'War'? Legal Semantics and the Move to Violence

Mégret, Frédéric

doi:10.1093/ejil/13.2.361

Cited by 55 publications

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“…Labelling coercive action 'aggression' or an 'armed attack' allows supposedly defensive violence in response, thereby legitimating further violence. 183 This has particular resonance in the context of the War on Terror and also has wider implications. The normalisation of the use of military force has laid the ground for a resurgence of its use within the Geo-Political and War on Terror models.…”

Section: Reinterpreting the Right To Self-defencementioning

confidence: 99%

International Law and New Wars

Chinkin

Kaldor

2017

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Article 2 (4) of the United Nations Charter prohibits the threat or use of force in international relations, a prohibition that is accepted as customary international law. 1 However, at the San Francisco Conference (1945) middle-level states were unwilling to give up their 'inherent' right to use force in self-defence. Article 51 of the Charter therefore allows a shortterm limitation 2 to article 2 (4) whereby a state may have recourse to individual or collective self-defence 'if an armed attack occurs. .. until the Security Council has taken measures necessary to maintain international peace and security'. The affirmation of a right to self-defence undermines the absolute nature of the prohibition against unauthorised use of force in article 2 (4). Unsurprisingly, therefore, states have sought to bring almost any unilateral use of force within the legal ambit of selfdefence, so much so that as early as 1970 Professor Franck famously asked: 'Who killed article 2 (4)?' 3 In the twenty-first century, article 2(4) is widely understood as being in a state of 'grave weakness', even 'on the brink of clinical death or in intensive care'. 4 1 In the Nicaragua case neither party challenged the customary international law status of UN Charter, article 2(4); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (Merits) 1986 ICJ Reports 14, judgment of 27 June 1986, para. 188 ('Nicaragua'). For an overview of contemporary international law relating to the use of force see Crawford, James 2012. Brownlie's Principles of Public International Law, Oxford University Press, 8th ed., chapter 33. 2 Jean D'Aspremont notes that UN Charter, article 51 does not derogate from article 2(4) but imposes a temporary limitation upon it; D'Aspremont, Jean 2014. Mapping the Concepts behind the Contemporary Liberalization of the Use of Force in International Law,

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Section: Reinterpreting the Right To Self-defencementioning

confidence: 99%

International Law and New Wars

Chinkin

Kaldor

2017

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“…For the purposes of this article, 'productive power' becomes useful for theorizing legal techniques of power in the practice of global governance. Such legal techniques are not newly identified but rather derived from work done on the 'instrumental' use of law by critical scholars in both IR and IL (Trimble, 1990;Kennedy, 2004;Kinsella, 2005Kinsella, , 2006Mégret, 2002;Scott and Ambler, 2007); with the essential premise of this scholarship being that law has the capacity to propagate political ends through the seeming objectivity of legal methods (Koskenniemi, 1989(Koskenniemi, , 1995(Koskenniemi, , 2004. I argue that IR scholarship would gain considerable insight by bringing these concerns of critical legal scholarship together with Foucauldian governmentality to make more visible the 'techniques of power' resident in the recent propagation of global (judicial) law.…”

Section: Governmentality and 'Techniques Of Power'mentioning

confidence: 99%

‘Global law’ and governmentality: Reconceptualizing the ‘rule of law’ as rule ‘through’ law

Rajkovic

2010

European Journal of International Relations

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This article challenges the optimism common to liberal IR and IL scholarship on the 'rule of law' in global governance. It argues that the concept of the 'rule of law' is often employed with sparse inquiry into the politics of its practical meaning. Specifically, the article focuses on liberal research that advocates the emergence of a 'global' judiciary, and the claim that judicial governance will marginalize state power and authority. Rather than employ a zero-sum conception of power, this article regards a prospective global legal system less as a constraint on state power and more as a rationale for rule 'through' law by vested actors. To make the argument, Michel Foucault's concept of 'governmentality' is combined with Barnett and Duvall's notion of 'productive power' to denote how legal techniques of power are integral to the construction of social 'truth' and consequently the governance of conduct. This is further associated with Koskenniemi's critical scholarship on the power of law's perceived objectivity and universality. In this vein, the article questions how liberal scholars use the American judicial model (the Marbury ideal) to claim that an institutionalization of 'global' judicial authority can deliver the rule of 'no one' in global governance. A governmentality perspective is then applied which suggests that the lack of supreme constitutional rules at the global level makes judicial governance less a check than a means to propagate normative standards conducive to dominant state power.

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“…beschreibt in seinem Moby Dick, wie hier eine, man kann sagen pers¨onliche Beziehung und eine innige, feind-freundschaftliche Bindung zwischen dem J¨ager und seinem Wild eintritt. 173 Therefore M´egret's analysis that to 'speak of war against the background of the 11 September attacks is to engage, analytically speaking, in an eminently Schmittian exercise of enemy designation' 174 is, to speak frankly, wrong; the contrary holds true for values such as humanity and liberal democracy, as they were conjured after 11 September to unite the political community within, encouraged discrimination against the non-valuable Other, while a Schmittian exercise of enemy designation is to prevent the arrogation of superiority by the Self. At least in theory, Schmitt's concept of the political is a remarkable achievement, because friend and enemy are not asymmetrically, but rather symmetrically, opposed.…”

Section: With Schmitt Againstmentioning

confidence: 99%

Interlinking the Domestic with the International: Carl Schmitt on Democracy and International Relations

Burchard¹

2006

Leiden Journal of International Law

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Carl Schmitt's Der Nomos der Erde allows us to rethink his interlinked proposals for the organization of the Weimar Republic, namely his theory of 'democratic dictatorship' and the 'concept of the political'. Connecting the domestic homogeneity of an empowered people with the pluralism of the Westphalian state system, Schmitt seeks to humanize war; he objects to the renaissance of the 'just war' tradition, which is premised on a discriminating concept of war. Schmitt's objections are valid today, yet their Eurocentric foundations are also partially outdated. We are thus to argue with Schmitt against Schmitt to reflect on possibilities for the humanization of war.

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'War'? Legal Semantics and the Move to Violence

Cited by 55 publications

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International Law and New Wars

International Law and New Wars

‘Global law’ and governmentality: Reconceptualizing the ‘rule of law’ as rule ‘through’ law

Interlinking the Domestic with the International: Carl Schmitt on Democracy and International Relations

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