Symposium: Kanwar Reply to Murphy

[Vik Kanwar is a JSD candidate at NYU, a Westerfield Fellow at Loyola New Orleans College of Law and a contributor to the Opinio Juris On-line Symposium]



My sincere thanks to Professor Sean D. Murphy for his careful reading of my paper, for his clear exposition of the challenging context in which it is written, and for confirming in my mind the need for further (and more critical) study on this topic. His comments are especially helpful in separating what might be valuable and worth retaining from what might be either misleading or misconceived. I must also thank the organizers of the Opinio Juris Symposium— particularly Professors Peggy McGuiness and Chris Borgen— for the opportunity to receive these comments in this energetic and increasingly influential forum.



I appreciate both his notes on the finer points of law and the broader brush of policy (his closing suggestion that “wrestle more deeply with problems attendant to this approach”). To better reply to Prof. Murphy’s comments, however, I must begin by (1) explaining the genesis of this project, before proceeding to (2) potential disagreements on law and fact, and (3) his normative challenges to the proposal that the UNSC should pursue “lateral” rather than “reactive” strategies.



Background



The initial research for this paper was completed while I was working at the Center on International Cooperation (CIC) in the Fall of 2005. As the lone lawyer on a policy project entitled “Strengthening Multilateral Approaches to Nuclear and Biological Weapons,” I will admit that the idea that international norms and practices should be developed at a pace “ahead of the non-proliferation curve” began as a background assumption rather than as a legal conclusion. In this light, readers are entitled to be skeptical of the convenient synergy between my particular legal analysis and a broader policy agenda. If academic lawyers set out to perfect a kingdom of means, policy analysts are focused on the attainment of desirable ends through imperfect means, and any collaboration between these disciplines runs the risk of blurring the complex distinctions between different kinds of legitimacy and capacity (e.g. the Security Council “should because it can”). After leaving the project for academia, however, this material sat on the shelf, and I have approached it carefully for two reasons: (1) In light of the above concerns, I needed some critical distance (perhaps even self-critical, in the mode of one of my longtime mentors, David Kennedy). More pragmatically, (2) since the initial research took place in 2005 before the referral of either North Korea or Iran to the Security Council, each SC Resolution has necessitated my removing a section of predictive analysis (sometimes with satisfaction, sometimes with disappointment), and adding to my descriptive account. (As Prof. Murphy notes, I will soon have to take account of Resolution 1747 of Mar. 24, 2007) as well).



At present, there are two versions of this paper: (1) the 30-page “clean draft” (we can call it “LLR1”) is a thumbnail of the policy research and legal analysis from 2005-2006, which has remained relatively untouched since then. This is the one I am presenting to this Symposium and commented on by Prof. Murphy. This version is intentionally skeletal, and though I mention critical perspectives, they are not integrated, but only represented as “balance sheets” of competing values. (2) I have also written a more theoretical 90-page version (“LLR2”) in which I start to develop the critical and theoretical aspects of the paper, and take up more directly some of Prof. Murphy’s concerns. though it has less critical bite and relatively unrevised my decision to present the shorter version, Because of its brevity and adaptability version seems best to revise into a scholarly article and to respect the limits on size of submissions for this Symposium.; this is the version reader should read to follow the pagination of points made by Professor Murphy. I have also posted the longer version at SSRN to amplify some of the points I hope to make eventually, and it is possible that some of the ways I develop these ideas address some of Professor Murphy’s suggestions.



On the finer points (Questions on Legal Characterization):

• In light of Security Council Resolution 687 (Iraq 1991), how can I claim Chapter VII sanctions have never been applied to a non-proliferation crisis (p. 21)? I will concede on this point for a couple of reasons. First, the argument I should have made there was not about Chapter VII, but the application of the “peace and security” mandate to enforce pre-existing treaty obligations of a particular proliferant. Secondly, in light of recent resolutions, neither claim is really sustainable anymore. Moreover, both at the time I wrote LLR1 and in LLR2, I have tended to view the 687 regime as sui generis, but for different reasons. My previous view was that 687 simply imposed a thoroughly traditional disarmament of conventional weapons on a defeated state in an armed conflict, and though it represented a significant stride in the “threat to peace and security” by WMDs, peace and security in “the area” (the region of the Middle East) and did not define proliferation in itself as such a threat. My current view is that an analysis of 687 is absolutely crucial to the study I am undertaking, but precisely because of its unusual structural features: (1) As a “mixed” resolution, adopted under Chapter VII but aimed at the resolution of disputes, including “legal disputes” (others would say it is yet another sub-category of the erosion of the distinction between VI and VII); (2) As a peculiar instance of “law-making,” creating new legal obligations on a particular state by its standing authority (and delegating these to IAEA and USCOM). These points are made briefly but clearly by Jose Alvarez in his new book International Organizations as Law-makers (OUP 2006) at pp. 420-21. I haven’t taken up a case study yet, but I think do think the lessons of 687 deserves attention here.






• How can I characterize Chapter VI of the Charter as containing provisions on of “censure” or “provisional measures (or any collective security aspects), or economic sanctions and the use of force are the province of Chapter VII (p. 20)? When I was setting up the “escalation” model, it was not meant to be a mirror image of the Charter, but the rougher use of “Chapter VI-type” and “Chapter VII-type” language in the narrative of escalation, and these aspects seemed to enter that narrative in an order that did not map onto the Charter. I could make this clearer, though I might have abandoned it altogether in the later draft. In a related point, hybridization of VI and VII is not unusual in practice. Often the SC will no longer identify what Chapter they are acting under in the text of a resolution. This practice (studied ambiguity?) cuts in two ways: (1) a continuing erosion between the two Chapters, but still (2) the continuing performative power of invoking “Chapter VII” for the purposes of an escalation narrative.






• Why do I say Security Council as having “exclusive” powers (as opposed to “primary responsibility”) in determining violations of international peace and security (p. 4)? I concede that this difference in language is important, since “exclusive” leaves out both the GA and states themselves, two controversies I do not wish to take part in. I do wish to go further, however, and say in addition to it being the SC’s “primary responsibility,” it is also the “core mandate.”






• Why do I say that legal disputes over the meaning of the U.N. Charter “should generally” be referred to the International Court of Justice (p. 13), “non-adjudicatory dispute resolution is (and should be) the far more dominant approach”?” I am not sure if this is another disagreement about wording, or the surface of a more substantive difference. When I say these disputes should “generally” be referred by the parties to the International Court of Justice, I am not concerned with the desirability of a “dominant” approach but the “authoritative” approach. This statement arises as a corollary to the Council may interpret the meaning of “dispute” under Chapter VI, which draws a line between its own competence in dispute settlement “situations” and that of the ICJ, and is intended as a paraphrase of Article 36(3) under Chapter VI: “In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.” However, even if I were to change “generally” to “as a general rule” I suspect what accompanies this particular comment is Prof. Murphy’s own normative vision of dispute resolution, which extends to “legal disputes” and even “legal disputes over the meaning of the U.N. Charter.” I would go as far as to say the canons of treaty interpretation or even arbitration agreements have their place, and this probably does dominate practice interpretation of terms, and obligations. In my view, however, disputes over the meaning of the Charter are directed to the ICJ’s competence, not least of all because the Charter must be interpreted not simply as an ordinary treaty, but also as general international law.

The Broader Brush (Objections to Lateral/Legislative Strategies):



Professor Murphy makes some raises some fair concerns challenge my suggestion for lateral strategies, hinting at deeper issues of international jurisprudence and political theory:



Concern 1: While I gesture often to “rule of law” arguments, recognizing a broader scope for the SC’s legislative capacity through doomed to sacrifice existing sources of law (e.g. multilateral treaty regimes). As a general matter, I can’t deny that any margin of deference given to the SC might very well strike the wrong balance. I do hope to resist any suggestion that idea that general statements of the collective good (whether “peace and security” or “salus populi”) should be taken as a higher law than any positive law. The analysis in LLR1 in particular is based primarily on the Charter itself. In LLR2, I am taking greater care in explaining how these powers are limited by application of general principles of international law (e.g., jus cogens and the principle of ultra vires) to international organizations, and I hope in the latter draft it is evident that this project has traveled some distance from its policy-based origins, and attends to the more principled connections between the generality of “legislation” and demands for equal treatment in the field of non-proliferation. Thus when I mention “creative and durable resolutions aimed at developing long term legal and operational capacity, and supporting the non-proliferation framework,” the primary model should not be El Baradei’s proposal, which is arguably a bad faith use of a legislative “mask” for a targeted measure. A better model is UNSC 1540, which requires states to prohibit the transfer of WMD-related materials to non-state actors, and approaches these as collective burdens.



Concern 2: Let us not underestimate the virtues of a crisis-driven, targeted, and reactive strategies over blunt and over-broad lateral strategies. This perspective might be overly influenced by my doctoral research on states of emergency, but I tend to believe that unlike dictatorships or whirlwind romances in Hollywood blockbusters, the development of legal capacity cannot survive being exclusively “crisis-driven.” Hillary Charlesworth has written a well known article on this (“crisis” not Hollywood romance”!). I think standing legislative powers are supportable in the Charter and a better idea overall for both principled and pragmatic reasons, and I hope to make clear that referring to legislation is a “last resort” is not to signal an “emergency” or “exceptional” power, and certainly not the revolutionary usurpation of state sovereignty or the Charter framework by a latent Leviathan. (Though if we are skeptical of the institution in the first place, we will want to grapple with the problem of auto-interpretation, which might border on self-vesting prerogative). Leaving aside this drama, we are simply discussing an emerging option, internalized within the normal order, which might not usually be politically possible. Again, the extant model is Res. 1540, which (for American readers) might deserve an analogy with model gun control legislation.



Concern 3: For similar reasons, lateral strategies aimed at general binding obligations on states have little (or nothing) do with non-state actors we actually fear. International lawyers are concerned in our vocation with both (1) the integrity of international law as a system of rules and institutions, and (2) the substantive values these are supposed to protect. Professor Murphy addresses both in his comments, and rightly detects that the topic of this paper was motivated by the consciousness that both of these concerns could be “shaken in a flash” if what strategists are calling the “Nightmare Scenario” (terrorists acquiring WMDs) were to occur. The salient images that have woven into our imaginations are of mobile networks, small WMDs and apocalyptic ideologies resulting in a “one-off” bomb that multiplies both the immediate effects of 9/11 and also the international fallout. If a weapon smaller than a jet-liner could destroy not only a city block but an entire metropolis with millions of inhabitants, it could also lead to the deformalization of protective rules and brutal sacrificial wars and emergency measures. Even more than the era of “mutually assured destruction” certain death has lost its universality, but it has become imaginable. But, as Professor Murphy notes, when salient threats shape the imagination, our priorities are conditioned by the threats we imagine. This “nightmare scenario” (or even the salience of non-state actors) should not form the sole criterion by which we explore lateral options. More than anything, Res. 1540 is an attempt to disrupt a supply chain. The critical link is between states and non-state actors (and in the future we might not be able to exclude NGOs and IGOs), the supply of nuclear material will only increase through the peaceful uses of the technology, and so will all kinds of less manageable demands.



My thanks again to Professor Murphy (I’m not at ASIL this weekend, but someone at Opinio Juris buy him a drink for me!). With his comments and those of the readers, I hope we can look forward to “LLR3” or something better.