Pre-emption,Deterrence, and Self-Defence: A Legal and Historical Assessment

The policy of the United States, outlined in the 2002 National Security Strategy, whereby the US claims a right under international law to engage in pre-emptive use of force to prevent a rogue state's development of nuclear weapons, or any weapons of mass destruction (WMD), is unnecessary and therefore unlawful under customary international law of self-defence. This conclusion is reached through a comprehensive and intensive assessment of the normative reactions of politically effective actors to China's development of nuclear weapons during a two-year period between the Cuban Missile Crisis and China's first test in October 1964. While pre-emptive use of force against China, a rogue state, was considered by both the United States and most likely by the Soviet Union, neither used force to prevent it developing nuclear weapons. Since a policy of pre-emptive use of force was unnecessary for either state's self-defence, it would have been unlawful under customary international law. Given that the current strategic scenario of states vis-à-vis rogue states is the same under most circumstances, notwithstanding the existence of international terrorist networks, the article concludes that the proposed claim of the United States is, prima facie, unnecessary to its self-defence, and therefore unlawful under customary international law of self-defence. It shifts the burden of proof to policymakers claiming that all rogue states can be lawfully prevented through pre-emptive use of force from acquiring nuclear weapons, to establish that a particular state cannot be deterred from the use of nuclear weapons. Though the preventive war claim of the US National Security Strategy 2002 may turn out to be an effective strategic bluff in limiting WMD proliferation, the wisdom of the threat should not be confused with the illogic of preventive war.     

Self-Defense and the Use of Force: Breaking the Rules, Making the Rules, or Both?

This article examines shifts in international law regarding the use of force—the jus ad bellum —that emerged in the wake of the September 11, 2001, terrorist attacks and subsequently were invoked in part by the United States and United Kingdom to justify military intervention in Iraq. These shifts import some elasticity—in time, space, and place—into the preexisting legal understanding of self-defense. To be sure, the general consensus that supported the use of force in Afghanistan as a legitimate exercise of self-defense has diluted as the use of that force expanded into other theaters of operation. It is therefore unsurprising that considerable controversy envelops claims by some states that international law entitles them to use force in self-defense in a preemptory manner. This article explores the articulation of this and other justifications for the military intervention in Iraq. It also unpacks the difficult question whether these entitlements are constitutive of inchoate legal rules or simply deviations from the still operational old rules. Moreover, this article encourages scholars and students of international law and relations to consider why a movement is afoot to change the rules and how this affects the architecture of collective security. To facilitate this process of reflection, this article explores the policy implications of retaining the old rules or adopting the newly alleged rules.     

Negotiating Military Alliances: Legal Systems and Alliance Formation

Do domestic legal systems affect states' propensity to form military alliances? This article, building upon the existing research in international relations, adopts a socio-legal approach to understanding international treaty making. By focusing on the essence of international negotiations—communication between states' representatives—I argue that negotiating parties who share a common legal language have a common a priori understanding concerning concepts under discussion. Domestic laws operating within states impact the process of creation of international law embodied in treaties. Empirical analyses show that states with similar legal systems are more likely to form military alliances with one another. Additionally, domestic legal systems influence the way that states design their alliance commitments. In general, my findings suggest that the influence of domestic laws does not stop at “the water's edge.” It permeates the interstate borders and impacts the relations between states, especially the treaty negotiating and drafting process. International negotiators bring their legal backgrounds to the negotiating table, which influences both their willingness to sign treaties and the design of the resulting agreements.     

Drone Warfare in Counterterrorism and Normative Change: US Policy and the Politics of International Law

The use of Unmanned Aerial Vehicles (UAVs) or drones in counterterrorism has changed the face of warfare and is challenging international law on a number of levels. This article assesses some of those challenges in the context of the Obama administration’s justifications to use drones for targeted killing. It focuses on the US as a norm entrepreneur that purposefully works to alter prevalent norms related to the use of drones in counterterrorism efforts. The article analyses normative developments and the meaning-in-use of existing legal provisions that are invoked to justify US policy in this area. By focusing on norm entrepreneurs, this article moves away from purely structural accounts of normative change towards a stronger emphasis on actors and the role of agency. Rather than understanding US drone policy as violating international law, this article argues that the Obama administration was acting as a norm entrepreneur in its counterterrorism efforts, aiming to change the meaning of a number of international legal concepts to justify its policy decisions.     

The Russian case for military intervention in Georgia: international law,norms and political calculation

Abstract

The Russian military intervention in Georgia in August 2008 has raised significant questions about Russian thinking and practice on the legitimate use of military force abroad, especially in relation to neighbour states. The arguments advanced by Russia to justify this campaign show how Russian interpretations of customary international law as well as norms related to the use of force have served as an instrument of state policy, rather than being rooted in any broader international consensus. The Russian discourse in this context about sovereignty, self-determination and the legitimacy of recognising South Ossetia and Abkhazia as states appears similarly to be strongly influenced by political self-interest and Russian views about its entitlement within the Commonwealth of Independent States (CIS) region. Among Russian claims, Moscow's commitment to support its ‘citizens’ abroad has been particularly controversial. This article examines these issues and also the possibility that, through its justifications for waging war against Georgia, Russia is more broadly contesting the interpretation of certain international norms, that it regards as essentially constructed by Western states. Some potential implications of these legal and normative arguments for future Russian policy in the CIS region, including Ukraine, are also examined.     

第二次世界大战后武力使用规范的演进

在国际法体系中,武装冲突法可谓编纂得最为完备的一个分支。经过数百年的积累和铺垫,第二次世界大战后武力使用规范逐渐发展成为完整的规范体系并呈现出四大特征:即为了适应国际关系的新变化武装冲突法扩大了适用范围;使用核武器是否合法成为国际法的重要问题;出现了在武装冲突中"反向"使用武力以达到实现和平目的的新方式——联合国维持和平行动以及在武装冲突中出现了大量作为作战手段而使用的性暴力行为等。然而进入21世纪以后,武装冲突的形态与样式均发生了重大变化,一方面,以无人机、自主作战机器人、纳米生物武器和网络战为代表的新型作战手段方法层出不穷;另一方面,非国家行为体在武装冲突中使用武力的情况有所增加,更出现了私人军事安保公司等法律地位在国际法上尚处于空白的交战主体。以朝核危机为标志,核武器对于国际和平与安全的巨大的潜在甚至是现实的威胁再次凸显,迅速成为国际政治和国际法中的热点核心议题。值得注意的是,即使武装冲突法的基本原则依然相对稳定,但是不断出现的新作战手段和方法,仍然给国际法和国际安全提出了一系列亟须应对的新挑战。     

Gender Equality and State Aggression: The Impact of Domestic Gender Equality on State First Use of Force

I examine the role of domestic gender equality in predicting whether or not a state is more aggressive in international disputes. This research adds to a growing body of feminist research in international relations, which demonstrates that states with higher levels of gender equality exhibit lower levels of violence during international disputes and during international crises. Many scholars have argued that a domestic environment of inequality and violence results in a greater likelihood of state use of violence internationally. This argument is most fully developed within feminist literature; however, research in the field of ethno-nationalism has also highlighted the negative impact of domestic discrimination and violence on state behavior at the international level. Using the MID data set and new data on first use of force, I test, using logistic regression, whether states with higher levels of gender equality are less likely to be aggressive when involved in international disputes, controlling for other possible causes of state use of force. Beyond this project's contribution to the conflict literature, this research expands feminist theory by further incorporating it into traditional international relations theory to deepen our understanding of the impact of domestic gender equality on state behavior internationally.     

International law and hegemony: a reconfiguration

Instead of appearing as a stable set of normative demands opposed to international politics, international law is better understood as an aspect of hegemonic contestation, a technique of articulating political claims in terms of legal rights and duties. The controversies in the law concerning the use of force, the law of peace, human rights, trade and globalisation reflect strategies through which political actors seek to make their preferences appear to be universal ones. But the legal idiom also contains a utopian aspect: it distances political actors from their idiosyncratic preferences and thus creates the international world as a legal community in the act of invoking it.     

Promoting trade through private law: Explaining international legal harmonization

A large body of research examines states’ efforts to increase international trade through public law, that is, by forming preferential trade agreements (PTAs) that lower governmental barriers to trade. Scholars, however, have overlooked another mechanism through which states seek to facilitate trade: international harmonization of private law. Underlying legal harmonization is the assumption that cross-national variation of commercial law impedes trade; by contrast, similarity of laws across countries encourages trade by reducing uncertainty and transaction costs. I argue that the harmonization of private law acts as a substitute for the public-law channel of stimulating trade: countries with limited PTA partnerships make up for this deficiency by joining initiatives for private-law harmonization. This argument is tested by analyzing the UN Convention on Contracts for the International Sale of Goods-one of the primary instruments of legal harmonization. Indeed, countries that are party to shallow PTAs or have few PTA partners are more likely to ratify this private-law convention. Overall, this article urges scholars of trade and international law to broaden their research agenda to include private law.     

Proportionality and balancing in WTO law: a comparative perspective

This article discusses the concepts of proportionality, necessity and balancing in the World Trade Organization (WTO) legal framework. These concepts are increasingly important in the context of services and establishment regulated by the General Agreement on Trade in Services. The role and meaning of proportionality, necessity and balancing are not clear. The emerging WTO case law is analysed in this article, which adopts a comparative approach, drawing upon proportionality and balancing tests in different national and international legal orders. It discusses how these tests could influence the interpretation and application of WTO law. A main argument is that trade-offs among competing norms and values are unavoidable in WTO dispute settlement, and that the proportionality analysis could contribute to making this process more transparent, rational and predictable.     

Punitive Justifications or Just Punishment? An Ethical Reading of Coercive Diplomacy

Can the use of military force in response to violations of human rights norms be meaningfully described as ‘punishment’? If so, does this form of punishment help to constitute a just and peaceful international order? This paper investigates these two questions by examining the use of strategic bombing in campaigns of coercive diplomacy as a means to punish states. The paper explores the concept of punishment and its relevance for international affairs as a theoretical basis. It then turns to two cases of punitive uses of force—US and UK strikes against Iraq in 1998 and NATO strikes against Serbia in 1999. These two military campaigns are assessed as punitive but not necessarily just in that they fail to fit within a clear, legal institutional order and confuse the agent that deserves punishment. The paper concludes by suggesting that while punishment may be necessary for a legitimate international order, current punitive actions do not support such an order.     

Norms in International Relations: Some Conceptual and Methodological Reflections

Acknowledging the social constructivist turn in the study of norms, this article offers to demonstrate that the notion of norms is useful as an analytical tool and likely to become a lasting element in international relations theory. Ideational causality and the independent explanatory power of norms are methodological issues that have been debated widely. Despite arguing that norms matter, social constructivism has problems making a successful case for the independent influence of norms. This article explores social constructivism as an approach to understanding international norms and their origins.     

论预防性自卫与反国际恐怖主义

《联合国宪章》生效以前传统的国际习惯法理论承认在符合严格限制条件的前提下的预防性自卫。但是,《联合国宪章》生效后,对于《联合国宪章》第五十一条是否绝对地禁止预防性自卫,国际社会尚未达成一致。国际恐怖主义组织发动的恐怖袭击,如果达到可以被视为针对受害国的"武力攻击"的程度,则受害国可以行使自卫的权利。但是,如果受害国决定对国际恐怖组织的支持国实施预防性的武力自卫,则必须纳入到安理会的运作机制之下。     

The evolution of rule of law in Cambodia

Cambodian leaders have confounded the efforts of the international community to promote rule of law. Over the past decade the Cambodian government has introduced a series of legal reforms and overseen an increase in the use of legal proceedings including defamation lawsuits against opposition politicians and members of civil society. These reforms and practices, as well as the role of the judiciary in relation to each, may be better understood through elite perceptions of the rule of law in Cambodia. Comprehending the rule of law as it is understood by the ruling elites offers better insight into the trajectory of legal development and the obstacles to Western ideals for legal reform. This article situates Cambodia within the context of illiberal democracy and examines how a thin rule of law has evolved, focusing on defamation law as a legal and political strategy of control. While the international community has pressed Cambodia to carry out liberal legal reforms for some time, the article will outline the obstacles facing reformers and the competing desires of Cambodian leaders embedded in the patronage based political order.     

Your rule of law is not mine: rethinking empirical approaches to EU rule of law promotion

The promotion of the “Rule of Law” is a leading ambition of the EU’s external action (Article 21 TEU). The dominant approach in most policy documents is to define the rule of law in terms of legal and institutional checklists. However, several authors have criticized this “anatomical” approach and have argued for a “sociological” approach. In this paper, I will discuss two empirical models of the rule of law. Most current studies follow the model of the “Rule of Law in Action.” This approach is based on Roscoe Pound’s distinction between the “law in the books” and the “law in action.” I will argue that this conventional approach has several shortcomings. I will therefore introduce an alternative model, based on Eugen Ehrlich’s concept of the “living law.” The principal concern of the “Living Rule of Law” model is not the level of social support but rather the social definition of the rule of law. To assess the strengths and weaknesses of both approaches, I will apply both models in a case study about rule of law reform in a refugee camp on the Thailand–Burma border. It will be concluded that empirical research is essential to evaluate the EU’s external action. Moreover, empirical studies based on the model of the Living Rule of Law support a legal pluralist approach, which focuses on the user perspective of citizens and which recognizes the contested notion of the rule of law across cultural borders.     

跨越东西差异,践行多边主义

今年中方的出席具有特殊意义,因为我和我的同事是从前线而来。中国政府正在习近平主席坚强领导下,全力抗击一场突如其来的新型疫情,14亿中国人民团结一心,投身到这场没有硝烟的战争之中。我们决心守护武汉,守护湖北,守护与病毒抗争的每一位骨肉同胞,坚决打赢这场疫情阻击战。     

The Rule of Law and the UN Peacebuilding Commission: a social development approach

There is a danger that the Rule of Law Assistance Unit of the United Nations Peacebuilding Commission will employ the same dominant but problematic paradigm that the international development community has pursued across the globe. This top-down, state-centred paradigm, sometimes known as ‘rule of law orthodoxy’, stands in contrast to an alternative set of strategies: legal empowerment. Legal empowerment involves the use of legal services, legal capacity-building and legal reform by and for disadvantaged populations, often in combination with other development activities, to increase their freedom, improve governance and alleviate poverty. It is typically carried out by domestic and international non-governmental organisations (NGOs), but also by governments and official aid agencies. This alternative approach focuses directly on the disadvantaged and integration with other development activities, which means it often operates under the de facto rubric of social development. Legal empowerment strategies vary among countries and NGOs. But their impact includes reforming gender-biased, non-state justice systems in Bangladesh; ameliorating the legal system's corruption in post-conflict Sierra Leone; keeping the human rights flame burning in post-conflict Cambodia; advancing natural resources protection and indigenous peoples' rights in Ecuador; and strengthening agrarian reform in the Philippines. Addressing such priorities can help alleviate poverty, ameliorate conflict and prevent chaos or repression from dominating the disadvantaged, particularly in conflict or post-conflict societies.     

新加坡国际航运中心法律服务体系研究

航运中心法律服务体系是以港口、航运立法为基础,涵盖贸易、金融、保险、旅游、环境等法律体系,拥有行政执法、海事仲裁、司法诉讼、海事法律人才培养、海事法律咨询服务等法律软环境与之配套的一个规模庞大、综合性极强的系统工程。本文通过对新加坡国际航运中心法律服务体系成功经验的介绍,以期为建立和发展广西泛北部湾(泛北)区域国际航运中心法律服务体系提供法律方面的启示。     

论国际舆论对国际法的影响——兼析对解决东海南海岛屿争端的启示

国际舆论作为国际社会一股重要的力量,不仅有其区别于一般舆论的特性,而且通过与人类核心价值观念、国际法渊源和国际争端解决的联系,对国际法产生了全面而深刻的影响。国际舆论与国际法相互影响,并对国际争端的解决产生巨大作用。随着东海南海岛屿争端的加剧,诉诸国际法成为解决争议的最好办法。但单纯依靠法律方法解决争端仍然具有一定的局限性,而在国际法框架内充分调动国际舆论的积极因素,不失为解决此类岛屿争端的明智选择。在中菲南海仲裁案中,中方应重视对于国际舆论主导权的争夺。     

Attitudes toward Consent-Based and Non-Consent-Based International Law in a Regional Power Context

International legal scholars have identified and argued for and against new forms of non-consent-based international law. We study variation in Brazilian public opinion about adherence to international law created in three different ways: through a consent-based multilateral treaty, by the U.N. Security Council with the participation of Brazil, and by the U.N. Security Council without the participation of Brazil. Information that Brazil has participated in creating the international legal obligation through a multilateral treaty or membership on the Security Council yields levels of support for adherence to the legal obligation that are similar to those found when the origins of the legal obligation are generic. Information that the international legal obligation was created without Brazil’s participation, on the other hand, results in reduced support for compliance. This difference, which is particularly concentrated among highly educated respondents, is not driven by reduced concerns about reputational consequences or sanctions. Our results suggest that the increased use of non-consent-based forms of international law might be challenged by a lack of public support for compliance.