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In Defense of the “Conventional Account” of the Jus ad Bellum

  • Tess Bridgeman (a1)
Extract

States sometimes choose to break the law. International lawyers should seek to understand instances of illegality, particularly when they involve the unlawful use of force. But should we also shift our understanding of legality itself in an attempt to bring state conduct within the fold? In particular, what should we make of uses of force that seem to enjoy some degree of international political support while straying from the law governing the resort to force, or the jus ad bellum? Monica Hakimi asks this timely, and indeed timeless, question in her thought-provoking article arguing for a reconceptualization of “The Jus ad Bellum’s Regulatory Form.” Hakimi argues that we must carefully examine state engagement with the UN Security Council, including when it is not authorizing force, to fully understand state behavior. This claim is uncontroversial. However, she also argues that Council activity short of authorizing force can nevertheless establish legality and the Council's “institutional processes can deprive the general standards [that constitute the jus ad bellum] of their legal effect.” The empirical validity and normative desirability of this more provocative claim deserve close interrogation.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Monica Hakimi, The Jus ad Bellum's Regulatory Form, 112 AJIL 151 (2018).

2 Id. at 167.

3 Id. at 155.

4 Id. at 165–66.

5 Id. at 167.

6 Id. at 166.

7 I leave aside the example of the Economic Community of West African States (ECOWAS) except to note that while Hakimi dismisses arguments that the Council legitimized the intervention without altering its legality, she does not explain how the Council “contributed to … the intervention's lawfulness.” Id. at 178. There is a simple explanation: the Council conferred political legitimacy on ECOWAS, but not authority. This is not a “difficulty explaining that dynamic in law,” but a recognition that the Council chose not to authorize force even though it was supportive in other ways.

8 Id. at 169.

9 Id. at 169–70.

10 Id. at 168.

11 Id. at 155.

12 See, e.g., Sean D. Murphy, Principles on International Law 37 (2d ed. 2012); Restatement (Third) of Foreign Relations Law § 203 (Am. Law Inst. 1987).

13 Hakimi, supra note 1, at 186.

14 Id.

15 Id. at 186–87.

16 S.C. Res. 2249 pmbl. (Nov. 20, 2015).

17 Id. at para. 5.

18 Dapo Akande & Marko Milanovic, The Constructive Ambiguity of the Security Council's ISIS Resolution, EJIL:Talk! (Nov. 21, 2015).

19 Hakimi, supra note 1, at 189.

20 Id. at 188–89.

21 UN Security Council Press Release, Statement of Vitaly Churkin, Russian Federation, UN Doc. SC/12132 (Nov. 20, 2015).

22 See Susan Biniaz, Comma but Differentiated Responsibilities: Punctuation and 30 Other Ways Negotiators Have Resolved Issues in the International Climate Change Regime, 6 Mich. J. Envtl. & Admin. L. 37, 39 (2016) (“[C]larity is not always an option, and the alternative to ambiguity may be failure to reach agreement… . [W]here ambiguity is preferable [to no agreement] its use is … ‘constructive.’”).

23 Hakimi, supra note 1, at 182.

24 See Laurie Blank, Syria Strikes: Legitimacy and Lawfulness, Lawfare (Apr. 16, 2018) (arguing that legitimacy must rest on law, “not righteousness” or “the exigencies of a given moment”).

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