Response to Blum Published

by Kevin Jon Heller

As readers will recall, I wrote a short response to Gabriella Blum’s wonderful essay on IHL and common-but-differentiated responsibilities for our inaugural Opinio JurisHarvard International Law Journal symposium.  HILJ has now published my much longer formal response.  Here is an overview, from my introduction:

Blum’s normative analysis of the desirability of CDRs in IHL is exceptionally powerful, and I agree with most of her conclusions. This brief response, therefore, is intended to be more constructive than critical. In particular, I want to raise five issues that I believe warrant further exploration: (1) whether permitting judges to differentially apply IHL standards could be seen as legitimate; (2) whether proportionality is the kind of standard that permits differential application; (3) whether, and to what extent, CDRs would encourage states and nonstate actors to comply with IHL; (4) whether the case for CDRs might be stronger in non-international armed conflict (NIAC) than in international armed conflict (IAC); and (5) whether it is possible to assess the humanitarian effect of CDRs without abandoning the jus ad bellum/jus in bello distinction. I conclude that, in fact, Blum’s own analysis supports recognizing at least one kind of CDR: namely, requiring strong states to spend more money than weak states on procuring and using precision weaponry.

Comments most welcome!  Feel free to leave them here or email me.

One Response

  1. An initial response to both is that all this is very clever. 

    No doubt this is already dealt with by one of the commentators, but it just seemed to me is that CDR’s in this arena are more about weakening IHL rather than anything else. 

    The way this works is that once you move from a rule to CDR you really switch from 1) a regime of rule times range of compliances with the rule to 2) a regime of CDR times differentiated compliance with the CDR.  I will call the first RDR-based and the second CDR-based.  The question that would appear to come up is whether RDR-based compliance < or = to or > CDR based compliance. 

    One might say that RDR = Rule x range of compliance with rule, and

    CDR = Rule x CDR coefficient x range of compliance at each CDR coefficient level

    If one divides Rule on both sides in this math one ends up with:

    range of compliance with rule = to CDR coefficient x range of compliance at each CDR coefficient level

    It seems to me that because of the fog of introducing CDR coefficient levels and having a range of compliance at each level, the rule’s force in the equation is diminished (we can even eliminate the rule) with the debate now turning to put us in a ruleless space.

    Now one might say that the CDR coefficient is the key and that states will comply with that leve.  What that would mean is that state will argue that the compliance with the CDR coefficient is held at a constant of one so that what we get is something like this:

    range of compliance with rule = to CDR coefficient x (1) = to CDR coefficient

    But what that says is that the range of compliance will be argued by each state to always be at the proper CDR coefficient level at whatever level of compliance (I am only doing my CDR best as opposed to my level best).  And our view gets focused on evaluating them on the CDR level instead of evaluating them on the rule.

    That bothers me.

    Hope that is clear and the math holds up.


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