21 Apr Symposium on International Conflict and Security Law: A Research Handbook – Response by the Editors
[Sergey Sayapin is Professor at KIMEP University´s School of Law (Almaty, Kazakhstan).
Rustam Atadjanov is Associate Professor and Associate Dean at KIMEP University´s School of Law (Almaty, Kazakhstan).
Nicolás Zambrana-Tevar is Associate Professor at KIMEP University´s School of Law (Almaty, Kazakhstan).
Noëlle Quénivet is Professor at Bristol Law School, University of the West of England, Bristol, United Kingdom.
Gerhard Kemp is Professor at Derby Law School, University of Derby, Derby, United Kingdom.]
We are very grateful to colleagues at Opinio Juris for the opportunity to hold a book review symposium on International Conflict and Security Law: A Research Handbook. It took us five years to complete the manuscript against the background of the COVID-19 pandemic and other challenges, and we are very proud of the result, given the complexity of the subject matter, and the quality and amount of work invested by 64 contributors representing all major legal systems of the world.
In a way, the Research Handbook grew out of a previous book project on the use of force against Ukraine, co-edited by Sergey Sayapin with contributions by Noëlle Quénivet, Gerhard Kemp, Rustam Atadjanov, and a few other colleagues from Europe, Asia, Africa, and the Caribbean, whereby we decided, as a next step, to attempt offering a systematic and comprehensive analysis of the rules of international law pertaining to conflict and security in their philosophical, institutional, and political contexts. In fact, this explains why there is no chapter specifically on Russia´s use of force against Ukraine in the Research Handbook: at the time we were conceptualizing the Research Handbook, the volume on the use of force against Ukraine was about to be published, and we thought the books would be mutually complementary. However, soon after we had submitted the finalized manuscript of the Research Handbook to the publisher, Russia launched a full-scale invasion of Ukraine, and it became clear that in the next few years, both books would likely require new editions.
We have learned a great deal from excellent reviews written by our learned colleagues, and will take their helpful advice into account in the next edition of the Research Handbook. We will engage with some of their ideas in the following sections. We also hope the Research Handbook will be of interest to scholars, practitioners and students of international law throughout the world.
Vesselin Popovski, International Peace through International Law
In his review, Professor Vesselin Popovski focuses on human rights (chapter 5), the use of force in international law (chapter 6), the UN Security Council (chapter 7) and its sanctions (chapter 8) as well as transnational and international criminal law (chapter 22). He does a superb job in terms of not only providing a comprehensive review of each of the book chapters but also proposing his own thoughts and reflections addressing the challenging issues covered in the reviewed texts. Thus, after delineating the major arguments offered by Van Engeland in her discussion on human rights’ standing between universalism and relativism (p. 93 of the volume), Popovski suggests a very logical but also simple idea: that “the “Rest” should not blame the “West” for imposing the human rights universality, rather, it should claim the origins of human rights a priori”; he correctly states that “human rights are not “Western” but universal in their origin”. One would find it hard to disagree on this very clear point; Popovski’s suggestion represents an excellent comeback to all the proponents of cultural relativism within the human rights discourse.
Furthermore, after dealing with the contribution by Bakircioglu on the use of force in international law (p. 117) and noting the author’s correct conclusion that the United Nations Security Council has been unable to carry out its primary functions, the reviewer goes one step further and proposes to explicitly demand the elimination of the veto power by way of activating a relevant provision of the United Nations Charter, namely, article 109 re the Review Conference. We could only support the reviewer’s somewhat ironic and simultaneously sad conclusion that “Russia today does no longer deserve the permanent membership and the veto in the Council”. Indeed, it appears hardly likely that the authors of the United Nations Charter and creators of the biggest intergovernmental organization in the world tasked with maintaining international peace and security could imagine back in the day that one of the five permanent seats in the Security Council would in the future be occupied by an aggressor state.
The third reviewed chapter – by Deplano on Security Council Resolutions (p. 149), has arguably received most of Popovski’s attention as he describes it in even a more detailed manner than the rest. Popovski looks at how Deplano analyzed the different aspects and evolution of thematic resolutions of the UN chief security body as opposed to the practice of adopting / vetoing the “government-specific” resolutions. The reviewer then adds his own questions on the nature of international rule of law noting its problems (subjectivity), such as, for example, “do we define “international rule of law” as a commitment for the separation of powers between the actors of international law…?” and proposes that a better formula would be to talk about rule of law at international level. This usefully complements Deplano’s own reflections on rethinking the idea of international rule of law.
Another aspect of the UN Security Council’s mandate and work is discussed in Murphy’s piece on sanctions (p. 171), which is highly praised by the reviewer. Characterizing Murphy’s analysis of the evolution from blanket to smart sanctions as brilliant, Popovski fully agrees with the author’s conclusions and provides another argument in addition to his earlier proposal on the veto power elimination: the Security Council, liberated from veto, should impose mandatory sanctions upon states violators of international peace, security and human rights, to be implemented by the entire world, and to be robustly enforced by them. Again, this argument strikes us as a very logical and clear proposal, albeit implementing it in reality – just as would be the case with veto-power-cancelling – would require a truly combined political will of international community which at the moment apparently appears lacking despite the status quo of today’s conflicts’ reality.
Finally, Popovski turns to Sayapin’s chapter on transnational and international criminal law (p. 469). Describing the major important issues analysed in the author’s work, the reviewer realistically notes the controversial nature of the relationship between peace and security. Agents of peace, in fact, should be separated from agents of justice, as the reviewer puts it. He uses a recent example of the ICC’s arrest warrant against Putin for his war crimes. Would such an action by the permanent judicial mechanism at international level jeopardize peace prospects for the ongoing conflict in Ukraine? Does justice considerations here truly endanger the idea of peace? Popovski says “no”; we must take into account Putin’s unreliability and unsuitability for peace negotiations as well as unlikelihood of provoking him to employ his nuclear arsenals.
All in all, the book review by Professor Popovski provides a holistic and useful overview of significant contributions to the Research Handbook that address some of the most topical matters in international conflict and security law (ICSL). But even more than that, he offers his own original ideas as well as proposals on how to solve the key problems revealed in the reviewed chapters. While realizing them in practice might not be easy (and, indeed, what is in public international law?), we all but concur with Popovski’s conclusions and remain grateful for his insights.
Professor Emiliano J. Buis has written an extremely positive and generous review of the first five chapters in the Research Handbook. An important part of what makes the Handbook original and a useful contribution to scholarship is its attempt to find and define the values protected by ICSL. Rather than merely analysing existing sources of international law in this area, Buis praises the effort made in these first five chapters to discover the interests, goods and ideals that deserve the protection of both municipal and international law. He also agrees that the search for those values cannot be limited to an examination of those same sources of law but must go beyond them, necessarily delving into the philosophy of law and moral philosophy itself.
Where to look for the proper interpretation of norms related to crimes against humanity, the principle of self-determination, the rule of law or the common heritage of mankind? The answer is that such norms require a previous understanding of the concept of humanity, freedom and autonomy or the very idea of law and the legal system. Such concepts are, to a large extent, extra-legal, and it is unavoidable to take a stance, leaving behind the alleged neutrality of Kelsenian approaches to law and normativity. What humanity is, what (or rather who) the human being is, what it means to be humane or free or just or not to be arbitrary require an examination of the kind of potentially universal human community the onlooker – i.e. the scholar or the legislator – desires and that he therefore considers worthy of protection in case of conflict and in case that its security is threatened.
In the quite the same vein, the notion of the common heritage of mankind, to which another of the chapters reviewed by Buis refers, stands in contrast to the reality of a world where notions of objective morality often appear as a threat to democracy and to the perception that cultural relativism is not only a reality but a safeguard against imposing one’s values upon others by force. However, is it not precisely that what is being done in the attempt to criminalize certain conducts worldwide, regardless of the place where those heinous acts are committed, regardless of the cultural background of aggressor and victim, regardless of the education and personal values of the judge called upon to punish them? Similarly, when the rule of law is mentioned as a principle, rule or value worth of protection, are we simply reiterating that a law – any law – loses its normative meaning as a law if it is not binding on authorities and citizens? Are we not actually conferring on the concept of law a positive meaning, the very reason why a law is to be obeyed? Is then the rule of law not a return to the notion of justice and to the corresponding Aristotelian virtue?
These chapters and the Handbook in general are just one more attempt to make sense of a series of global values and interests increasingly considered worthy of global protection but where the mechanisms and rules of protection require to some extent an examination and a refined definition of those values which, in turn, requires asking the hard question of why they are to be considered worthy of protection. The answer cannot simply rely on the positivization of those values precisely because many of them are not positivized or because they are at a very primitive stage of positivization.
A search for common values or for a common reason to protect them may clash against cultural relativism or against moral relativism, pure and simple. However, as some of the authors in the chapters do, protecting humanity or, conversely, punishing crimes against humanity, bears the question of what humanity is in the same way that the rule of law bears the question of why authority – the authority of the law – is something positive, desirable, rather than the opposite. In the end, what we are as a human community and what we want to protect are inextricably linked to each other and any law-making process – also in the field of international law – cannot and must not avoid such enquiry.
Manoj Kumar Sinha, Human Rights: Between Universalism and Relativism
Professor Manoj Kumar Sinha’s review focuses on a chapter that explores the interrelationship between human rights and peace and security in light of the universalism v relativism debate. The chapter written by Dr van Engeland is the last one of Part I of the edited volume that introduces the protected values of humanity, self-determination, the rule of law, common heritage of mankind and human rights. As he rightly points out, Dr van Engeland’s contribution is original inasmuch as it not only links the peace and security agenda to the human rights discourse but also throws a spanner, that of the universalism/relativism debate, into the so-called virtuous circle between the respect and implementation of human rights that leads to peace and security that enables an improved implementation of human rights. Professor Sinha’s own discussion on the various proposals suggested by Dr van Engeland’s and eventual preference for a post-colonial approach that questions the liberal aim of human rights very much reflects Dr van Engeland’s idea of the principle of human rights being ‘a space for contest, adapting to the political reality of the moment’.
Professor Jennifer Trahan’s review of chapters 6 (use of force), 7 (UN Security Council), and 50 (crime of aggression) touches on important issues currently in the spotlight due to Russia’s illegal invasion of Ukraine. As fate would have it, Russia (a permanent member with veto powers) is currently holding the presidency of the UN Security Council; an ironic reminder of the structural weakness of the UNSC noted by Trahan in her review of chapters 6 and 7. While both chapters acknowledge the paralyzing effect of the veto power, neither of the two chapters provide for a way out of this. Future editions would do well to consider the constructive suggestions by Trahan, including the use of a legal challenge at the ICJ in the form of an advisory opinion to challenge Security Council paralysis in the face of humanitarian crises.
Current events underscore the important interconnectedness of the legal (including criminal law), institutional, and political aspects concerning the use of force in international law and relations. Regarding the interconnectedness of these issues, Trahan is quite right in her criticism that there are not enough cross-references between the various chapters under discussion. This is more than an editorial matter. While the various themes addressed in the two volumes are all discrete areas with distinct and nuanced histories, content and debates, one cannot lose sight of the integrative whole of international conflict and security.
Given current events, Trahan’s misgivings about the ‘dispiriting framing’ of chapter 50 (crime of aggression) is perhaps not without merit. We can certainly agree that the crime of aggression is front and centre in so many current international law debates, from the nature and scope of the prohibition on the use of force under international law, to immunities under customary international law to the nature of aggression as a leadership crime to jurisdictional and institutional matters (with the debate on the creation of an ad hoc aggression tribunal for Ukraine receiving a lot of attention). It is arguably the latter aspect – the frustrating lack of ICC jurisdiction over the very clear crime of aggression committed against Ukraine – that animates current international (criminal) law debates on the crime of aggression the most. Some may take issue with Trahan’s Ukraine-centric framing of her criticism (there are regional conflicts and wars from the past decade or so that could also have justified more focus on the crime of aggression), but one can agree with the general point: aggression is indeed one of the core international crimes and that status cannot be in doubt, even though the lack of prosecutions for the crime strongly suggest that the international community may in reality not regard this crime as the supreme international crime. At any rate, the matter of hierarchy of crimes is not the crux of the problem with the crime of aggression – for that one should also read the issues addressed in the chapters on the use of force (generally) and the UN Security Council (specifically). The domestication and regionalisation of the crime of aggression underscore the relevance of the crime. Indeed, Trahan makes the point that the aggression chapter rather ‘gloomily’ underreported the number of domestications of the crime of aggression (and not only in terms of the Kampala definition but also other variations of the crime of aggression). Trahan could have added regional developments like the Malabo Protocol which also provides for an African regionalised version of the Kampala definition of aggression, but with no ratifications after almost ten years of the Protocol’s adoption by the African Union. Indeed, there are currently more African ratifications for the Kampala resolution on aggression than for the Malabo Protocol, with Niger the most recent African state to ratify the Kampala amendments on aggression. What’s more, the Malabo Protocol strangely puts this ‘supreme international crime’ after all the other crimes (i.e. atrocity crimes and transnational crimes like corruption and money laundering). Does this example tell us anything about the inherent seriousness of the crime? Probably not. But Trahan seems to agree that any attempt to marginalize the crime of aggression should be resisted, and with that we agree: the crime of aggression, together with the law and practice concerning the use of force and the powers of the Security Council, form the bedrock of the international peace and security system.
Professor Karen Hulme´s review discusses chapters 20 and 39 by Tara Smith (on the environment and armed conflict), chapter 40 by Federico Dalpane and Maria Baideldinova (on wildlife trafficking as a threat to peace and security), and chapter 51 by Peter Hough (on military ecocide). Whereas the law of armed conflict has been addressing environmental issues already for a few decades, the topics discussed in chapters 40 and 51 are more novel. Hulme notes the originality and comprehensiveness of perspectives offered by Drs. Dalpane and Baideldinova – Kazakhstan´s leading experts on animal law – and the attention the UN Security Council and General Assembly are increasingly paying to transnational wildlife crime as a threat to international security. Likewise, in the future, ecocide could become another crime within the jurisdiction of the International Criminal Court (ICC) – along with genocide, crimes against humanity, war crimes, and the crime of aggression. These observations attest to the progressive development of international law and growing convergence between its relevant areas – including rules on the use of force, international humanitarian law as well as international and transnational criminal law but also international environmental law and rules pertaining to migration and post-conflict compensation and restoration mechanisms. Hulme also notes that all chapters under review are interdisciplinary, which hopefully makes them relevant not only to (international) lawyers but also to experts in other areas.
We thankfully agree with Professor Hulme that it would have been proper to include a chapter on environmental values in Part I of the Research Handbook, and this important chapter will hopefully feature in the next edition of the Handbook. Indeed, whereas some environmental aspects are covered in the chapter on the common heritage of mankind, a separate chapter on environmental axiology will make Part I even more comprehensive and inclusive.
As this book review symposium is taking place, a devastating war of aggression is raging in Europe, and its humanitarian, political, economic and other effects are felt throughout the world. Alas, events like these make books like ours both timely and practical. After this war, the world will be different. We hope it will be a world where respect for international law will be more consistent, and responses by international institutions to global challenges will be quicker and more resolute. Hopefully, in the renewed international order there will be more respect for human rights and the fundamental freedoms, and more effective cooperation between governments and non-governmental institutions for the benefit of individuals, especially the most vulnerable members of our societies. If this war is a test for international law, let the test result in more freedom, less conflict, and better security for the future generations. If our book makes a modest contribution in the attainment of those goals, we will consider our mission largely accomplished.