The permissive power of the ban on war

Abstract

The ban on inter-state war in the UN Charter is widely identified as central to the modern international order-Michael Byers calls it 'one of the twentieth century's greatest achievements'. Even if it is only imperfectly observed, it is often seen as a constraint on state autonomy and an improvement on the pre-legal, unregulated world before 1945. In response to this conventional view, this article shows that the laws on war in the Charter are better seen as permissive rather than constraining. I make two points. First, by creating a legal category around 'self-defence', the laws on war authorise, and thus legitimate, wars that are motivated by the security needs of the state, while forbidding other motives for wars. Second, state practice since 1945 has expanded the scope of this authorisation, extending it in both time and space beyond the black-letter text of the Charter. The permissive effect of law on war has therefore been getting larger. These two effects suggest that international law is a resource that increases state power, at least for powerful states, and this relation between international law and power politics is missed by both realists and liberal internationalists. KeywordsSelf-defence; International Law; International Security; Laws of War; Legal Justification He who breaks the law has gone to war with the community; the community goes to war with him. 1In the standard view of international law, the power of law lies in its ability to differentiate between lawful and unlawful state behaviour and to encourage the former by making the latter more expensive. However this model fails in relation to the laws that ban inter-state war, and it fails for reasons that are important for scholarship on the relation between international law and politics. This article makes two points: that the laws on war are permissive rather than constraining and that the scope of this permission has expanded since 1945 under the influence of state practice. Contrary to the conventional view of the ban on war, raisons d'état are not supplanted by legalism. Legalisation has instead created a legalised path for war through the concept of self-defence. This amounts to a permissive authorisation for war that magnifies some aspects of state power, with a scope that has been expanding since 1945.The ban of war is widely identified as central to the modern international order -Michael Byers calls it 'one of the twentieth century's greatest achievements' -and it is often used as evidence of progress

Legitimacy in the ‘secular church’ of the United Nations

“…Indeed, the management of violence is a key function of political orders delimiting illegitimate and legitimate forms of violence. 46 In this regard, the Preamble and the Charter constitute sources of substantial and procedural legitimacy concepts. However, it is the conflictual arena between universal aspirations and the preservation of legitimate sovereignty, which embeds those concepts of legitimacy.…”

Changes in the law of self-defence? Drones, imminence, and international norm dynamics

“…89 As Finnemore put it, 90 when it comes to force, 'rules (…) are strongly if not entirely shaped by the actions of powerful states' that have the ability to use it, a point recently supported by Hurd's comments that the evolution of international norms generally follows the interests of great powers. 91 There is no doubt that the US is well equipped to successfully contest existing meaning-in-use, and to redefine the meaning of the concepts and categories through which international practice is interpreted. During the last sixty years, the US has been extremely effective in shaping the fundamental norms and institutions of the liberal international order.…”

The transformation of targeted killing and international order

“…Focusing on the nexus between international order and violence, we conceive the maintenance and transformation of an international order as a triangular process (see Figure 1 ). The institutional dimension of an international order contains ideas, norms, and rules that prohibit and allow certain types of violence; that is, the institutional dimension manages violence by delimiting legitimate and illegitimate types (Hurd, 2017a ). The use of violence may contribute not only to the maintenance of an international order, but also to its transformation.…”

“…10 As Figure 1 illustrates, discursive processes operate in two directions. First, agents argue over the extent to which a potential or actual use of violence is in line with the existing principles of an order (Hurd, 2017a ; Morrow, 2014 , p. 32). In other terms, they legitimize or delegitimize certain forms and instances of violence.…”

“…Fukuyama, 2014 , p. 583; Kalyvas, Shapiro, & Masoud, 2008 , p. 1; North, Wallis, & Weingast, 2009 , pp. 13–18), the management of violence is a key function of political orders as it delimits types of violence that violate or reinforce the principles of an order, that is, illegitimate and legitimate forms of violence (Hurd, 2017a ). So violence contributes to the maintenance of an international order, yet, at the same time, it also leads to its transformation.…”