10 Apr Response to Blum Published
As readers will recall, I wrote a short response to Gabriella Blum’s wonderful essay on IHL and common-but-differentiated responsibilities for our inaugural Opinio Juris–Harvard International Law Journal symposium. HILJ has now published my much longer formal response. Here is an overview, from my introduction:
Blum’s normative analysis of the desirability of CDRs in IHL is exceptionally powerful, and I agree with most of her conclusions. This brief response, therefore, is intended to be more constructive than critical. In particular, I want to raise five issues that I believe warrant further exploration: (1) whether permitting judges to differentially apply IHL standards could be seen as legitimate; (2) whether proportionality is the kind of standard that permits differential application; (3) whether, and to what extent, CDRs would encourage states and nonstate actors to comply with IHL; (4) whether the case for CDRs might be stronger in non-international armed conflict (NIAC) than in international armed conflict (IAC); and (5) whether it is possible to assess the humanitarian effect of CDRs without abandoning the jus ad bellum/jus in bello distinction. I conclude that, in fact, Blum’s own analysis supports recognizing at least one kind of CDR: namely, requiring strong states to spend more money than weak states on procuring and using precision weaponry.
Comments most welcome! Feel free to leave them here or email me.
An initial response to both is that all this is very clever. No doubt this is already dealt with by one of the commentators, but it just seemed to me is that CDR’s in this arena are more about weakening IHL rather than anything else. The way this works is that once you move from a rule to CDR you really switch from 1) a regime of rule times range of compliances with the rule to 2) a regime of CDR times differentiated compliance with the CDR. I will call the first RDR-based and the second CDR-based. The question that would appear to come up is whether RDR-based compliance < or = to or > CDR based compliance. One might say that RDR = Rule x range of compliance with rule, and CDR = Rule x CDR coefficient x range of compliance at each CDR coefficient level If one divides Rule on both sides in this math one ends up with: range of compliance with rule = to CDR coefficient x range of compliance at each CDR coefficient level It seems to me that because of the fog of introducing CDR coefficient levels and having a range of compliance at each level, the rule’s force… Read more »