Symposium on International Conflict and Security Law: A Research Handbook – The Extra-Legal Foundations of International Conflict and Security Law: the Importance of Identifying Globally Protected Goods and Collective Interests

[Emiliano J. Buis is Professor of Public International Law at the University of Buenos Aires (UBA) and at the Central University of the Province of Buenos Aires (UNICEN). He is also a Researcher at the National Research Council for Science and Technology (CONICET).]

Introduction

The monumental volumes entitled International Conflict and Security Law: A Research Handbook, edited by Sergey Sayapin, Rustam Atadjanov, Umesh Kadam, Gerhard Kemp, Nicolás Zambrana-Tévar and Noëlle Quénivet, are a unique example of collective scholarship. Not only does the book put together sixty-four chapters written by authors from all over the globe —an outstanding achievement in itself— but it also reflects on a highly debated topic from extremely original perspectives. While many books had paid attention to the conventional and customary sources of the international legal rules applicable in times of crisis, the broad understanding of “security” and “conflict”, which is suggested in this handbook, opened the floor to innovative readings. To my mind, one of these novel approaches, which should be welcome, is represented by Part I of the first volume, focused on “protected values” (pp. 2 – 113).

According to the editors of the handbook, the publication of the chapters intended to convey a wider look: the idea was to go beyond the narrowly defined classical areas related to international security and the regulation of conflict in order to provide us with more comprehensive readings to understand the character and features of the legal sources at stake. Expanding and enriching the debate has meant, among other things, to depart from earlier views by “highlighting a few key values protected by international law” (p. vii). The advantages of this method are notorious and deserve attention. If “conflict” and “security” are notions which clearly (and obviously) preexist their regulation in law, an enquiry into the preexisting values underlying them becomes of the utmost importance in order to grasp the need to deal with them through a normative approach. Here is where the Rechtsgutstheorie can become a useful tool to identify all those legal goods that, because of their position and prominence, need to be protected through a particular juridical order (on the origins of the notion of Rechtsgut, coined by Johann Birnbaum in 1834 and soon incorporated in German criminal law thinking, see Seredyńska, I. Insider Dealing and Criminal Law: Dangerous Liaisons, Springer: New York, 2011, pp. 192-195, and the chapters in Hefendehl, R., A. von Hirsch and W. Wohlers (eds.), Die Rechtsgutstheorie. Legitimationsbasis des Strafrechts oder dogmatisches Glasperlenspiel?, Nomos: Baden-Baden, 2003. These contributions offer several views on the advantages and difficulties inherent to the need to identify proper “legal goods” to build an efficient criminal legal system).

This is, precisely, the function of the first five chapters of the volume, which tackle the appearance of some of those fundamental values, both natural and positive. In sum, the interesting remarks offered by these initial chapters deal with the discussion of extra-legal interests that justify the regulation of mankind’s security and welfare and define its normative status.

Assessing the Relevant “Global Values”: the Content of the Chapters in Part I

Drawing together some philosophical and sociological reflections, Rustam Atadjanov reflects on the idea of humanity in Chapter 1. The author convincingly argues that, in spite of the relevance of the notion across different regimes of international law (including international humanitarian law, international criminal law, international human rights law, state responsibility, etc.), there is no wide-ranging definition of “humanity” that could serve the purposes of its inclusion in treaties or other international legal sources. When addressing the thinking behind the continuous mention to humanity, Atadjanov manages to spot five key elements which seem to interact whenever the concept is referred to: freedom, human dignity, civilized attitude, humanness and reason. By resorting to the notion of “legal good” (Rechtsgut) advanced by Claus Roxin (defined as “… all the conditions or purposes necessary for the free development of the individual, the realization of his/her fundamental rights and the functioning of a state system based on these objectives”, p. 11), the author concludes that humanness represents a valid and legitimate legal goods, both at the national and international levels. Internationally, it is the concept of “international community” that relates closely with the idea of humanity.

In Chapter 2, Boris Kashnikov dwells on the difficult concept of self-determination, constructed at the crossroad of the realms of politics, law and ethics. Through a well-organized historical and normative analysis both of its theoretical and practical dimensions, the author points at the colliding values which seem to be contained in the notion: those linked to liberalism (embracing individual autonomy, freedom and equality) and those rather connected to collectivism (based on non-individual precepts). Interestingly enough, the idea of self-determination gained track in political terms as a moral principle, in spite of the fact that it cannot fully be perceived as a universal one. An asset of this chapter is the idea that values which are behind the creation of a more secure and democratized world may sometimes be contradictory or inconsistent. At the same time, Kashinov shows very well that, to a great extent, these ideas are the social product of specific moments in time (in this case, decolonization and secessionist movements), and are afterwards employed –anachronistically— as an illusory means to justify specific political undertakings.

Anthony Cullen and Kostiantyn Gorobets focus on the idea of rule of law in Chapter 3, considering that it is a foundational principle of the international legal order. The authors skillfully point to the substantive values which are involved in the rule of law when adapting its content to the field of international peace and security: compliance, transparency, and accountability of international decision-making. These values, which constitute the qualities required for a normative order to be stable, certain and predictable, are therefore essential to the consolidation of the international community. Both formally and substantially, the rule of law encompasses authoritative guidelines to limit the discretion of the authorities who are called to enforced rules within a legal system. In substantive terms, Cullen and Gorobets ask themselves what kind of values should be considered as relevant to the “rule of law” in international relations, since they consider that there seems to be no agreement or consensus on the existence of “global values” as such. They include here the maintenance of peace and security and the respect for human rights and dignity, insofar as the idea of the international rule of law refers to the consolidation of a framework, shared by the international community as a whole, aimed at the necessity of building a better and more just future.

Chapter 4,  written by Victor Ventura and Eduardo Filho, discusses the notion of common heritage of mankind and reflects on the shift of paradigm involved in the concept. With a wide-ranging set of sources and a solid methodology, the authors elaborate a diachronic interpretation in which they notice the evolution from a statehood-oriented paradigm towards a community-oriented one. Through the example of the Common Heritage of Mankind regime, they explain the growing presence of global values which become relevant to the interests of humankind —including the peaceful use of areas and resources beyond national jurisdiction, equitable benefit-sharing of those resources, sustainable productivity and intergenerational equity, among others— and which go beyond the benefits of states. This new attention paid to those values can reaffirm the future importance of the concept as a result of the preservation of collective standards and ideals that need to be protected.

Finally, Part I of the first volume of the handbook concludes with Anicée van Engeland’s Chapter 5) on the concept of cultural relativism in international human rights law. With solid grounds, she identifies the different trends surrounding the well-known debate on the tensions between universalism and cultural relativism. Postcolonial readings of that opposition have set the basis for new approaches in which “universalism” is deprived from its liberal and capitalist western-oriented roots. A new paradigm should be imagined in order to rethink the relationship between human rights and peace and security in terms which are not those that had been promoted by traditional liberal-founded views.  The challenge presented by van Engeland, to my mind, is to encourage the peaceful coexistence of different cultural perspectives without excluding the recognition of global values which set the scene for global efforts aimed at the preservation of peace and security. 

Legally Protected Interests and International Law: the Importance of the Debate

As I had the opportunity to discuss in a recent chapter co-authored with Morten Bergsmo and SONG Tianying, the concept of legally protected interests is essential to understand the emergence of international law (Bergsmo, M., E. J. Buis & T. SONG, “Protected Interests in International Criminal Law”, in Bergsmo, M., E. J. Buis & T. SONG (eds.) Philosophical Foundations of International Criminal Law: Legally-Protected Interests, vol. 3, Brussels: Torkel Opsahl Academic EPublisher (TOAEP), 2022; pp. 1-55 [con referato, ISBN 978-82-8348-121-1, e-ISBN 978-82-8348-122-8]. The volume is available at: https://www.toaep.org/ps-pdf/36-bergsmo-buis-song). A number of relevant recent contributions have dealt with the need to spot and find extra-legal values that have become so important in the international community that they can explain the development of international legal norms (among others, see: Simma, B. From Bilateralism to Community Interest in International Law, Collected Courses of the Hague Academy of International Law, Volume 250, Brill/Martinus Nijhoff: The Hague, 1994; Gaja, G. The Protection of General Interests in the International Community, Collected Courses of the Hague Academy of International Law, Volume 364, Brill/Martinus Nijhoff: The Hague, 2011; Fastenrath, U., D.- E. Khan, S. von Schorlemer and A. Paulus (eds.), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma, Oxford University Pres: Oxford, 2011; C. Ryngaert, Unilateral Jurisdiction and Global Values, Eleven International Publishing: The Hague, 2015; W. Benedek. K. De Feyter, M. C. Kettemann and Ch, Voigt (eds.), The Common Interest in International Law, 2016, Intersentia: Cambridge/Antwerp; E. Benvenisti and G. Nolte (eds.), Community Interests Across International Law, Oxford University Press: Oxford, 2018; V. Gowlland-Debbas, “Judicial Insights into Fundamental Values and Interests of the International Community”, in A. S. Muller, D. Raič and J. M. Thuránszky (eds.), The International Court of Justice: Its Future Role After Fifty Years, Martinus Nijhoff: The Hague, 1997, pp. 327-366; P.-M. Dupuy, “Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi”, in European Journal of International Law, Volume 16, Issue 1, 2005, pp. 131-137; E. de Wet, “The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order”, in Leiden Journal of International Law, Vol. 19, No. 3, 2006, pp. 611-632; S. Villalpando, “The Legal Dimension of the International Community: How Community Interests Are Protected in International Law”, in European Journal of International Law, Vol. 21, Issue 2, 2010, pp. 387-419). These values have been widely identified under expressions such as “community interests”, “common interests”, “collective interests” or “interests of humanity”, to quote only a few (on these expressions, see Feichtner, I., “Community Interest”, in Rüdiger W. (ed.), Max Planck Encyclopedias of International Law, Oxford University Press: Oxford, 2008, p. 2-4. On the “interests of humanity” and its relation to morality, see the separate opinion of Vice-President Weeramantry at the International Court of Justice in the case “Gabčíkovo-Nagymaros Project” (Hungaria v. Slovakia), Judgment, 25 September 1997, ICJ Reports 7, 118). In all cases, the idea is to draw the attention to the existence of collective values and community interests which trigger (or should trigger) the development of international legal rules. As acknowledged even by international jurisdictions such as the International Court of Justice, these values are intrinsic to concepts such as jus cogens, general principles, and obligations erga omnes (for an example of the importance of values in peremptory norms, see ICJ, “Barcelona Traction, Light and Power Company, Limited” (Belgium v. Spain), Judgment, 5 February 1970, ICJ Report 3, para. 33. See also William E. Conklin, “The Peremptory Norms of the International Community”, in European Journal of International Law, Volume 23, Issue 3, pp. 837-861).

It seems clear that, in spite of their importance to assess the legitimacy of international law, there is no single and widespread definition of what these values are (on international “common goods”, see Cafaggio, F. and D. D. Caron, “Global Public Goods amidst a Plurality of Legal Orders: A Symposium”, in European Journal of International Law, Volume 23, Issue 3, 2012, pp. 643-649, as well as Shaffer, G. “International Law and Global Public Goods in a Legal Pluralist World”, in European Journal of International Law, Volume 23, Issue 3, 2012, pp. 669–693). Nevertheless, as the chapters under review show well, one of the main features of these “global” legal goods is the fact that they belong to a collective subject which cannot be only limited to the community of States: they are also related to mankind, non-State actors and individuals at a collective level (Paulus, A. “International community”, in Max Planck Encyclopedia of International Law, online, 2013). When discussing humanity, self-determination, the values behind the rule of law principle, common heritage of mankind and the universal/relative scope of human rights, authors are conscious about the fact that these are concepts related to a global community in which states are not alone. On the contrary, the five chapters seem to suggest that the creation of formal international legal sources dealing with peace and security has been always embedded in ethical, moral, political or cultural sets of norms that relate to our human nature and that, in their extra-legal core, even preexist the legal invention of statehood as such.   

In addition, in the literature there are still open discussions on the “universality” of these values. Whereas Simma, for instance, considers that these interests need to translate fundamental values based upon “universally held moral beliefs” which are essential to the survival of humankind (Simma, B. idem n. 3, p. 249), Feichtner does not exclude non-universal interests which transcend national interests: these might refer to domains such as the protection and creation of common goods, the protection of common values, the internationalization of common spaces or the redistributive and intergenerational justice (Feichtner, I.,  idem n. 4; Besson, S. “Community Interests in International Law: Whose Interests Are They and How Should We Best Identify Them?”, in Benvenisti, B. and G. Nolte (eds.), idem n. 3, pp. 50-69, at pp. 39-40). The chapters that I have described also play an interesting role in this general discussion, since they show that collective interests can be found in different arenas: will notions such as “humanity” owe much to a universal foundation, “self-determination” or “common heritage of mankind” have proven to be ideologically driven, born in concrete contexts in order to justify political standpoints.

In general terms, the chapters offered by Atadjanov, Kashnikov, Cullen and Gorobets, Ventura and Filho, and van Engeland represent a fruitful addition to the works that have been published lately on the relevance of common values as a driving force for international law. They show that assessing these (somehow ambiguous) interests can frequently imply complicated reasonings in order to grasp their meaning, and that values have to be considered in their historical elaboration. Placed between domestic and international law —and sometimes with different characteristics— they contain a strong philosophical dimension that requires escaping the realm of law in order to engage in extra-legal considerations.

Conclusion

I will conclude these brief remarks by stating that, due to the inherent complexities of these lines of thought, the inclusion of these out-of-the-box presentations within a book dealing with specific aspects of international law is an outstanding strength. The decision by the editors to reframe the topic and to open the floor to these deep-thinking methods is more than welcome and should be applauded.

It is only recommended that future editions of the handbook include other possible “candidates” for collective Rechtsgüter in international conflict and security law, such as peace, dignity, unity, harmony, integrity or solidarity. All these values, taken individually or as a whole, can help improving our understanding of the logics that have been feeding the legal basis of international security. Adding these points of view can allow us to re-legitimate international institutions and practices in front of future generations of humankind. So as not to deceive or disappoint, norms imposed by the international legal system can only get wide acceptance if, together, we are truly convinced that those rules are founded in a broad comprehension of those expectations, inspirations and transcendental values we all happen to share.