Jus Post Bellum Symposium: Navigating the Unilateral/Multilateral Divide

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.]

How should the idea of a jus post bellum be integrated into existing international law?  A wide array of norms now applies to post-conflict states: international humanitarian law, jus ad bellum, human rights law, the law of international organizations, and occupation law to name only a few.  If a jus post bellum is to be seen as essentially normative — as opposed to serving as a set of ethical guidelines — it must come to terms with certain essential attributes of the international legal system it seeks to join.

In my chapter of Jus Post Bellum: Mapping the Normative Foundations, I argue that one of the most fundamental attributes of the contemporary post-conflict period is the distinction between norms regulating unilateral action and those regulating multilateral action.  The two are distinguished by the presence or absence of a Security Council resolution under Chapter VII of the Charter.   A Chapter VII resolution may remove the actors addressed by its terms from the regulatory regimes listed above.   A jus post bellum that ignored this bifurcated structure would risk either incoherence or irrelevance.   If it regulated only unilateral actors then it would become largely irrelevant, since the Security Council now issues Chapter VII resolutions on virtually all post-conflict states.  If it sought to regulate multilateral actors it would become incoherent, since a Chapter VII resolution trumps virtually all other sources of law.  A jus post bellum that asserted primacy over such resolutions would find little support in contemporary doctrine.

My argument relies on three propositions.  The first is that absent a Chapter VII resolution, the most significant legal regimes applicable to the post-conflict period – jus ad bellum, occupation law and the law of human rights — are almost exclusively directed at states.   The codification of jus ad bellum in Charter article 2(4) applies by its terms only to states.  The same is true for Article 51 concerning the right to self-defense.  By contrast, the Security Council is not limited by the jus ad bellum.  The criteria in Charter article 39 triggering application of Chapter VII have been interpreted to allow a much broader scope of action than Article 2(4) permits states acting unilaterally.

The modern law of occupation is set out in the Fourth Geneva Convention of 1949.  Like all the Conventions, the Fourth governs the conduct of the treaty’s “High Contracting Parties.”  To date, these have been limited to states.  Neither the U.N. nor any other international organization has even attempted to ratify the Convention.   In 1999, the U.N. Secretary-General issued a Bulletin declaring that U.N. forces would abide by a generalized set of humanitarian norms “when in situations of armed conflict they are actively engaged therein as combatants.”  The Bulletin contains no guidelines specific to occupation, though the protection of civilians (“protected persons”) is emphasized.  Some have suggested a functional approach:  occupation law should bind IOs when they are capable of complying with its terms.  But because, as Marco Sassoli notes, “some provisions of IHL cannot be applied to the UN since it lacks, e.g., a territory, a penal system, or a population,” the result would be less than full compliance with occupation norms.

But even if fully applicable to Chapter VII operations, a central provision of occupation law would severely limit the Security Council’s ability to carry out the broad-based reforms that have become central to its post-conflict missions.  Occupation law prohibits broad legislative acts by occupiers in an effort to preserve existing laws and political institutions in the territory.  Unlike the human rights obligations in occupation law, this “conservationist principle” does not duplicate IO practice; indeed, it is the very antithesis of what multilateral post-conflict missions seek to accomplish.  Those missions are reformist by their nature.

Finally, while human rights law famously helped break the state’s near-monopoly on legal capacity to acquire rights under international law, it has not generally expanded obligations beyond the state.  Robert McCorquodale puts the matter directly: “The international human rights law system is a state-based system, a system in which the law operates in only one area: state action. It ignores actions by nonstate actors, such as the United Nations . . . Nonstate actors are treated as if their actions could not violate human rights, or it is pretended that states can and do control all their activities.”  This despite the obvious reality that IOs such as the UN “can and do violate human rights.” (96 Am. Soc’y Int’l L. Proc. 384, 384 (2002))

The second proposition: even assuming one or more of these bodies of law would apply to both sets of actors in a post-conflict state, portions of the rules may be preempted under Chapter VII.  Security Council preemption is a consequence of Charter Article 103, which prioritizes commitments under the Charter over those imposed by other treaties.   This legislative power of the Council is now unexceptional, supported both by the ICJ and respected commentators.

The third proposition: if the web of treaty rules particularly important to post-conflict states – jus ad bellum, occupation law and human rights – was designed to regulate states acting unilaterally, the modern era has taken a decidedly different approach.  Starting in the early 1990s, the Security Council began engaging with all aspects of armed conflict.  The goal of multilateralizing warfare – integral to the Charter’s original design — has largely succeeded.  According to two major datasets of armed conflict, there were ten inter-state armed conflicts between 1990 and 2010.  All but two of these were addressed in one form or another by the UN Security Council.  The Council is also regularly involved in all aspects of civil wars, though precise data is not readily available.  For both types of conflict, the Council’s involvement has not been episodic but holistic, as it regularly addresses every stage and virtually every issue in armed conflict, from inception to termination.   This move to multilateralism has been particularly evident at the post-conflict stage.  The UN has become the indispensable actor in rebuilding political, economic and social institutions.  Its involvement has ranged from full international governance to advising transitional regimes.

The norms applicable to post conflict states are thus highly bifurcated.  On the one hand, the existing treaty regimes are state-centric in their design and also largely in their application.  On the other hand, the Security Council has multilateralized the post-conflict period for almost all states experiencing armed conflict in the last decade (to a greater or lesser extent to be sure).  But if we can assume the Council will not retreat from these reconstruction initiatives in the near future, existing post-conflict norms barely regulate the most important actor in the field.

Architects of a nascent jus post bellum thus face a dilemma.  The new regime can mirror the state-centrism of existing law, in which case it will be of questionable relevance to the IOs and IO-sanctioned operations dominating today’s post-conflict missions.  Alternatively, the new regime can expand its application to include multilateral actors.  But in that case it must provide a convincing justification for subordinating Council authorizations under Chapter VII to a set of treaty-based or customary rules.  That seems an impossible task.  A third alternative would be to acknowledge the difficulty of including both states and multilateral actors under the same normative rubric and either (i) settle for a jus post bellum that remains exclusively state centric or, (ii) include multilateral actors within the scope of the new norms but fully recognize that the Security Council may depart from those norms when it chooses to do so.

Perhaps jus post bellum’s ascent into law is premature.  If the roles of individual states and the Security Council in post-conflict states can be harmonized, perhaps a more uniform body of norms can emerge that does require tailoring to the unique characteristics of each.  At that point the division between the two might recede in importance.  But for now it remains fundamental and a jus post bellum cannot avoid reckoning with its implications.