October 2013

Weekend Roundup: October 5-11, 2013

This week on Opinio Juris, we had two guest posts from Tomer Broude, the first giving an introduction to behavioral law and the second discussing a methodological framework to behavioral law. Carsten Stahn also delivered a guest post on cautioning against a new affirmative defense to Article 2(4) of the UN Charter, in response to argumentation put forth by Harold Koh's Just...

Weekly News Wrap: Thursday, October 10, 2013

Your weekly selection of international law and international relations headlines from around the world: Middle East A team of UN disarmament inspectors in Syria have begun the process of destroying the country's chemical weapons and production facilities. Turkey has lifted a decades-old ban on headscarves in the civil service as part of a package of reforms by the government meant to improve democracy. Asia Asia-Pacific...

Behavioral International Law: An Introduction

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

I’d like first to thank the Opinio Juris team, and particularly Prof. Chris Borgen, for inviting me to present my article manuscript, “Behavioral International Law”, in this online forum. Today I will devote my post to general observations on this project. In my second post I will discuss the range of available research methodologies in this area. A third post will discuss some concrete examples of behavioral research in international law.

Behavioral science has in recent years been applied successfully to many legal issues. A field that just a decade ago was entirely new now merits its own research handbooks (one forthcoming with OUP in 2014, edited by my Hebrew University colleagues Doron Teichman and Eyal Zamir). Behavioral research is now embedded in national and regulatory policy-making that clearly interacts with international affairs (see Cass Sunstein’s article on “Nudges.gov” here; the UK’s Behavioural Insights Team; and this conference in December on EU law and behavioral science). No less importantly, the groundbreaking work of cognitive psychologists such as Daniel Kahneman and the late Amos Tversky has been greatly popularized in a series of popular science books (see here, here, and here), making it more accessible to lawyers and policy-makers (for better or for worse).

Simplified, the central concept underlying research in this field is the recognition that human cognitive capabilities are not perfect or infinite; our rationality is ‘bounded’. The human brain makes shortcuts in judgment and decision-making that diverge from expected utility theory. Limiting aspects of bounded rationality and the shortcuts taken to overcome them - generally known as biases and heuristics - inevitably cause human decisions that would be regarded as erroneous if compared with theoretically/perfectly rational outcomes. As I explain in the article, this should at least give pause to standard rational choice approaches to law in general and international law in particular, whose assumptions about the rationality of states and other actors are often distant from behavioral realities.

Having said this, it is important to understand that behavioral economics does not aspire to replace one ideal-type decision maker (a perfectly rational one) with another (rationally imperfect) one.

Haiti Cholera Battle Against UN Moves to US Court

After receiving a staunch “no” from the UN earlier this year, lawyers for Haiti Cholera victims filed a class action lawsuit in the Southern District of New York today.  The complaint is available here.   The complaint seeks certification of a class that is composed of cholera victims who are Haitian and US citizens. The basis of the class action is...

Omit Needless Words

Watching my youngest son draft and redraft his high school essays under the watchful eye of his English teacher, who is smitten by the inerrant wisdom of Strunk and White’s Elements of Style, I was curious how the best legal scholarship in the country fares by classic rules of writing. To simplify my task, I have chosen one rule...

Guest Post: On ‘Humanitarian Intervention’, ‘Lawmaking’ Moments and What the ‘Law Ought to Be’–Counseling Caution Against a New ‘Affirmative Defense to Art. 2 (4)’ After Syria

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project.] Harold Koh’s thought-provoking post on Just Security on ‘Syria and the Law of Humanitarian Intervention – Part II’ illustrates the struggles of international law to cope with injustices and violations of legal norms, including the ban of the prohibition of chemical weapons.  Koh argues in favor of a new ‘affirmative defense to Article 2 (4)’ of the United Nations Charter which would allow the ‘lawful threat of limited military intervention’ to counter ‘a deliberate large-scale chemical weapons attack’. He regards Syria as a ‘lawmaking moment’ that should be used to clarify ‘the contours of an emerging exception to a rigid rule’. This argument is based on a number of claims and assumptions that merit reconsideration. One may easily concur that the law on the use of force contains ‘grey zones’ and that Syria is a ‘hard case’. It is also helpful to set out arguments in ‘legal language that international lawyers’ can debate. But like others (e.g. Kevin Heller and David Kaye), I would argue that is highly questionable whether Syria should be a ‘moment to reframe international law’ in the direction suggested. It may rather be illustrative of the claim of a few to reshape the law in a way that might be seen as a window for abuse by others. It is deplorable that the Council has been blocked over two years, due to an irresponsible use of prerogatives that are out of time. This has created a ‘vacuum of protection’.  But the fundamental question is whether the solution suggested, i.e. greater flexibility towards military strikes under an ‘affirmative defense to Art. 2 (4)’ is the right remedy to deal with this dilemma. This is a very rudimentary logic. It appears to suggest that unilateral military action is the proper remedy to overcome impasses and inaction by the Council. His argument contains a number of problems that require reconsideration: (i) the framing of the choice, (ii) the use of the label of ‘humanitarian intervention’, (iii) the nature of the proposed ‘defense’ for the use of armed force, and (iv) the approach towards ‘lawmaking’. 1. Framing the underlying choice The first problem with Koh’s argument that is that it is phrased in a binary ‘either’/’or’ logic. Koh suggests that there is a choice between ‘turning a blind eye (and a deaf ear) to violations’ and the use of military force.  Koh presents intervention as a lesser of two evils. This is a constructed choice. Hardly anyone would seriously suggest that doing nothing is an option in the face of a violation, such as the 21 August 2013 attack on civilians. The question is not so much whether to respond, but rather how to react. The solution suggested by Koh, i.e. remedying a violation through use of force, blurs fundamental categories of law. The primary norm breached in the Syrian context is a fundamental norm of international law that is prohibited under different bodies of law, including international humanitarian law and international criminal law.  Koh’s logic suggests that use of the force should be an ultima ratio option to respond to such types of violations. This assumption merits questioning. In his case for deviation from the ‘illegality’ rule, Koh mixes different rationales that require different response schemes.  His argument builds a case for military action based on a merger of different objectives: i.e. ‘remedying a humanitarian situation’, preventing ‘the likelihood of future atrocities’, achieving accountability for ‘crimes’, sanctioning the use of chemical weapons, preserving of peace and security. These objectives are all valid and important. But is questionable whether they can be achieved best through a broadening of the options for military force. International law offers alternative paths to the use of force to achieve rationales, such as accountability, deterrence or sanctioning of jus in bello violations, i.e. preventive diplomacy, lawful countermeasures, international criminal justice, sanctions etc. Broadening the categories of the use of forces has trade-offs. It weakens these options and their underlying regimes (e.g. non-coercive and non-violent response measures under Chapters VI and VIII of the Charter, mechanisms under R2P etc.). It carries the risk of remedying wrongs through means that are ill-equipped to meet the very goals of intervention. In light of these risks, many nations (e.g., G77) have remained reluctant to accept the doctrine of ‘humanitarian ‘intervention’. Introducing a new ‘affirmative defense’ for military strikes based on Syria crisis would be an open floodgate for other claims. Acceptance of this argument might serve as an incentive for further action outside collective security in other cases involving a threat to international peace and security. For instance, why would other nations be prevented from claiming a similar justification to use force in response to specific incidents or ‘acts of international terrorism’ that have been branded as a threat to international peace and security as such under Resolution 1373 (2001)? Such an approach is vulnerable to abuse and might have detrimental side-effects. It might make the Security Council even more reluctant in the future to engage with threats to international peace and security. A better way forward might be to work towards a more responsible use of veto powers in the future (i.e. understandings on the non-use of the veto in specific situations), rather than declaring the Council irrelevant, as done at the height of the Syria crisis. 2. The label of ‘humanitarian intervention’ The second problem with Koh’s argument is that it uses the label of ‘humanitarian intervention’ to justify the claim for the legality of the threat or use of force. Arguments supporting ‘humanitarian intervention’ reach indeed far back in history. But the weakness of Koh’s reasoning is that assumes that Syria falls squarely under that doctrine and that it may be treated in one historical line with incidents such as Kosovo, Srebrenica etc. This is questionable. This analogy hinges. There are fundamental differences.

Speaking of Evolving Approaches to Counterterrorism

The recent raids in Libya and Somalia have, among other things, raises renewed questions about how the U.S. can/should carry out its counterterrorism operations without, as President Obama puts it, “keeping America on a perpetual wartime footing.” Delighted to say we’ll be taking up just that topic in an evening panel I’ll be moderating in New York next Monday. Public...

Responding to Marty Lederman on Somalia

Marty has a response up over at Just Security to my earlier post on the domestic and international law questions arising after the U.S. actions in Libya and Somalia late last week. Continuing the conversation, a few replies here. (1) Is there a statutory source of domestic authority for the operation in Somalia? Marty’s theory is that the AUMF may well suffice...

The Raids in Somalia and Libya – Theories of Self Defense?

As all major news outlets have now reported, the U.S. carried out two armed raids overseas late last week: one in Tripoli that resulted in the successful capture of suspected core Al Qaeda leader Abu Anas al-Liby, and another in Somalia apparently aimed at a leader of militant Somali group Al Shabaab. Both raise complex questions of U.S. and international...