested the rules had suffered desuetude and that as a consequence states were released from any legal obligation to comply with them. (3)
However, to dismiss the laws against war in these ways is a mistake. It is wrong to take the continuation of war as evidence that the Charter is being disrespected, because it is wrong to...