Symposium on Rewriting Histories of the Use of Force: Of Rules and Exceptions in Jus ad Bellum

[Mohamed S. Helal is Associate Professor of Law at the Moritz College of Law, Ohio State University; and member of the Permanent Court of Arbitration as well as of the African Union Commission on International Law.]

Agatha Verdebout’s Rewriting Histories of the Use of Force: The Narrative of Indifference is an exhaustively researched and lucidly written volume that makes important contributions to both the history and historiography of international law. It problematizes the dominant storyline about the evolution of jus ad bellum. It challenges the claim that, before the 20th century, states retained an unlimited right to use force, and that after the calamity of two world wars, a fundamental transformation occurred when a general prohibition on the use of force was codified in international law. Verdebout argues that contemporary histories of jus ad bellum have oversimplified the content of 19th century jus ad bellum, glossed over the diversity of scholarly views of that era on the legality of waging war and coercive measures short of war, and failed to appreciate the varied record of state practice during that period to propagate a narrative that pre-1914 international law was indifferent towards the resort to force by states. Instead, Verdebout contends – on the basis of an impressive multilingual survey of scholarly writing and a broad selection of examples of state practice – that war in the 19^th century was “ring-fenced by international law” (Agatha’s words, not mine).

Verdebout also explores how and why this storyline emerged. She argues that scholars of international law engaged in what one may call self-induced collective amnesia (my words, not Agatha’s). The narrative of indifference – which is unfounded in the reality of state practice and legal doctrine in the pre-1914 era – was constructed to defend international law against charges that it was irrelevant and inefficacious as a restraint on the impulse of states to use force. This narrative was invented to preserve “the grand justification for the necessity of international law and its existence as law proper” and to rescue “the foundational belief about the pacifying power of international law.”

Having read Verdebout’s book, I have two comments/critiques and one question.

First: Self-Preservation as a Schmittian Exception

I agree with Verdebout that pre-1914 practice and scholarship were not indifferent to the question of the use of force by states. However, I am not convinced by Verdebout’s argument that international law of that era had “ring-fenced” the right of states to wage war or exercise coercion. It appears to me that pre-1914 (or, to be more precise, pre-1945) international law permitted the resort to force and recognized the right of states to wage war and engage in a broad range of coercive actions in the furtherance of their interests. If there was a fence, it was porous and permeable, and its gates were intentionally left open.

Let me explain:

Nowhere in international law is Carl Schmitt’s (in)famous claim that “the exception is more interesting than the rule. The rule proves nothing; the exception proves everything” more apt than in jus ad bellum. Indeed, the most interesting and contentious debates in jus ad bellum are rarely about the rule. Rather, discussions mostly center on the breadth of the exceptions, which ultimately define the scope and content of the rule. If one were to peruse a survey of state practice since 1945 (and if you’re looking for such a survey, I’d recommend Corten, Ruys, & Hofer), one discovers a wide variety of arguments that were invoked to justify acts of armed intervention. These include repelling an ongoing attack, preempting an imminent attack, neutralizing a latent threat, preventing mass atrocities, rescuing citizens abroad, executing UN Security Council resolutions, material breaches of UN Security Council resolutions, previous UN Security Council resolutions, intervention by invitation, and intervention undertaken pursuant to applicable treaties.

Perhaps with the exception of some cases of humanitarian intervention, these arguments are all attempts at either applying, interpretating, expanding, stretching, or twisting one of the three exceptions to the general prohibition on the use of force that is codified in article 2(4) of the UN Charter, which, as readers know, are: (1) self-defense against an armed attack, (2) enforcement action authorized by the UN Security Council, and (3) consensual intervention.

Similarly, as Verdebout recounts, throughout the 19^th century, scholars and statespersons recognized a wide range of cases in which states were entitled to use force. These included restoring the balance of power and preserving the political equilibrium between the great powers of Europe, suppressing revolts and threats to monarchical rule, recovering public or private debts, avenging injuries or insults to citizens or damages to their property or interests, enforcing treaty obligations, implementing arbitral awards, upholding the right to engage in commerce, and protecting religious minorities. To justify intervention in these situations, a variety of doctrines were invoked, such as self-defense, self-help, necessity, reprisals, and retorsions. Ultimately, however, these doctrines were expressions or applications of the broader concept of self-preservation, which Verdebout admits, was recognized as a fundamental right of states.

To Verdebout, this confirms the core claim of the book, which is that pre-1914 international law was not indifferent towards the question of the use of force. For instance, on pages 204-205, Verdebout notes that in all the cases of intervention surveyed in her book, the use of force was “presented as sanctions of law – i.e., as the exercise of the right of self-preservation.” This, Verdebout tells us, is contrary to the narrative of indifference, and demonstrates

that States used the vocabulary of international law to justify their behavior … Said differently, it does not challenge the fact that States presented it as a question of law, not just of morals or politics … [and] showed deference to a certain idea that the unbridled use of armed force was not socially or legally acceptable.

Herein lies my concern with Verdebout’s claim about the extent to which 19^th century international law regulated the right of states to use force. The doctrine of self-preservation operated as something of an all-encompassing Schmittian exception. It was a largely undefined and unbounded license to wage war or exercise of coercion whenever a state determined that this was necessary to protect its interests. If there were any restraints on the right of self-preservation, they were mostly procedural, such as the need to exhaust other remedies before resorting to armed force. Self-preservation, which Verdebout presents as an exception to the principle of non-intervention, was so expansive, capacious, and indeterminate that it ultimately displaced and eviscerated any putative rule of non-intervention. In fact, as I discuss below, self-preservation was not an exception at all. If anything, self-preservation and intervention were the rule, albeit subjected to rather tenuous restrictions.

In short, while I accept Verdebout’s observation that pre-1914 international law was not indifferent to the question of the use of force, this is not because it placed meaningful restrictions of the right of states to use force, but because it explicitly, and rather unapologetically, permitted the use of force and the exercise of coercion as instruments of state policy.

Second: Latin America and the Codification of the Prohibition on Intervention

This brings me to my second critique of Verdebout’s arguments, which relates to the status of the prohibition on intervention. Verdebout is correct to contend, on the basis of an impressive survey of doctrinal writings, that jurists in the 19th century extrapolated, through a process of deduction, a norm of non-intervention from the principles of the sovereignty and independence of states. In my view, however, this does not demonstrate that non-intervention (or the non-use of force) were rules of positive international law in the 19th century. As I discuss here and in a book that I am currently writing (apologies for shamelessly self-promoting a forthcoming work), non-intervention first crystalized as a rule of inter-American international law in the early-to-mid 20th century and was only recognized as a rule of general international law in the mid-1970s.

The process of developing a prohibition on intervention began with a series of 19^th century conferences convened by Latin American states in the decades after they gained independence. The most important of these were the 1826 Congress of Panama, the 1848 Congress of Lima, the 1856 Congress of Santiago, and the 1864 Congress of Lima. These were followed by a series of 20^th century meetings and conferences held under the auspices of the Pan-American Union, including in Santiago (1923), Rio de Janeiro (1927), Havana (1928), Montevideo (1933), Buenos Aires (1936), and Bogota (1948). One of the most significant outcomes of these conferences was the codification – in the context of inter-American relations – of a general prohibition on intervention in the internal or external affairs of states which was later internationalized when the 1970 Friendly Relations Declaration was adopted.

This record of state practice challenges Verdebout’s claim that

the only difference between the present and the past is the fact that, today, the main principles governing the relations of States have been codified and set in legal texts, whereas in the nineteenth century they were customary and, consequently, harder to grasp with a similar degree of certainty (at p. 112).

Non-intervention became a rallying call for Latin American states precisely because it was not a rule of either customary or conventional international law. The fact that a whole range of rules, principles, and practices falling under the general heading of self-preservation could be invoked by the United States and various European powers to intervene in Latin American affairs galvanized those states to articulate and codify rules that had previously not been recognized in the firmament of international law and that were designed to protect their independence and to reaffirm their juridical equality as sovereign states (examples include non-intervention, the illegality of acquiring territory through the use of force, the inviolability of territorial sovereignty and national frontiers, uti posseditis juris, and the declaratory theory of recognition)

In other words, the difference between the 19^th and 20th centuries is not merely that certain customary principles were transcribed as conventional rules. In my view, Verdebout appears to underappreciate the value and significance of the prohibition on the use of force and the broader prohibition on intervention.

Think of the many cases of intervention that occurred in the post-1945 decades. In almost every case, the aggressor deployed arguments that could have been accepted as legitimate grounds for using force or exercising coercive measures short of war in the 19^th century. Iraq’s invasion of Kuwait, for instance, was justified on the basis of territorial disputes and allegations of economic aggression waged by Kuwait against Iraq; the US interventions in Cuba, Nicaragua, Chile, and other Latin American countries could have been justified as a form of self-preservation against a perceived threat of communism; and finally, Russia’s ongoing invasion of Ukraine could easily have been justified as necessary to restore the balance of power in Europe.

The outlawing of war, the prohibition on the use of armed force, and the prohibition on intervention, all of which are 20th century innovations, have provided the intellectual vocabulary and doctrinal grammar that we can now deploy to evaluate and condemn such acts as unlawful.

Third: Did the Narrative of Indifference Actually Rescue International Law from Irrelevance?

My third and final observation is not a critique of Verdebout’s book, but a question. Was the narrative of indifference successful in resuscitating confidence in international law as an agent of peace and a force for good in the world? I pose this question because if we, as students of international law, look to our colleagues who are theorists of international relations, we would find that, especially in the immediate post-war years, international law was viewed with considerable skepticism.

Indeed, Hans Morgenthau, the doyen of contemporary international relations theory and the founder of modern-day realism as a school of thought, was a disaffected, disenchanted international lawyer. As Morgenthau himself explained (see here), his lack of faith in international law’s ability to restrain power politics and prevent the outbreak of war was born during the inter-war years as European international lawyers celebrated the establishment of the League of Nations and conclusion of the 1928 Kellogg-Briand Pact. As long as the international system remained decentralized and anarchic, Morgenthau lamented, “international order, international peace, and international law are bound to be in a precarious state.”

Of course, since 1945, other schools of international relations theory have emerged that recognize a role for international law in the management of international politics. Regime theory, for instance, has emphasized the importance of rules and institutions in solving collective action problems, and constructivists have highlighted the role of norms in creating the background architecture of international politics and generating understandings of national self-interest. Moreover, even some realists, like Stephen Walt, recognize (see here) that international law plays some role in restraining the impulse of states to wage war.

Nonetheless, it appears that, outside the “invisible college of international lawyers,” the narrative of indifference had little impact on views regarding the value international law as an instrument of peace. Especially during the Cold War, most statespersons and international relations theorists exhibited greater faith in practices such as nuclear deterrence, alliances, and balance of power politics as effective mechanisms to prevent the outbreak of war.

Verdebout does not directly address the challenge to international law from international relations theory. Verdebout does, however, note that whenever confronted with doubts about the effectiveness of international law, our reflex as international lawyers has been to take refuge in formalism. This leads me to wonder whether, in addition to continuing to engage in formal, doctrinal research, we as international lawyers need to expend greater energy in exploring how international law influences the policymaking process, including in questions of war and peace. This is a question that some scholars and practitioners have investigated (see for example the collection of essays in Margaret McGuiness and David Stewart’s new edited volume) and have shown how the rules of international law and the processes of international institutions affect policymaking conversations and shape the policy choices of states. What this research has shown is that, while international law does not on its own determine policy-outcomes, it is an important factor that is considered in the process of articulating national policy, including by providing a vocabulary of exceptions and justifications that are deployed by states to justify their decisions to wage war.

Conclusion:

To conclude, I think Agatha Verdebout has made an admirable contribution to the literature on the history of the prohibition on the use of force. Not only does her book provide an impressive survey of scholarship and state practice relating to the use of force, but it also reveals how and why disciplinary narratives are constructed to create the self-images that sustain the industry of international law. It also invites us to consider how the boundaries between rules and exceptions continue to shift in jus ad bellum, and to be wary of argumentative techniques that construct Schmitt-like exceptions that threaten to extinguish the rule of law by granting licenses to the exercise of violence in international affairs.