30 Aug Jus Cogens Norms and The Historical Accident of Influential States
I know that some other international law professors are using this blog as a study aid for their public international law classes. And many of those law professors are using the Dunoff, Ratner and Wippman book, International Law: Norms, Actors, Process. So I wanted to raise a minor issue that came to mind today as I was working my way through the Cyprus material. In that section they discuss the issue of Article 53 of the Vienna Convention and treaties that are void because they violate a jus cogen norm. The specific topic concerned whether a particular treaty provision authorized Turkey to take military action to enforce the treaty, and Cyprus’s argument that it could not because to do so would violate a jus cogens norm against unlawful use of force under Article 53. Then in the notes the book identified possible candidates for jus cogen norms, including unlawful use of force, piracy, slave trading, and genocide.
Having given a fair bit of thought to jus cogens norms as of recent, it got me thinking. If jus cogens norms are higher norms of universal appeal, norms that may be thought of as part of the natural order of things, doesn’t it seem a little odd to include within that category the obligation for all non-defensive just wars to secure the approval of China and Russia?
I can’t help but think that a philosopher creating an international system from a Rawlsian original position would accept the notion of jus cogens norms. And he likely would agree that a norm like genocide or slave trading should rise to the level of a non-derogable obligation. But I rather doubt that this hypothetical philosopher would conclude that a jus cogens norm would include the obligation to secure the approval for all non-defensive just wars from a particular country that by historical accident happened to be influential at a particular moment in time, but that otherwise was not especially recognized for its wisdom, judgment, authority, or democratic legitimacy. (I’m not intending to single out any particular country when I say this). It just seems counter-intuitive to say that that country’s approval is required as part of the natural order of things and that no state can resist the obligation to secure their blessing if it wishes to wage a non-defensive just war. (I am assuming that from a philosophical perspective some wars may be just even if not waged for the purpose of self-defense, i.e., to correct a grave public evil such as the massive violation of the basic rights of whole populations).
I think I know a somewhat persuasive response to this question, but first wondered if others had any thoughts.
Roger, This reminds me of Judge Higgins’s speech at the ASIL Centennial meeting, where she also expressed doubts about the jus cogens nature of the prohibition on the use of force. Also, when we think of jus cogens norms, we understand them as an expression of certain fundamental values, but we also see them as knowing no exceptions to their application, as being non-derogable. And that is where the prohibition on the use of force, as set out by Article 2(4) of the UN Charter, is exceptional, as it does have exceptions, namely self-defense under Article 51 and SC authorization under Chapter VII. Even if we put aside the many shady areas when it comes to self-defense, e.g. defense against non-state actors or the protection of nationals, how can the prohibition against the use of force be jus cogens if it has exceptions to it? But, then again, how can it NOT be jus cogens when the whole point of modern international law is to put a stop to the scourge of war, which has caused untold suffering for mankind – as the framers of the Charter would put it. And there I think lies the crux of the problem,… Read more »
Why cannot the prohibition on the use of force be construed on the order of a prima facie obligation (after W.D. Ross)? Even Kantian ethics, following Onora O’Neill, can grant that the formal universalizability of ethical principles does not mandate uniform treatment, that principles are indeterminate and leave room for differentiated application, and that the application of principles to cases involves judgment and deliberation (for it is not on the order of a moral algorithm; cf. Allen Buchanan’s identification of at least three sources of indeterminacy with regard to the implementation of ‘abstract’ human rights). Such principles act as side-constraints, and thus while action-guiding, they do not, literally, make decisions for us. As with moral practice in general, ‘we begin by making sure that the specific acts we have in mind are not incompatible with acts on maxims of duty’ (O’Neill). Any ethic of principles theoretically must admit of the possibility of conflict between principles, so it may very well be the case that in practice one obligation will trump another (Ross would have identified this as the absolute obligation), meaning in our case we need identify the jus cogens norm that trumps the prohibition on the use of force… Read more »
Please eliminate the first ‘for’ in the last sentence above.
Professor Alford,
You do in fact single out some countries (contrary to the parenthetical note), namely Russia and China, which is fine by me, but thought I should mention it.
Moreover, I’m a tad curious as to why you limit yourself to a ‘non-defensive just war,’ rather than speaking to principles of humanitarian intervention in general.
Lastly, in addition to Buchanan’s proposal for implementing the principles of humanitarian intervention within the international community (which, technically speaking, is illegal inasmuch as it violates existing UN-based law on humanitarian intervention), readers may want to compare other discussions and proposals on the ethics and legality of humanitarian intervention:
Chatterjee, Deen K. and Don E. Scheid, eds. Ethics and Foreign Intervention (Cambridge, UK: Cambridge University Press, 2003).
Holzgrefe, J.L. and Robert O. Keohane, eds. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge, UK: Cambridge University Press, 2003).
Jokic, Aleksander, ed. Humanitarian Intervention: Moral and Philosophical Issues (Orchard Park, NY: Broadview Press, 2003).
And I’m preparing myself for any future post on the moral justification of the war in Iraq based on an invocation of some such principles of humanitarian intervention. 😉
The reason I used “non-defensive just war” instead of “humanitarian intervention” is I wanted to speak in more philosophical terms rather than legal terms. Humanitarian intervention is becoming a term of art for a particular kind of war. It is possible I suppose that some just wars may be for purposes other than self-defense or humanitarian intervention, i.e., the kinds of wars that a well-functioning Security Council might authorize in a perfect world to secure and maintain international peace and security.
I appreciate the explanation/clarification.
Admittedly I’m not a legal scholar or practioner and could be mistaken, but my reading of the aforementioned literature does not at all suggest that ‘humanitarian intervention is becoming a term of art for a particular kind of war,’ and thus wars to ‘secure and maintain international peace and security’ could still fall under that heading (while for Buchanan, ‘a well-functioning Security Council’ would have to consist solely of ‘democratic, human rights-respecting states’!). Moreover, ‘humanitarian intervention’ is broader than ‘non-defensive just war’ insofar as it conceives of interventions to ‘secure and maintain peace and security’ as possibly entailing actions that don’t amount to war (e.g., mere presence of armed forces or exercise of police powers).
Dear Professor Alford, Your post and the clarifications in the comments section raise a number of issues. A first issue relates to the ius cogens nature of the prohibition on the use of force in international relations, in particular because of the exceptions that exist. Can we classify the prohibition on the use of force as a ius cogens norm while recognizing at the same time that exceptions on this prohibition exist? This question has also been raised in Mr. Milanovic’s comment on your post. Contrary to Mr. Milanovic, and for reasons that are set out at the end of this comment, I see no problem why the built-in exceptions to the use of force could not be ius cogens themselves without being intellectually dishonest. Yet, I think we should be clear about what these exceptions are. For the moment, I’ll stick to the exceptions that are recognized by the UN Charter itself, i.e. Security Council authorization and self-defence. Since your question deals with “non-defensive” just wars, we can leave the discussion of self-defence under art. 51 UN Charter aside and focus on the use of force authorized by the UN Security Council. In this respect, I believe your post… Read more »
Annabel, Re your remark on derogation, states can contract out of the prohibition on the use of force, in a way – I’m of course talking about intervention by invitation, which you also mentioned. A state can say to another state, ok, I need your military forces, please do come in. The problem in these cases is not the jus cogens nature of the rule, but the validity of the consent – e.g. as in the US intervention in Grenada. On the other hand, a state cannot validly give consent to another state committing genocide or torturing its people. I agree that, in principle, a rule which is not absolute but has certain narrowly tailored exceptions might be called a jus cogens one. However, the prohibition on the use of force is not such a rule, and the exceptions to it are not only not narrowly tailored, but multiply like mushrooms. The problem is not even the level of enforcement, but the normative framework itself – I concede that if we did have a perfect Security Council the situation might be different, but we don’t, and we don’t by design. I think humanitarian intervention is a very good example, actually.… Read more »
Marko I agree that general statements of the kind ‘the prohibition on the use of force is ius cogens’ lack normative clarity, but the answer that I tried to suggest in my comment is that maybe we should narrowly tailor the ius cogens prohibition, which is different from narrowly tailoring the exceptions. In your first comment you very accurately pointed to the tension between idealism and realism. Somewhat surprisingly for myself, I find myself arguing for a dose of realism here! “Ius cogens” is a very peculiar category under international law and I think it would benefit from a “hygienic” approach to it. A clear but limited rule would in that respect be better than a rule that is too overbroad and vague. My concern is that if we are too generous with the term “ius cogens” we risk undermining its value for international law. Therefore, it is my opinion that we don’t need to throw the baby out with the bathwater and claim that the prohibition on the use of force can never be “ius cogens”. At the risk of simplification, I’d like to draw this parallel: we don’t consider murder as a violation of “ius cogens”, but murder… Read more »