The Law-Creating Effects of Informal Regulation?

Does informal regulation have law-creating effects, and if so, is that a good thing? I submit that informal regulation does not, and should not, alter the legality of a particular use of force. It certainly boosts the legitimacy of a military intervention, yet legitimacy and legality are two separate concepts and should not be conflated. Hakimi is not very clear on the question of the extent to which informal regulation affects the substance of the law: On the one hand, she insists that informal regulation “does not reflect and is not meant to affect the black-letter doctrine,” but elsewhere, she writes that “[t]he informal regulation is an example of it affecting the law's content without clearly satisfying any formal criteria of law.”Footnote ² These seemingly contradictory statements raise important theoretical questions. I am in full agreement with Hakimi's point about the legitimacy-conferring effects of informal regulation: Yes, a UN Security Council (UNSC) Resolution condoning a particular intervention after the fact does bolster the operation's legitimacy. Yet I do not see why one has to go one step further and call such an intervention lawful, when it is patently at odds with black letter international law. While such a breach of the law may eventually trigger a transformation of the rule in question, it is critical to look at the fine print of delegates’ responses to the intervention in order to distinguish breaches of the law that have law-creating effects from those that do not. A state's insistence on the sui generis nature of a given intervention or its appeal to mitigating moral or political circumstances does not change the substance of the law.

Take, for instance, the UNSC's response to the Economic Community of West African States’ (ECOWAS) 2017 prodemocratic intervention in The Gambia, a classic case of informal regulation. In late 2016, the people of The Gambia voted the country's authoritarian leader, President Yahya Jammeh, out of power. However, Jammeh refused to transfer power to his legitimate successor, Adama Barrow. The African Union Peace and Security Council reacted by threatening to take all necessary measures to ensure Jammeh would give up power,Footnote ³ and the ECOWAS Authority of Heads of State and Government did the same.Footnote ⁴ The UNSC later commended ECOWAS's position in Resolution 2337,Footnote ⁵ even though the threat of force was illegal. On January 19, Senegalese forces entered The Gambia and shortly thereafter Jammeh agreed to step down. While Resolution 2337 expressed support for ECOWAS's efforts, it did not authorize the use of force. In UN terminology, the clause “all necessary means” constitutes a mandate for military intervention, yet Resolution 2337 does not use this phrase. Instead, it welcomes ECOWAS's commitment to ensure, “by political means first, the respect of the will of the people of The Gambia.”Footnote ⁶

In order to understand what the UNSC meant by this opaque phrase, it is important to look at the drafting history of the resolution and subsequent explanations by UNSC members who voted on the resolution. Apparently, the original draft, tabled by Senegal, contained the phrase “any necessary means” but the clause was later deleted after some UNSC members objected to it.Footnote ⁷ Russia, in particular, was apparently uneasy with the phrase.Footnote ⁸ The fact that the resolution does not refer to Chapter VII of the UN Charter also underlines that it was not meant to be read as an authorization to use military force, as do the statements made by UNSC members after the adoption of the resolution. Uruguay, for instance, emphasized that UNSC approval for enforcement action by regional organizations ought to be “express, affirmative and prior” and that nothing in the resolution “should be interpreted as express authorization of the use of force.”Footnote ⁹ Bolivia echoed this view, stressing that Resolution 2237 “cannot and should not be interpreted to represent Security Council support for or endorsement of the use of force.”Footnote ¹⁰ Egypt in turn explained that

The operation thus lacked “input legitimacy” in that ECOWAS did not obtain an authorization from the UNSC to use “all necessary means” to enforce the results of the Gambian elections before ECOWAS used force. Yet the ECOWAS intervention certainly enjoyed “output legitimacy” because it ensured respect for democracy and the rule of law in The Gambia.Footnote ¹²

Legality vs. Legitimacy

Yet even though that intervention enjoyed broad output legitimacy, it remained illegal nonetheless. This brings me to my first theoretical point, namely the distinction between legality and legitimacy, which the idea of informal regulation obfuscates. Yes, international law is a dynamic social process and not a static set of rules, and ideally, legitimacy and legality are congruent. If they are not, contradictions between the law as it stands and the law as it ought to be in the eyes of its addressees provide an impetus for legal change. These evolutionary processes present a challenge for the rule of law: even though the rule of law implies a certain presumption in favor of stability and constancy over time—otherwise the law could not discharge its function of stabilizing normative expectations—this does not mean that the law can afford to stand still. On the contrary, international law must reconcile the conflicting demands of stability and change, predictability and adaptability. If the gap between the law as it stands and the law as it ought to be from the point of view of its addressees becomes too large, this creates pressure on the legal system to adapt itself in order to close (or at least reduce) the gap between legality and legitimacy. I thus agree with Hakimi that the jus ad bellum needs to be responsive to its political environment, and that the informal regulation is one way to deal with a situation in which a discrepancy arises between black letter international law on the one hand and political exigencies on the other.

However, acknowledging the need for responsiveness does not require us to give up the fundamental distinction between law and nonlaw, and to blur the lines between legitimacy and legality. While international law is permanently irritated by influences from the social, economic, and political spheres, these external influences are filtered by and through the legal system, which has its own rules for determining which types of external irritation will affect its substance and which ones do not. It is widely understood that a UNSC resolution can only be seen as authorizing military intervention if it contains a specific kind of language, such as the authorization of “all necessary means.” Thus, while international law, including the rules governing the use of force, must be receptive to political influences, the legal system has its own internal mechanisms for conferring legality on a particular operation. A UNSC resolution welcoming, condoning, etc. an otherwise illegal intervention after the fact and not authorizing all necessary means does not confer legality on this intervention, if those states who voted on the resolution explicitly affirm that it should not be read as an authorization of the use of force, as they did in the case of The Gambia.

Therefore, ECOWAS’ intervention in The Gambia did not give rise to a right to prodemocratic intervention by (sub)regional organizations acting without a UNSC mandate. Instead of arguing, as Hakimi does, that an intervention condoned by the UNSC should be considered lawful, I am much more sympathetic to the “Kosovo scenario,” according to which an intervention may be “illegal yet legitimate.” This approach upholds a clear distinction between positive international law on the one hand, and moral or political rationales for the use of force on the other. What is wrong with accepting that certain actions are not covered by the jus ad bellum in its contemporary form but may nonetheless be considered legitimate because they give effect to important values—in this case, the Gambian people's rights to democracy and self-determination, which were threatened by Jammeh's refusal to relinquish power? I do not think that an illegal operation becomes lawful due to the mere fact that it was deliberated at the UNSC and a majority of states accepted the operation as legitimate. It may still be the case that they considered it to be illegal yet refrained from condemning it because of extenuating circumstances.

In this context, it is of critical importance to study the details of the debate. An illegal yet legitimate use of force will affect black letter law only if states articulate a legal conviction to that effect. When studying states’ responses to particular interventions, we must fine-tune our focus to distinguish strictly legal from moral or political arguments. As Olivier Corten points out in an insightful piece about methodological controversies surrounding the interpretation of the jus ad bellum, “legality and legitimacy must be conceptually distinguished.”Footnote ¹³ Referencing the International Court of Justice's Nicaragua decision, Corten maintains that “[i]n order to transform fact into law, the legal position of states is of fundamental importance. For every state declaration, therefore, it is necessary to take great care to distinguish political or moral elements from the strictly legal ones.”Footnote ¹⁴ If a violation of the rules governing the use of force is thus accompanied by a widely shared opinio juris that the intervention was permitted by law, this will trigger a transformation of the jus ad bellum. An intervention will have no such law-creating effects, however, when states merely adduce political or moral arguments to justify their conduct—as the majority did, for instance, during the Kosovo intervention. As Niklas Luhmann argues, “[T]here exists the core of legally valid action which changes the legal position, engenders legal consequences, and thereby makes possible new normative expectations which would not have acquired a legal quality without this action of engendering. The legal system itself determines what kind of events have this effect.”Footnote ¹⁵

Yet Hakimi begs to differ. She argues:

I agree with Hakimi that it is imperative to look at the arguments states used to justify or oppose the intervention at the Council. But Hakimi is suggesting that the indicators used thus far for assessing the lawfulness of an intervention are obsolete. It is not for legal scholars, however, to decide that the legal system's filters for conferring legality on a particular operation ought to be changed—this would have to be done by states themselves.

Hakimi's proposition to treat legality as a “spectrum” rather than a dichotomy also warrants examination. As Prosper Weil noted decades ago, “A normativity subject to unlimited gradation is one doomed to flabbiness, one that in the end will be reduced to a convenient term of art.”Footnote ¹⁷ This does not mean that the debate about a particular use of force must end with a statement of its illegality. Of course, nonlegal values equally factor into the overall normative assessment of an intervention. Yet again, this should not lead us to diluting the fundamental distinction between law and nonlaw. True, in the customary process this distinction sometimes gets blurred when some, but not all, of the members of the interpretive community accept a particular breach of the law as giving rise to a new rule. In a situation in which a unified opinio juris has yet to emerge, the distinction between law and nonlaw, between lex lata and de lege ferenda, becomes difficult to uphold. In the customary process, legal certainty will thus temporarily be sacrificed for the sake of adapting the law to changing political circumstances. However, even in this grey area of legality, the legal system still offers intersubjective criteria for determining the law-generating effects of noncompliance, namely the kinds of arguments put forward by those carrying out and commenting on a specific use of force. Only legal arguments contribute to the formation of opinio juris and thus a consolidation of a nascent legal rule. While states justifying, or commenting on, a particular use of force tend to put forward a variety of (legal and nonlegal) arguments and often adopt a strategy of deliberate ambiguity, acknowledging this ambiguity should not colour our assessment of the content of the law. I therefore agree with Weil that “[i]t is one thing for the sociologist to note down and allow for the infinite gradations of social phenomena. It is quite another thing for his example to be followed by the man of law, to whom a simplifying rigor is essential.”Footnote ¹⁸

The Perils of Particularism

A final point worth noting is the tension between the particularistic nature of informal regulation and the maxim of treating like cases alike. Legal theorists of all stripes have emphasized consistency (which others refer to using terms such as “integrity” or “coherence”) in the application of the law as a fundamental precept of the rule of law.Footnote ¹⁹ Hakimi, by contrast, embraces the particularistic nature of informal regulation, which she sees as a natural consequence of states’ preferences being “shifty” and “contingent,” which means that state practice in this area is “all over the map.” While this may be descriptively accurate, the conclusion Hakimi draws is normatively problematic: Just because political preferences are shifting, contingent, often selfish, and frequently myopic, this does not mean that the law should exhibit the same flaws. “Legal order from social noise!” Gunter Teubner posits.Footnote ²⁰ By abandoning the maxims of consistency, of treating like cases alike, we would essentially be replicating the social noise in the legal sphere. Bringing the messiness and contingency of the political world into the legal system would contradict the very purpose of international law, which namely is to guarantee a modicum of stability and predictability in an otherwise very unpredictable world. This function of the law would be undermined if facts were to be transformed into law without any filter. To be clear, Hakimi does not argue that there should be no filter at all, yet she does imply that the existing filters are inadequate, and that other criteria need to be taken into account. If she is correct, and if the status quo is normatively undesirable, states may change that status quo, but only by specifying which criteria may contribute to the creation of legal rules, and by doing so explicitly.