Volume 2, Issue 2
Forcing Institutional Legal Reform:
A theoretical analysis of contemporary use of force and the redrawing of institutional facilitation of collective peace and security
Janet McKnight*

ABSTRACT:This article analyses how competing theoretical arguments from international law and international relations attempt to explain the twentieth century phenomenon of international legal institutions and the twenty-first century use of force within these legal frameworks. First, to illustrate the overarching theoretical framework, key concepts of realism and liberalism will be offered, with the former maintaining that international law, institutions, and notions of humanitarianism merely conceal inevitable power politics and global security competition, and the latter contending that norms of human dignity and collective security have become state interests and are facilitated through international cooperation. Second, an examination of international legal institutions under the sub-theories of neorealism and neoliberal institutionalism will consider whether such institutions, the United Nations in particular, are merely a strategy of powerful states to confine the actions of less powerful states, or whether these legal frameworks provide functional tools for state cooperation. Third, the essay will look at empirical examples of the use of force under U.N. Charter law in conjunction with humanitarian and human rights principles of international law. Specifically, unilateral and unauthorised use of force by the United States and the North Atlantic Treaty Organisation will be questioned as either substantiating neorealist claims of power structures in the international order or as forcing institutional legal reform to facilitate international cooperation of collective. Fourth, challenges to the United Nations’ continued relevance and expanding impact in the realm of international law and global violence are discussed with relation to the hurdles in contextualising Charter provisions and to the prevalence of non-state terrorists highlighting the importance of ‘others’ in defining the peripheries of international law. These challenges will emphasise the consequences of the United Nations’ failure to acknowledge its foundational dichotomy as an inclusive-exclusive regime in the international order. Lastly, modernisation of the theoretical understandings themselves will be discussed as vital to reconceptualising a picture of state-regime interaction that can guide legal reform of use of force provisions and more accurately redraw paths to collective peace amid modern security concerns.

I. Introduction

 There is constant debate in international relations concerning the interplay between international legal institutions and political power balances, global conflicts, and international cooperation. Competing theories of international law and international relations have arisen in conjunction with international institutions, offering alternative explanations for their evolution and the relevance and impact of institutional law on state action. The resulting collective understanding about conflict, security, and institutions is advanced by the “fundamentally different epistemologies and ontologies” used by theorists, with realists believing the world order to be observable and fixed in anarchy, while more liberal theorists continually reinterpret the changing structure of legal framework and state preferences.1 These key concepts of realism and liberalism will be expounded upon in order to illustrate the theoretical framework from which neorealism and neoliberal regime theories stem, and how these fundamental concepts operate in the context of international institutions. This essay will then weigh the accuracies and weaknesses of both neorealism and neoliberal institutionalism in their approaches to international legal institutions, the United Nations (U.N.) in particular, in order to understand whether these legal frameworks are meant to maintain the political status quo or facilitate state cooperation of international peace and security.

To understand how institutions, use of force provisions, and international relations theories themselves are stalled by their traditionalist approaches, empirical examples of unilateral use of force by the United States (U.S.) and the North Atlantic Treaty Organisation (NATO)will test both theories against their traditional understandings of regimes and international law. Theoretical analysis of these case studies will illustrate how states align political and military decisions within this relatively new legal framework, but also how powerful states test the interpretations of different layers of law. The use of unauthorised force in circumstances resembling imperialistic enforcement of ideology through legal mechanisms will be discussed as creating a situation in which international institutions and international relations theorists can no longer ignore the undertones of inclusive-exclusive philosophies in international regimes’ foundations. These examples of unauthorised use of force to achieve national security and humanitarian goals will be questioned as a catalyst for institutional reform and the redrawing of legal paths to collective security and peace.

The second part of this analysis will focus on the current challenges to the U.N.’s future relevance to and impact on the legal regulation of conflict, which are found in the reluctance of the institution to contextualise its laws to meet modern security threats, the limitations of enforcement, and the prevalence of non-state terrorists highlighting the importance of ‘others’ in defining the peripheries of international law. These challenges will present the importance of institutional recognition of its foundational dichotomies of ‘civilising’ the world order through law while excluding clashing ‘civilisations’. The contextualisation of international relations and international legal theories themselves will also be vital to re-envisioning a more accurate picture of the interaction between legal regimes and states. The U.N. can no longer ignore the question of whether and how to best achieve institutional legal reform of use of force provisions in a post-Cold War world of non-state actors and unique security threats. This essay will attempt to reach a nuanced understanding of exactly how contemporary use of force is challenging and informing the U.N.’s facilitation of collective peace, and how international law and international relations theories can contribute to this improved “global governance and ultimately the human condition.”2

II.The Age of Traditionalism: Theoretical analysis of international legal institutions and the use of force

A. Constraints and cooperative functions of the United Nations as theorised by neorealism and neoliberal institutionalism

 To fully grasp the sub-theories concerning international legal institutions, the overarching disciplinary schools of thought from international relations and international law must first be briefly introduced in their historical contexts. With the twentieth century emergence of international institutions and human rights, realism and liberalism have attempted to explain the true source of impact on state action as social or systematic.3 Hans Morgenthau’s classical realism argues that sovereignty remains the highest authority in the international order, and that states will never observe laws that constrict their self-interests, while more liberal theories claim that notions of peace, security, and humanity have become state interests that are better achieved through international cooperation.4 Realists maintain that international law is simply a reflection of power distribution in the world, with “no independent effect on state behavior,” as veto-wielding states on the U.N. Security Council determine the final authorisation of state action or inaction.5 Although realism sprung from cynicism that relations between states could ever achieve “progressive perfectability of the social order,” recent examples involving state prioritisation of human rights have shown cause to believe that such improvements are possible.6 Ruti Teitel interprets this phenomenon of “humanity law” as an evolution of state responsibility rising to the level of human consciousness.7 In essence, what is occurring is that traditional notions of sovereignty are mutating from a purely state-centric definition to one of a common good normatively cultivated around individuals, proving that “the law’s content no longer ar[ises] from Great Power policy but from different and even contrasting values that reflec[t] the different histories of peoples.”8 However, this emergence and spread of socio-legal ideas that affect state behaviour still orbit around states as the key actors in the international order.

Since World War II, human rights norms have flourished in international and domestic law despite minimal benefit to states other than the “normative persuasion” of altruism, as seen with the flourishing of international human rights agreements on issues ranging from refugees and children’s rights to genocide and torture.9 Political science professor John Mearsheimer argues that these apparent improvements in the social betterment of the world fail to actually promote peace through sheer harmonious “ideas and discourse [as] the driving forces that shape the world.”10 This criticism exemplifies the hesitancy of international relations theorists to accept that the rights of individuals and international peace are national interests. Instead, realists cast aside the new world order as temporary, rhetorical, and incapable of maintaining stability. Such criticism can be seen as somewhat ironic considering that realism itself can be viewed as but a “discourse of power,” albeit one that has dominated international politics for several centuries.11 Realists believe that human rights norms, even if codified in the legal framework of international institutions, is only a temporary change in discourse about law, but not a fundamental change in the structure of international politics because states cannot convincingly transform from solitary egoists to cooperative units of a larger machine.12 Realists conclude that underneath the rhetorical guise of human rights found in institutional provisions and international law generally, the true world order of perpetual global security struggle remains intact, as states can never trust the intentions of other states.13

Liberal schools of thought maintain that the realist view simply does not explain the fact that states do not always act in line with self-interests, as evidenced by the lack of any economic or power advantage to gain with humanitarian interventions in Somalia and Cambodia, and in Kosovo, which was not “waged in the name of ‘national interests’, but rather in the name of principles and values.”14 Such principles of humanitarianism are being tested along with use of force provisions, as humanitarian arguments are increasingly comingled with collective security arguments, as will be demonstrated with examples of use of force in Kosovo and Iraq. With the embedding of humanitarianism and human rights language into the fabric of use of force justifications, liberals can assert that the anarchic power balances of a realist world can be socially constructed towards stability by prioritising both international security and international human rights.15

Stemming from the key concepts of realism and liberalism, the sub-theories of neorealism and neoliberal regime theory –the latter also referred to as neoliberal institutionalism –offer competing explanations for the purpose and functions of international institutions. Neorealism insists on institutions as a strategy of maintaining political power imbalancesin the world, while regime theory contend that institutions regulate progression towards peace through facilitated cooperation. Both neorealism and regime theories were developed in response to Morgenthau’s classical realism. However, Kenneth Waltz, founder of neorealism, posits that the global power struggle is not found in nature, as Morgenthau suggested, but in the inherent anarchy of the international structure.16 Waltz set about systematising the realist view, concluding that the only justification for states aligning themselves with institutional frameworks is self-survival in constraining the actions of less powerful states.17 For instance, in the context of treaties limiting the use of force, neorealists believe that an international consensus can and does certainly appear in the form of written agreements, but that law built on normative ideals rather than “esprit international” lead to mere illusory structures of rules.18 Such liberalism masquerading as “moralism”is thought by realists to be invoked by states wanting to cheat the system.19 In essence, jus ad bellum calculated by law and U.N. authorisations is a farce, and that states, acting as unitary actors, will use force to react to real or perceived military threats whenever such action will ensure the survival of their state.20 Unilateral actions by the U.S. are thought to be symptomatic of this survivalist behaviour, where legal provisions are utilised only when helpful to maintaining a state’s superiority in the international order, and are disregarded when they conflict with a state’s narrow self-interests. In this way, neorealists remain unconvinced that international law or international institutions “could ever play more than an epiphenomenal role in the ordering of international life.”21

In contrast, Robert Keohane’s regime theory, formulated as a rationalist critique of realism, reaches a more nuanced valuation of the functional benefits provided by international institutions in facilitating states’ attainment of their self-interests through cooperation.22 Keohane notes four major components of an “international regime”: principles, norms, rules, and procedures – all of which relate to behavior.23 He argues that the collective means of communication, consistent standards, justifiable expectations, and predictability of rules established by regimes, such as the General Agreement on Tariffs and Trade, are as much of a systematic variable in allowing states to pursue their own interests as is the variable of power.24 In contrast, regime theory studies the structural conditions of cooperation that centralised authoritative institutions can provide to groups of actors, whether economic markets or states.25 This is ultimately an argument about the world order based on social utility outcome, as similarly envisioned by Georges Scelle, an early twentieth century French jurist and advocate of the codification of the laws of war, who imagined a utopia of states replaced by professional corporations.26 Similarly, Keohane presents international regimes as the “corporations” that create an administrative and legal framework that functionally allows states to act rationally in relation to other states and to the international order as a whole.27 Institutions, such as the U.N., the International Criminal Court (I.C.C.), and the International Court of Justice (I.C.J.), may not necessarily facilitate perpetual or “pure” peace through regulation of violence and monitoring of human rights. However, such institutions can facilitate the creation of a legal “space” where inevitable resort to war can at least be controlled by a foundation of predicable rules of military force. Indeed, the I.C.J., as the primary judicial organ of the U.N., has stated that the Court’s “contribution to peace is no greater than in those areas where the Court is not only called upon to [settle disputes and promote the rule of law] but to do them in the context of the use of force.”28

In effect, regime theory and neorealism represent two ways of thinking about international law prevalent since colonialism: law as either a cooperative, progressive enterprise, or as a system to define, constrain and exclude new threats to power by bringing “savagery into the civilized core.”29 It is important to regard such fragments of colonial thought as not only indicative of competing purposes of regimes, but as foretelling of particular challenges that institutions encounter as a result of this underlying dichotomy of international law and legal structures. This clash is evident in the difficult beginnings encountered by law’s ability to facilitate peace amidst world power politics, as World War I revealed the danger of creating a “mirage of security” with the Hague Conventions and laws regulating jus en bello (the laws of war).30 The Treaty of Versailles, the first attempt to regulate jus ad bellum (the laws of initially engaging in war), suffered from the same mistake of focusing on utopian ideals of inclusion rather than terminating Germany’s statehood.31 The League of Nations similarly could not successfully create incentives and disincentives for states to maintain world peace. International treaties, such as the 1928 Kellogg-Briand Pact obligating states not to resort to war to resolve disputes, were criticised as being based on presumptions of promises, which “if [they] were true, would make the pact unnecessary.”32 It seemed as if rational functionalism and idealistic inclusion would be inapplicable in a world where states were not fundamentally rational beings.33 What these inter-war era experimentations and criticisms were really concerned with is whether peace – as either a rational or utopian concept – can be achieved through law.

Once it was discovered that effective promotion of peace could not be achieved by an all-encompassing ban on war, but rather would require a more careful process of regulating conflict in certain degrees, the influence of inclusion-exclusion ideologies seemed necessary to allow some flexibility of purpose and means to achieve international security through legal institutions. These supposedly colonial ideologies possibly stem from earlier relics of philosophical thought, as eighteenth century German philosopher Immanuel Kant described solutions for non-civil states in much the same manner as modern international politicians and academics: “I can require him either to enter into a common lawful state along with me or to move away from my vicinity.”34 Such thinking is reflected in the neorealist notions that legal institutional impact on states can only apply, if at all, to nations already exhibiting high compliance habits with international law and security.35 Political science professor Jesse S. Reeves, writing in 1923 about the waging of war between developed and “uncivilised” states, observed: “International law…is merely a body of rules and customs that have grown up among nations more or less similar for use among themselves.”36

Both neorealism and regime theory accept the premise that states, not the institutions, are the “major engines of change.”37 However, regime theory emphasises that laws and legal institutions can actually “change the context of interaction and facilitate cooperative action” amongst states.38 Early notions of peace through cooperation finally took root in 1945, with the creation of the U.N. “to maintain international peace and security,” which has since been ratified by 193 state parties.39 Even if power politics constitutes the intent behind the initial formation of international regimes, compliance with future un-calculated obligations leads to cooperation of international goals beyond the “myopic self interests” of states.40 International institutions exemplify Keohane’s vision of regimes as the “honest brokers” that enable “otherwise separate and distrustful entities – the buyer and the seller, or the two countries – to make a deal which they would both benefit from” by reducing uncertainty and risk in the transaction and increasing credibility and cooperation.41 For instance, the Geneva Conventions allow states to expect humane treatment of their civilians during wartime by obligating themselves to the same commitments, creating a “welfare-enhancing equilibrium.”42 Meanwhile, neorealists maintain that when states work within the international legal framework, this is not symptomatic of a genuine impact on state action but merely the phenomenon of states aligning their actions under the standards of behavior deemed appropriate by international institutions.43

Theoretical debate concerning international institutions and the presence of “equilibriums” or status quos is well illustrated by the current issues of law and use of force. Particularly problematic for the U.N. and for liberal theorists is the emergence of unauthorised use of force based on policies that “closely resemble, if not reproduce, imperialism.”44 These recent developments in the realm of regulated warfare and its peripheries is causing the world’s foremost international regime to hold steadfastly to its assumed functionality rather than undergoing a genuine process of institutional self-reflection. The U.N. needs to come to a more conclusive understanding of how it intends to react to contemporary use of force as representative of the inherent power structures of the world or as reflective of changing security concerns that should inform institutions of more effective routes to international peace and security. This process can be guided by insights provided by both neorealism and neoliberalism, as long as the fundamental debate about the “realities of state behaviour” remains cognisant of the “dynamic of difference” between ‘civilised’ and ‘uncivilised’ in the delicate balancing of law, politics, and ideological mechanisms of regulating violence.45

B. Questioning the effects of use of force by the United States and the North Atlantic Treaty Organisation

  Contemporary examples of the legal regulation of violence are concentrated around Article 2(4) of the U.N. Charter, which prohibits the “threat or use of force against the territorial integrity or political independence of any state,” except in circumstances of self-defence or U.N. Security Council authorisation under Chapter VII.46 While some international provisions, such as humanitarian law principles in the Geneva Conventions, enjoy overwhelming consensus, provisions on the use of force are “still being tested” in the international arena.47 In cases of Security Council authorisation of use of force, such as in Somalia, Rwanda, and Bosnia-Herzegovina, the provisions were used clearly and explicitly, utilising various humanitarian justifications.48 In situations of use of force in the absence of authorisation, it is feared – or in the viewpoint of neorealists, assumed – that ‘testing the waters’ of these provisions is a strategy of powerful states to “displace various doctrines of international law” rather than to genuinely experiment with their parameters of interpretation and application.49 This has been particularly evident in the use of pre-eminent force for the stated purposes of self-defence.

A commonly cited example of experimental use of force is the U.S.bombing of Taliban government buildings in Afghanistan following the terrorist attacks of 9/11. The U.S. proclaimed “Operation Enduring Freedom ”an act of self-defence under Article 51 of the U.N. Charter, buttressed by Security Council Resolutions 1368 (recognising “the inherent right of individual or collective self-defence in accordance with the Charter”) and 1373 (allowing for “necessary steps to prevent the commission of terrorist attacks”).50 As the invocation of Article 51 requires consideration of what are, for the most part, un-clarified principles of necessity and proportionality, the legal questions that arose in Afghanistan were mainly definitional.51 These questions included whether the actions of non-state terrorists can be imputed to harboring governments, and whether imputed rather than direct responsibility is sufficient for purposes of armed retaliation. The fact that the legality of unauthorised use of force is debated proves that the U.N. Charter has created a relevant “constitutional regime of legitimate justifications for warfare.”52 David Kennedy even proclaims that warfare itself “has become a modern legal institution.”53

In Nicaragua, the I.C.J. clarified (albeit, through a non-binding judgment) that any violations of the customary international law principle of non-intervention that involve the use of force, directly or indirectly, “constitute a breach of the principle of non-use of force in international relations.”54 This judgment was reaffirmed by the I.C.J. in Arrest Warrant, in which Belgium was prohibited from exercising its national law of universal jurisdiction in issuing an arrest warrant for Democratic Republic of Congo’s then-Minister of Foreign Affairs.55 Unfortunately, what these cases reveal is that any use of force to attempt to aid in overthrowing a government or to arrest a sitting head of state are violations of the principles of non-interference that also violate the provisions of the use of force. This leaves countless unforeseeable (and many foreseeable) circumstances where preemptive use of force may or may not be considered a violation of non-intervention and non-use of force. Consequently, the inevitable experimentation of law’s meaning and implementation reflects Keohane’s view of regimes as institutions of cooperation and coordination of policy rather than harmonious markets that “automatically facilitate the attainment of others’ goals.”56

In Afghanistan, the U.S. acted in the self-interest of survival, as is consistent with arguments from neorealism, but it was also acting according to “underlying legal norms that govern the relevant state of affairs.”57 The existing notion of pre-emptive self-defence is that it is possibly permitted if the threat of attack is “imminent,” unofficially defined as “instant, overwhelming, leaving no choice of means, and no moment of deliberation.”58 The U.S. is unilaterally expanding the interpretation of this vague concept of pre-emptive force to include “emerging threats,” yet such reinterpretation has yet to concretely produce broadened legal provisions, especially as U.S. force in Afghanistan can easily be characterised as a reprisal rather than self-defence.59 Regardless, the resort to language of law to describe and justify the use of force has “a profound impact on how the law’s intervention is shaped, or how the laws governing the transnational use of force are interpreted to accommodate a ‘war’ on terrorism.”60

A further example of use of force illustrates the conflicting obligations under Charter law not to implement use of force versus humanitarian obligations under customary international law – and arguably jus cogens – to intervene to protect or prevent human rights abuses. The North Atlantic Treaty Organisation’s unauthorised bombing of Yugoslavia in 1999,taken in response to the humanitarian crises of the Albanian Kosovars, overrode international law regulating the use of force. Yet, NATO successfully achieved what the U.N. Security Council failed to accomplish: the end of the Kosovo War. Even though NATO acted in the absence of a political consensus of states – particular U.N. states, that is – the use of force was normatively justified after the fact by its ability to successfully accomplish the desired outcome. With the “moral evaluation of intervention” concluding that the use of force was illegal but legitimate, the U.N. was faced with troublesome new perceptions of the organisation as not only irrelevant to international security but as a source of unnecessary obstacles to peace.61 However, it must be recognised that the reality of the NATO use of force was a result of competing layers of treaty law, Charter law, and customary law, which provide “normativity [that] is not a binary phenomenon but, rather, comes in degrees.”62

In the first example of Afghanistan, “a system of UN control seemed to co-exist with unilateral action,” with the U.N. giving asort of cryptic permission for U.S. use of force against the backdrop of the 9/11 attacks, without going so far as to legalise America’s actions.63 In the second example of Kosovo, unilateral action taken by U.N. member states admittedly placed doubt on the utility of the U.N. to achieve peace in the midst of humanitarian crises. These examples illustrate the indecisive nature of the U.N. in providing vague consentbut not authorisation for U.S. acts of military retaliation, and in legitimising without legalising use of force when humanitarian goals are successfully pursued. One final example represents the clearest case of unauthorised use of force, and one which has generated the most cause for institutional reflection and possibly reform, as the actions of the U.S.in Iraq have arguably expanded the peripheries of institutional law beyond what the organisation can ambiguously condone or half-heartedly condemn. The 2003 U.S. invasion of Iraq, pursuant to the Congressional Authorisation for the Use of Force Against Iraq Resolution, was an effort to defend the country from weapons of mass destruction (WMD), and when WMD were not found, to instill democracy against the emerging ideological threat of terrorism from a ‘rogue state’.64 The justification was stated by the Bush Administration as the “right, not conferred but acknowledged, in the U.N. Charter, Article 51, to defend ourselves.”65 This interpretation steers law towards an applicability based on the ideology of the potential attacker rather than the nature of the suspected attack, effectively over-elaborating “the ambivalences and uncertainties” in use of force provisions and attaching the laws of military forceto “defensive imperialism.”66 Although genuine national and collective security concerns are certainly at issue with regards to terrorism, the U.S. decision to invoke Article 51 as a convenient legal framework to promote democracy not only misuses the institution, it harms the legitimate aims of stopping the “war on terror” by involving far-fetched connections to legality.

U.S. use of force can also be considered a hegemonic extension of the “American exceptionalism,” a belief in exceptional freedom and democracy for the American people, which strengthened in the twentieth century and may have contributed to “a crusade for human rights in US foreign policy” in the twenty-first century.67 This viewpoint would be considered under realist notions as a power play to envelope the world into an Americanised political philosophy using international legal mechanisms.68 However, “American exceptionalism” also reflects concurrent aims of national security and human rights in a two-toned implementation of pre-emptive self-defence and pre-emptive ‘civilising’, which resembles the liberal concept that security, peace, and human rights are not simply parallel goals to be achieved by international institutions, but are dependent upon one another.The continued relevance of the U.N. and international institutions generally is not contingent upon legalising every “American doctrine,” but on effectively modifying use of force provisions to reflect the genuine security threats entrenched in controversial humanitarianism and possible neocolonial ‘civilising’.69 To put it in neoliberal terms, the U.N. as the “honest broker” needs to be updated on the terms of the deal being sought by the parties to the transaction, with an eye towards the foundational ideologies of its own institutional structure, as well as the theories that explain and instruct institutional purpose.

III. The Age of Modernity: Current challenges to the United Nations’ relationship with modern security and collective peace,

A. Contextualisation of legal provisions to meet twenty-first centurysecurity threats

 International law has come a long way in disproving Louis Henkin’s criticism of the discipline as being “largely irrelevant” in a world where nations almost always conform to legal principles.70 Even in circumstances of unauthorised use of force in ideological battles, states aligned against terrorism have offered different definitions, usages, and categorisations of law, but have never “sought to dismantle the existing system of international law.”71 However, as described above, traditional distinctions of legitimate “pre-emption against an imminent threat” and illegitimate “‘preventive action’ taken against a developing capability” are dissolving with the blurred lines between war and potential impending war in the age of modern terrorism.72 If the U.N. is intent on remaining a facilitator of collective security through legal and diplomatic frameworks, it must respect when non-legal factors drastically change the factual circumstances and sources of global violence, such as the possibility of WMDs and the prominence of non-state actors. Instead of engaging in a “political standoff” with its membership, the U.N. should genuinely reflect upon state behaviour as signifying modern realities of international security.73

America’s attack on Iraq in 2003 is a prime example of states carving out exemptions to un-modernised international law, even though international condemnation may prove that expansion of legal principles is “not infinitely elastic.”74 The U.N., as seen from a liberal regime standpoint is an institution charged with revising its provisions to meet the changing needs of facilitating international peace and security. Alternatively, the U.N. viewed from neorealism is simply showing its colors as a political power structure whenever it refuses to either change the status quo of violence-regulating provisions or to fully chastise non-compliant, powerful states.Anne-Marie Slaughter looked favourably on the Bush Administration’s recognition ofU.N. inefficiencies in “address[ing] the threats of the post-Cold War era.”75 She then suggested that the U.S. take more prominent steps to encourage Charter reform following what she deemed a “moment of victory in Iraq.”76 Such windows between acts of warfare are where the revision of laws can enjoy some momentum “before new conflicts skew negotiating positions.”77 The Bush Administration may not have intended to enter the realm of institutional reform with its unilateral expansion of interpretation of the use of force, however, the discourse of humanitarianism and human rights attached to the rhetoric of national security “inevitably gets one into the domain of international law and organization.”78 Therefore, even discourse unintentionally combining “[u]nilateral assertions of hard power” with the broad justification of humanitarian ideals and defence necessarily forces a shift in the functional usage of the organisation associated with the tasks of both collective peace and security.

The battle of legal reform lies not only with timely insistence of influential states, but with the ability of the U.N. to acknowledge Charter reform as a method of bridging its multi-functional mandate rather than as a threat to the legitimacy of its provisions or purpose. Unfortunately, international lawyers and political actors generally respond to any needed changes in the law with an abashed rejection out of a duty to “defend existing prescriptions, whatever the consequence.”79 Some efforts have been made with the 2004 U.N. High-Level Panel on Threats, Challenges and Change formulating a set of circumstances where pre-emptive use of force could be possible: seriousness of threat, proper purpose, last resort, proportional means, balance of consequences, and chance of success.80 However, such action would still require Security Council authorisation. It has also been suggested that international law might be interpreted to permit use force against aggressors whose past acts of violence give reason to justify “preemptive force.”81 Despite creative and pragmatic designs for legal reform, contextualisation is further complicated by the fact that the Security Council is burdened by questions of its own power to pass resolutions that reform Charter provisions, and the ability of its actions to be reviewed by the I.C.J.82 If the Security Council lacks power to make such revisions, an official amendment to the Charter would require two-thirds majority of the General Assembly, as well as ratification by two-thirds majority of all U.N. members, including all Security Council members – an improbability, to put it lightly. Customary law could, in theory, supplant Charter provisions, but this is dependent on state action, opinion juris, and the slow process of crystallisation into customary international law.83 Other possible clarifications of the definition of the useof force may come from the I.C.C.’s recently defined crime of aggression.Language determining the “character, gravity and scale” of an act of aggression under the Rome Statute could possibly give clues to what is meant by “gravity, scale and effects” in defining “armed attacks” for purposes of triggering the right to self-defence under the U.N. Charter.84

In addition to definitional, procedural, and internal challenges, the modernisation of use of force provisions must contend with the fact that law as an institutional discipline may have engrained itself too closely in the language of war and politics. Law as “a strategic instrument of war,” also known as “lawfare,” causes the discipline to become inseparable from the occurrences it is meant to reflect and guide.85 The result is a great debate about collective peace and legal regulation of violence “staged in the vocabulary of the Charter, [where] a great deal is lost.”86 Kennedy believes that rediscovering the line between law and war will require: “Recapturing the human experience of responsibility for the violence of war.”87 The U.N.’s continued value in conflict regulation will depend on its ability to recognise that adjustments in its provisions are not an admission of a weak legal regime but of a framework that inevitably demands revision.

The shared understanding between neorealism and neoliberal institutionalism that states are the main actors in the anarchic international order can help to create a more accurate picture of the most pragmatic direction for institutional reform of use of force provisions, provided that both theories retreat from the extremes of state power and ideal functionality. The world of modern conflict contains new security threats tied to legitimate concerns for democracy and universal human rights – both of which are becoming slowly and perilously disconnected from the institutional framework meant to ensure their effective achievement. Institutional legal reform will need to be accompanied by updated theoretical analyses of state action that can help to inform institutional change in a productive way rather than by promoting the ineffectiveness of the institutional framework by insisting on its maintenance of state power or functionalities that are infinitely sufficient to facilitate peace in everyera ofwarfare. The progression of useful theories and contextualised use of force provisions will meet further challenges posed by the institution’s underlying necessity of legal distinctions and legal peripheries, making legal reform an understandably delicate process that must be undertaken with due caution to avoid tearing the regime irreparably from its roots.

B. Modern “exclusions” of international law that necessarily define legal peripheries and test institutional purpose

  By the seventeenth century, Grotius had already learned the trick of maintaining international law’s relevance and impact in international politics by envisioning a world order that bent with the flexibility of human law instead of breaking under idealistic moral principles of natural law.88 The U.N. has, in many regards, allowed international security to “progress where possible,” as envisioned by Grotius, and fall back upon strict use of force laws where normative ideals of collective security are not yet attainable.89 However, the gradual progression of use of force interpretation has been hindered not only by institutional hesitancy and by the extreme integration of law and war (a product of international legal institutions’ own creation), but by terrorists as a possibly necessary ‘other’ — a demarcation critical to preserve categories of legality. Therefore, the process of contextualising use of force provisions requires thinking critically and honestly about the underlying goals of the U.N. as inclusive or exclusive. This analysis echoes the earlier comments concerning the remnants of inclusion-exclusion ideologies present in the theoretical divide of neorealism and neoliberal regime theory.

In considering institutional legal reform, it is vital to question whether the international cooperation that the U.N. seeks to facilitate is a version of the “perpetual peace” that Kant famously described in the late eighteenth century – a peace sustained by the free, republican states and a “law of world citizenship” – or a version of peace predicated upon the assumption that some actors will always remain ‘uncivilised’, and therefore, constantly threaten global security.90 In order for the U.N. to bridge its competing functions of securing peace while regulating war, legal contextualisation in the absence of a deeper recognition of institutional goals will not suffice. In essence, it is not enough to view the U.N. as the “honest broker” and to update him on the terms of the negotiations without assuming that the broker, however honest, has a story of his own. A theoretical discussion of law’s role in the international order must not be afraid to acknowledge that Western ideologies wrote the script, however conspicuously, for the “frame of reference” for modern international law, including contemporary use of force provisions:

…the laws of war became central to international law’s self-image and still retain a unique place in the framing of a distinct reformist sensitivity, not to mention the discipline’s relatively good conscience.91

Consequently, realists critique international law as the “well-rehearsed hypocrisy of a European-centric universalism” that remains oblivious to profound exclusions in the international order.92 But these “exclusions” are becoming difficult to ignore, as traditional incentives and deterrence mechanisms of international treaties and judicial enforcement bodies have little effect on non-state belligerents that neither benefit from nor are held hostage by these agreements.93 In the eighteenth century, proscribing the actions of pirates amounted to an “imperial project” in controlling the behavior of ‘others’ that lay on the periphery of international law.94 Similar challenges today frustrate the U.N.’s aims of collective security and definitions of legitimate self-defence in a world of terrorists hovering at the edges of the legal order.95 In the absence of a true legal definition of terrorism, the International Convention for the Suppression of the Financing of Terrorism has taken the approach of indirectly constricting the behavior of terrorists by imposing a duty on state parties to regulate corporations knowingly or recklessly funding terrorist activity.96 Terrorism could also potentially be prosecuted as a crime against humanity in the I.C.C., if only universal jurisdiction was not such a seemingly insurmountable obstacle to international criminal law’s ability to arrest non-state actors.97

Another perspective on the challenge of non-state actors is to concede that exclusions to international law necessarily maintain the “founding dichotomy between ‘civilisation’ and ‘savagery’” dependent on the presence of ‘others’.98 Whether the ‘others’ are “war criminals, terrorists or unlawful combatants,” their existence defines the ‘other’ as well as ‘legality’ as the counter-image to the ‘other’.99 This idea echoes Carl Schmitt’s warning against completely erasing the ‘political’ for the sake of the ‘legal’ or ‘social’, which diminishes the ability to identify and control enemies.100 The process of legal reform should, therefore, tread carefully before “abandoning the world of clear virtue and sharp boundaries,” which may risk any existing capability to obtain security through established legal categories and distinctions, however vague, of “armed attack” and “individual or collective self-defence.”101

The role of neorealism and neoliberalism in this redrawing of use of force provisions will be to aid in an understanding of how U.N. methods can be altered towards improved functionality while respecting the realities of power and underlying inclusive-exclusive foundations of international institutions. The contextualisation of use of force provisions and the impact of institutional law on the modern ‘other’ will be furthered by a realisation that the “primitive [is] not so much outside of international law awaiting its ordering ministrations, but within the very heart of the discipline,” including in the theories generated to describe the discipline and its structures.102

C. The art of redrawing institutional functionality through balanced theoretical understandings

  Woodrow Wilson believed that the League of Nations, despite its failings, established “the conviction that collective security represents a brand of international morality vastly superior to that incorporated in the balance of power system.”103 What is revealed through the examples of the use of force in modern contexts is how the impact of international institutions on state action is challenged by its own hesitancy to acknowledge what Wilson failed to consider: Collective security and balance of power may actually be equal and co-dependent goals, and that perhaps neither are connected to morality as much as legality. The answer to productive and realistic legal reform in use of force provisions might just be found in this realisation that the competing theoretical arguments about international regimes are not actually working against each other as much as originally believed, and that both inform more than explain institutional purpose.

Although international law and international relations theorists dispute whether the discourse of “humanity law” is a transformation of political diplomacy to legal legitimacy, both sides to the conversation are effectively “speaking the same language and playing the same game.”104 The fact that sanctions are considered an important incentive in the state internalisation of human rights norms, which leads to state cooperation of collective peace and security, shows that the liberal school of thought agrees with the same basic reasoning for legal compliance found in realism and neorealism.105 Additionally, in appreciating that international security “is a feeling as much as a fact,” international institutions built to promote peace can also acknowledge that allowance and regulation of conflict and violence are an important component in the achievement and sustainability of that peace.106

Perhaps the tension between neorealism and neoliberal institutionalism, especially in regards to use of force and international peace and security, is perhaps more competitive in their solutions than in their structural ideologies concerning the challenges of modern conflicts. Twentieth century American theologist Reinhold Niebuhr, a critic of utopianism, spoke ahead of his time in stating:

The idealists erroneously imagine that a new situation automatically generates the resources for the solution of its problem. The realists erroneously discount the destructive, as well as the creative, power of a revolutionary situation.107

As such, international theorists and U.N. lawyers alike must acknowledge that international institutions are both impactful upon state action, informed by state action, and that this two-way clash of ideals is not merely understood in terms of neorealism and neoliberalism but also influenced and directed by both theories.

The rationalist nature of both neorealism and regime theory is criticised as modeling the world upon a game-theory model and pay-offs without ever truly focusing on the identity of the actors, instead assuming that the ‘self’ is international and the ‘other’ is domestic.108 The clash of ‘civilisation’ in this essay certainly includes the military and ideological interaction between Western powers and terrorist regimes. But perhaps ‘delinquent’ states and international institutions can be seen as the separate ‘civilisations’, due to their separate communities of meaning (national security/collective security), and practice (unilateral force/multilateral force).109 International Studies professor Peter Katzenstein states that when civilisations interact, the resulting encounter can include violent clash, cultural imperialism, or transcivilisational engagement.110 The characterisation of an inter-civilisational outcome depends upon an analysis of the interaction that is generated in terms of multiplicities – multiple actors, traditions, institutions, and processes. Katzenstein adds that multiple theories are just as important to the process of analysing clashes of civilisation because these theories convince observers of what the interaction means or should mean.111 Consequently, the modernisation of theories would affect not only an understanding of state-regime inter-civilisational interaction, but would actually inform and guide this interaction through different paths of progression and engagement.

In spite of power dynamics and unattainable expectations of pure or permanent peace, it is possible for the U.N.to provide functional pathways to towards collective peace and security in the future, but only if it allows itself to be informed by modern theoretical understandings of the clash between regimes, states, and ‘others’ in modern warfare. The international order post-World War I was erroneously based in the assumption that states needed to be rational actors for a system of cooperation to be effective. Today, the modern global order could operate more successfully upon the notion that it is not the actors as much as the goals of state-regime interaction that must be rational. These goals can be steered towards rationality through means of positive theoretical manipulation. However, the necessary productive balance of neorealism and neoliberal institutionalism depends on theorists’ ability to interpret the demands of states and the U.N. in the context of the “multiple modernities” represented by contemporary security threats, contextualisation of the use of force, and the aims of collective peace.112 This part-theoretical, part-empirical project of re-picturing collective security and peace within legal institutions remains a worthy task, as “the Charter continues to be our best hope for preserving peace and achieving effective international cooperation and governance.”113

IV. Conclusion

 The U.N.’s continued usefulness in international security issues is internally challenged by its steadfast refusal to either confront its foundational roots of exclusion-inclusion of the ‘other’, or to contextualise its provisions for fear of loss of legitimacy. Despite these shortcomings, there remains a “strong belief that the normative provisions matter…and that the institutional mechanisms will work.”114 The examples of use of force by the U.S. and NATO certainly invoke doubts as to the cooperative framework of institutions that are prone to stalling or deadlock during key points of world conflict and human tragedy, strengthening the neorealist vision of the states as unitary egotists and institutions as structures housing fictional powers of influence over anything beyond political power balances. However, the U.N.’s future utility in international conflict and peace is not impossible. If the U.N. can redraw its collective security standards based, in part, upon the U.S. survivalist behaviour that regimes traditionally condone, it can perhaps utilise its “flexible jurisprudence” to find an effective middle ground between traditional regulation of use of force and modern security interests of states.115

It is arguably a positive development that the issue of national security through unilateral means is forcing the U.N.to come to terms not only with the limits of the Charter provisions but also the conflicting functions of the institution. These multiple functions, combined with various unnecessarily competitive theories as to regime purpose, are mired in Westernised ideologies that are seldom realised for their full impact on the difficulties of contemporary legal reformation. The capacity of the U.N. to facilitate future international peace and security will be greatly determined by its ability to develop its Charter law consistent with the needs of modern warfare, while remaining cognisant of the distinctions upon which international law and institutional goals were founded. Vital to this process of regime self-reflection will be the modernisation of neorealism and neoliberal institutionalism, which, in realising their commonalities, can begin to redraw a more accurate picture of modern interactions between international institutions, its members, its exclusions, and the legal provisions that seek to bind them together in regulated warfare for the objective of collective peace.

*Janet McKnight holds a B.A. from the University of California, Berkeley, a J.D. from Tulane University Law School, and is currently studying for her L.L.M. in Human Rights, Conflict and Justice at the School of Oriental and African Studies. She can be contacted at: [email protected]. Janet would like to give great thanks to Professor Chandra Lekha Sriram for her assistance with this article.
1 John Mearsheimer, “The False Promise of International Institutions” (Winter 1994/1995) 19, 3 International Security 4-59, 40-41.
2 Kenneth Abbott, “International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts” (Apr. 1999) 93, 2 AHIL 361-379, 364.
3 Anne-Marie Slaughter Burley, “International Law and International Relations Theory: A Duel Agenda” (Apr. 1993) 87, 2 AMLJ 205-239, 207, 227.
4 Chandra Lekha Sriram, “International Law, International Relations Theory, and Post-Atrocity Justice: Towards a Genuine Dialogue” (May 2006) 82, 3 International Affairs 467-478, 469.
5 Mearsheimer, “The False Promise of International Institutions” 7.
6 Francis M. Deng, “The Guiding Principles on Internal Displacement and the Development of International Norms,” in Thomas Biersteker, Peter Spiro, Chandra Lekha Sriram and Veronica Raffo (eds), International law and international relations: Bridging theory and practice (Routledge 2007) 143.
7 Ruti G. Teitel, Humanity’s Law (OUP 2011) 42.
8 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (CUP 2001) 298, 303.
9 Andrew Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe” (Spring 2000) 54, 2 IO Journal 217-252, 222-23.
10 Mearsheimer, “The False Promise of International Institutions” 40.
11 ibid 40.
12 ibid 13, 40.
13 ibid 9-10.
14 Richard A. Falk, “Kosovo, World Order, and the Future of International Law” (Oct. 1999) 93, 4 AJIL 847-857, 848.
15 Sriram, “Towards a Genuine Dialogue” 470, 472.
16 Steven R. Ratner, “Jus in bello and jus ad bellum After September 11” (Oct. 2002) 96, 2 AJIL 905-921, 916.
17 Slaughter Burley, “A Duel Agenda” 217.
18 Koskenniemi, The Gentle Civilizer of Nations 335.
19 ibid 438.
20 Ratner, “Jus in bello and jus ad bellum” 906.
21 Slaughter Burley, “A Duel Agenda” 206.
22 ibid 219.
23 Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (PUP 1984) 59.
24 Slaughter Burley, “A Duel Agenda” 219; Keohane, After Hegemony 89.
25 Keohane, After Hegemony 85.
26 Koskenniemi, The Gentle Civilizer of Nations 267.
27 ibid.
28 Dapo Akande, “The Contribution of the International Court of Justice and the Law of the Use of Force,” EJIL: Talk!, November 18, 2011, accessed 6 March 2012.
29 Gerry Simpson, “Pirates: The Margins of International Law” [lecture] (School of Oriental and African Studies, London, United Kingdom, November 29, 2012).
30 Koskenniemi, The Gentle Civilizer of Nations 292.
31 ibid.
32 ibid 311.
33 ibid 292.
34 Immanuel Kant,“Perpetual Peace: A Philosophical Sketch” (1975).
35 Pamela A. Jordan, “Does Membership Have Its Privileges?: Entrance into the Council of Europe and Compliance with Human Rights Norms” (2003) 25 Human Rights Quarterly 660-688, 665.
36 Elbridge Colby, “How to Fight Savage Tribes” (1927) 21 AJIL 279-288, 280.
37 Abbott, “International Relations Theory” 377.
38 ibid.
39 U.N. Charter, Article 1(1).
40 Keohane, After Hegemony 107-108.
41 Harry Kreisler, “Theory and International Institutions: A Conversation with Robert O. Keohane” Conversations with History Series, Institute of International Studies, University of California, Berkeley (9 March 2004), accessed 27 December 2012.
42 Abbott, “International Relations” 369.
43 Martha Finnemore, “Constructing Norms of Humanitarian Intervention,” in Katzenstein, Peter J. (ed), The Culture of National Security: Norms and Identity in World Politics (Columbia UP) 4.
44 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2004) 273.
45 ibid 55, 274.
46 U.N. Charter, Articles 2(4), 42, and 51.
47 Ratner, “Jus in bello and jus ad bellum” 916.
48 Olivier Corten, “Human Rights and Collective Security: Is There an Emerging Right of Humanitarian Intervention?” in Alston, P. and Macdonald, E. (eds), Human Rights, Intervention, and the Use of Force (OUP 2008) 91.
49 Antony Anghie, Imperialism, Sovereignty and the Making of International Law(CUP 2004) 297.
50 U.N. Security Council Resolution 1368 (2001) Threats to international peace and security caused by terrorist acts, 12 September 2001, S/RES/1368 (2001); U.N. Security Council Resolution 1373 (2001) On threats to international peace and security caused by terrorist acts, 28 September 2001, S/RES/1373 (2001).
51 Ratner, “Jus in bello and jus ad bellum” 906-7.
52 David Kennedy, Of War and Law (PUP 2006) 79.
53 ibid 5-7.
54 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) [1986] ICJ Reports 14, para. 209.
55 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] 2002 ICJ Reports 3, paras. 54, 58.
56 Keohane, After Hegemony 51.
57 Ratner, “Jus in bello and jus ad bellum” 910.
58 Anghie, Imperialism, Sovereignty and the Making of International Law276 [quoting Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington (April 24, 1841), 29 British and Foreign State Papers 1840-1841 (London: James Ridgeway & Sons, 1857), 1129-1139, 1138].
59 ibid278.
60 ibid275 [quoting Tawia Ansah, “War, Rhetoric & Norm-Creation in Response to Terror” (2003) 43 Virginia Journal of IL, 797-860, 799].
61 James Crawford, “The Right of Self-Determination in International Law: Its Development and Future” in Alston, Philip (ed), Peoples’ Rights (OUP 2001) 43.
62 Ratner, “Jus in bello and jus ad bellum” 914, 916.
63 Anghie, Imperialism, Sovereignty and the Making of International Law 300.
64 ibid 277.
65 “Striking First: President Bush’s Preemptive Strike Policy” PBS Newshour, July 1, 2002 accessed 1 March 2013.
66 Anghie, Imperialism, Sovereignty and the Making of International Law292, 302.
67 David P. Forsythe, Human Rights in International Relations (3rd edn, CUP 2012) 207.
68 ibid 209.
69 Ratner, “Jus in bello and jus ad bellum” 921.
70 Louis Henkin, How Nations Behave: Law and Foreign Policy (2nd edn, published for the Council on Foreign Relations by Columbia UP 1979) 88, 93.
71 Anghie, Imperialism, Sovereignty and the Making of International Law307.
72 “U.S. Adoption of a New Doctrine on Use of Force,” in “Contemporary Practice of the United States Relating to International Law” (Jan. 2003) 97, 1 AJIL 677-700, 205.
73 Slaughter, “A Chance to Reshape the U.N.”
74 Ratner, “Jus in bello and jus ad bellum” 921.
75 Anne-Marie Slaughter, “A Chance to Reshape the U.N.,” Washington Post, 13 April 2003, B7.
76 ibid.
77 Abbot “International Relations Theory” 369.
78 Forsythe, Human Rights in International Relations215.
79 W. Michael Reisman, “Assessing claims to revise the laws of war” (Jan. 2003) 97, 1 AJIL 82-90, 83.
80 Report of the High-level Panel on Threats, Challenges and Change, entitled “A more secure world: Our shared responsibility,” U.N. Doc. A/59/565 (2 December 2004), 3.
81 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (4th edn, Basic 2006) xv.
82 Anghie, Imperialism, Sovereignty and the Making of International Law302.
83 Corten, “Human Rights and Collective Security: Is There an Emerging Right of Humanitarian Intervention?” 135.
84 Akande, “The Contribution of the International Court of Justice and the Law of the Use of Force.”
85 Kennedy, Of War and Law125, 132.
86 ibid 162.
87 ibid 169.
88 Steven Forde, “Hugo Grotius on Ethics and War” (Sept. 1998) 92, 3 APSR 639-648, 641-44.
89 ibid 645.
90 Kant, “Perpetual Peace: A Philosophical Sketch.”
91 Frederic Mégret, “From ‘savages’ to ‘unlawful combatants’: a postcolonial look at international law’s ‘other’,” in Orford, A. (ed), International Law and its “Others” (CUP 2006)32, 36.
92 ibid 4-5.
93 Reisman, “Assessing claims to revise the laws of war” 86.
94 Simpson, “Pirates: The Margins of International Law.”
95 ibid.
96 International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, U.N. Doc. A/RES/54/109 (9 December 1999).
97 Geoffrey Robertson, Crimes Against humanity: The Struggle for Global Justice (4th edn, Penguin 2012) 673.
98 Mégret, “From ‘savages’ to ‘unlawful combatants’ 37.
99 ibid 37.
100 Koskenniemi, The Gentle Civilizer of Nations 430-31.
101 Kennedy, Of War and Law 116; U.N. Charter, Article 51.
102 Anghie, Imperialism, Sovereignty and the Making of International Law95.
103 Inis L. Claude, Power and International Relations (Random House 1962) 116.
104 Kennedy, Of War and Law 160, 166.
105 Moravcsik, “The Origins of Human Rights Regimes” 225.
106 Kennedy, Of War and Law 4.
107 Reinhold Niebuhr, The Children of Light and the Children of Darkness (Charles Scribner’s Sons 1944) 176.
108 Peter Katzenstein, “Civilizations in World Politics: Beyond East and West” [lecture] (Centre for International Studies and Diplomacy, International Relations Speaker Series, The School of Oriental and African Studies, London, United Kingdom, 14 March 2013).
109 ibid.
110 ibid.
111 ibid.
112 ibid.
113 Richard B. Bilder, “The Implications of Kosovo for International Human Rights Law”in Alston, P. and Macdonald, E. (eds), Human Rights, Intervention, and the Use of Force (OUP 2008) 152.
114 Benedict Kingsbury, “Claims by Non-State Groups in International Law” (1992) 25 Cornell Int’l LJ 481-513, 512.
115 Kennedy, Of War and Law 80-83.