International legal consensus and the control of excess state violence.
The prevailing theory of international law views voluntary state consent as the primary if not the sole foundation for international legal obligation. Political realists, liberal internationalists, neoliberal institutionalists, and legal positivists all agree that states are required to adhere only to those international legal commitments that they voluntary adopt through their domestic political systems. Such an approach preserves a state's right to reject any principle or obligation that it does not deem to be in its interest to adopt. At the same time, it also strengthens the international legal order by committing states to adhere to those rules that they themselves have agreed to follow. Thus, a consent-based international legal system facilitates cooperation by enabling states to pursue common goals without sacrificing their sovereignty. As a result, consent-based legal norms have dominated international law for more than a century.
Recent trends, however, suggest that foreign policy officials and legal analysts from many states have begun to question whether this is sufficient for addressing some of the most vexing controversies in international relations. For example, can states legally practice genocide if they are not parties to the 1948 genocide convention? Can they legitimately support the use of terrorism against civilians by refusing to adopt international legal agreements that ban the practice? Can a nation's army circumvent the laws of warfare by declaring that the rules do not apply in a particular situation? Can governments allow the practice of slavery within their societies if they have not signed treaties banning it? Can they legally use chemical, biological, and nuclear weapons if they do not sign the biological and chemical weapons conventions? Increasingly, political leaders from a wide range of states have been answering these queries in the negative, suggesting limits to the doctrine of consent in international law. Indeed, in a major shift from twentieth-century practice, states are increasingly recognizing a limited body of international law as having universal applicability considered binding on all states regardless of whether they are parties to specific agreements or whether they are based on customary practice. This raises fresh questions about the way international institutions seek to address the uneasy balance between sovereignty and coexistence in world politics.
In this article, I seek to explain how universal legal norms can coexist within a consent-based legal order by offering a theory of international law that merges the legal with the political. (1) In the following pages, I argue that qualitative changes in the form of global governance through the proliferation of multilateral institutions are expanding the theoretical underpinnings of international law and its role in contemporary world politics. Specifically, within limited but well-defined areas of international law, states have begun to recognize the authority of collective international consensus over individual state consent as the source of certain legal rules. In developing a theory of consensus-based international law, I try to explain the existence and growth of legal rules that are based not on individual state consent, but rather on collective agreement within the international community of states. (2) I do not argue that consensus-based legal norms are replacing consent-based rules, nor do I claim that they provide the bulk of them within the body of international law. Rather, I maintain that they are becoming increasingly significant in influencing the way international law and international relations are practiced in the twenty-first century.
More specifically, I argue that states have developed a consensus around the legal control of what I call "excess state violence" and that political leaders are increasingly accepting this as universally binding. I define excess state violence as a level of violence exceeding that which government officials and diplomats consider to be legitimate for pursuing national interests. This includes crimes against humanity, genocide, and grave breaches of the laws of war. Building on a foundation of multilateral "lawmaking" treaties, resolutions passed by authoritative bodies within international organizations, and peremptory legal norms, political leaders have begun to regard these practices as international crimes that hold regardless of whether particular states have specifically agreed to ban them.
I begin by discussing the theoretical differences between consent and consensus-based international law and discuss how consensus-based legal norms have evolved as a mechanism for resolving the tension between law and politics that is inherent in an anarchic system of sovereign states. I then build a prima facie case that such norms are emerging in the area of controlling excess state violence. In doing so, I explain the conditions under which these changes have occurred and what it will take for them to expand. Finally, I discuss the implications for theories of international law and its relationship to international relations scholarship. In particular, I discuss how this argument could have significant implications for the role of international law in regulating state violence in the twenty-first century.
Determining the Source of International Legal Obligation
The Law of Nations (commonly known as public international law) is the body of legal rules that regulates the behavior of states and other internationally recognized actors across juridical borders. For hundreds of years its principles have provided a mechanism for government officials and diplomats to define and evaluate acceptable state behavior. Like most forms of cooperation in international relations, international law is an institution created to achieve certain common goals and provide for greater predictability of behavior. Unlike other cooperative institutions, however, it is based on generalized principles of conduct that are authoritatively binding on governments in a wide variety of circumstances. Following these rules is not simply a policy choice for political leaders, but an obligation that is fundamental for international coexistence and stability. In many cases, political leaders and diplomats regard those who flagrantly violate these rules to be committing a hostile act not only against a particular state or group of states, but against the international community as a whole. (3) For this reason, governments are careful in deciding which rules they will adopt as legal obligations.
At the same time, since international law operates within an environment that lacks a constitutional foundation, there is no single body of legal principles from which one can develop a comprehensive set of rules and obligations. Rather, international law is derived from a highly diverse collection of treaties, customary practices, and common legal principles that states accept as binding. Moreover, unlike most domestic legal systems, the international community lacks a central power with the authority to enact legislation, interpret rules, and punish transgressors. Given these circumstances, the source of states' legal obligations in international affairs has long been a major issue in determining the extent to which particular rules are binding on governments. This is especially true in managing state violence.
Since at least the eighteenth century, international legal obligation has been based primarily on voluntary state consent. Modern consent theories hold that states are obligated to follow only those rules and principles that they explicitly agree to accept. (4) Specifically, these theories argue that the foundation of international law rests on an assortment of customary practices and legally binding "contracts" that commit the signatories as long as they remain parties to the specific treaties or conventions. Treaty commitments are made on a purely voluntary basis, and states choose individually which ones they wish to adopt as legal obligations and which ones they do not. Although these commitments are binding while a state remains a party to the treaty, all parties can ultimately opt out so long as they follow the proper procedures for treaty withdrawal. This is because consent theories hold that treaties are not like legislation and therefore do not constitute a source of universal law. They bind only those who specifically sign and ratify them. (5) Since states are not beholden to any higher principle, their treaty obligations do not go beyond the text or, in the case of customary law, the specific acts of state practice. This is known as "positive law." (6)
From this perspective, customary law implies consent inasmuch as it is derived from actual state practice that has not only continued consistently over time but also been publicly accepted as a legal obligation by a wide range of states. This concept of opinio juris sive necessitatis (an unambiguous belief by state officials that a particular practice is in fact a legal obligation) makes law based on practice a consensual act, particularly since states can exempt themselves from customary law by maintaining a persistent and consistent objection to it over a period of time. Thus states implicitly signal their consent through acquiescence.
For most of the twentieth century, political leaders and international law scholars recognized state consent as the primary, if not the sole, source of international legal obligation. Yet even as positive international law appeared to dominate diplomatic and legal circles, there were signs that foreign policy officials were also considering legal norms that moved beyond a strict consent-based foundation. In attempting to deal with discrete problems in international relations, such officials contemplated ways of creating opinio juris through collective deliberation among the most active and influential members of the international community. This was facilitated by three new developments in global governance: (1) the proliferation of universal membership organizations with broad mandates to address a wide range of issues in global politics; (2) the increased use of collective deliberation among a wide range of states as the legitimate process for making decisions in international affairs; and (3) the domination of mulilateralism as the legitimate institutional form of cooperation. (7)
The end of World War II saw a dramatic increase in the number and degree of intrusions of intergovernmental and semiautonomous organizations at both the international and regional levels. Many of these organizations require their members to sign legally binding charters committing them to a process of consultation and collective decisionmaking on a wide range of issues. (8) This has reduced the range of actions that states could legitimately pursue purely on the basis of self-help. It also commits those states that are part of the process (in the case of the UN, all states) to adhere to common principles that are legitimately derived through said process. In this way, the development of global governance structures that requires formal deliberation among the members of the international community has provided a permissive condition for the evolution of a new type of rule, one that is rooted not in individual will, but in a convergence of international opinion. These rules can be referred to as "consensus-based" legal norms.
A theory of consensus-based law holds that under certain conditions, international legal obligation can be derived from a widespread agreement among the members of the international community over the authority of basic principles underlying specific legal rules. Once developed by states through a series of legitimately accepted multilateral political processes, such legal norms can become part of general international law applicable to all states, much in the same way that customary law is considered to be universally binding after it has been accepted as such by the international community. Unlike customary law, however, consensus-based norms are not rooted in a long-standing practice, nor can states separate themselves from a legal obligation by maintaining a persistent objection. In fact, consensus-based international law turns customary law on its head; the norm precedes the practice rather than the other way around. Thus, consensus international law does not reflect state practice as much as it creates it. This is a significant point, because political leaders create some of the most important consensus-based legal norms (such as the prohibition of genocide) precisely because the practice of states does not conform to the principle.
The source of consensus-based legal norms is neither random nor arbitrary. Government officials and legal analysts derive them from a combination of the following: peremptory legal norms; multilateral lawmaking treaties; the charters of universal membership organizations; and a consistent set of resolutions passed by decisionmaking bodies of intergovernmental organizations.
First, legal analysts from a wide variety of states have begun to recognize some fundamental principles--known as peremptory norms--as legally binding on all legal subjects regardless of whether they have specifically consented to them on an individual basis. Peremptory norms (jus cogens) are defined as legal principles that are accepted and recognized by the international community of states as binding on all members in their relations with one another. (9) Thus, norms of jus cogens derive their status from fundamental values held by the international community. Violations of such peremptory norms are considered to shock the sensibilities of the international community and therefore bind the members of that community, irrespective of protest, recognition, or acquiescence. (10) For example, all states are bound to respect the universal principle of sovereign equality regardless of whether they have explicitly adopted this principle by signing a treaty. This is not a customary rule but rather a fundamental principle that underlies virtually all other rules. Similarly, since World War II, states have considered the conquest of territory to be a violation of a fundamental legal principle, even though no treaty exists banning this practice. (11)
In an odd twist, states have in fact consented to the idea that certain fundamental principles can override their consent with the adoption of the Vienna Convention on the Law of Treaties in 1969. Specifically, Article 24 states, "If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates." This principle was reaffirmed in the 1986 Vienna Convention on the Law of Treaties Between States and International Organizations. Consequently, the principle of jus cogens introduces some degree of political consensus into the interpretation and application of international law; since principles of jus cogens must be "accepted and recognized" by the broad community of states, they are created by consensus, rather than by individual state consent or natural law.
Second, since the mid-twentieth century there has been a growing trend to codify emerging legal norms into a form of universal law through the development of lawmaking treaties. Lawmaking treaties are multilateral agreements that articulate principles that states consider to be binding on all members of the international community, regardless of whether individual units explicitly consented to them through a formal ratification process. Malcolm Shaw argues that by virtue of their widespread support and acceptance, such treaties have an effect generally, rather than restrictively. These lawmaking treaties elaborate a common perception of international law in a given topic and establish new rules to guide states in their international conduct. (12)
According to Oscar Schachter, in order to be considered to be a lawmaking treaty, an agreement must be intended to regulate a particular kind of behavior that applies universally. In addition, it must articulate a rule formally adopted by an authorized body of an international organization. (13) Frederic Kirgis argues that such agreements should also fulfill at least one of the following conditions: (1) it codifies preexisting customary law; (2) it reflects general principles of law recognized by a wide range of states; (3) it crystallizes "emerging rules of law" (as opposed to simply codifying existing practices); and/or (4) it generates new custom by encouraging new practice. (14) Whereas the first two conditions are consistent with consent-based legal norms, the latter two suggest a broader application that moves beyond individual state consent. I consider those that fulfill the latter two conditions as constituting one piece of evidence for the existence of a universal legal norm based on international consensus. As I argue below, it is not the treaties themselves that bind nonsignatories, but rather the legal principles represented in the treaties. In this sense, lawmaking treaties provide only one--albeit an important one--piece of evidence for the existence of a universal legal norm based on international consensus.
Third, the charters of multilateral universal membership organizations usually contain principles that reflect a consensus around a particular set of political values in international relations. (15) Although these principles are not themselves legal obligations, they provide evidence of the original intent of the charters' authors and signatories. Since organizational charters are legal treaties, they are binding on the membership. As states join an increasing number of multilateral organizations, common principles that are consistently found in each of them can provide one piece of evidence for a legal consensus.
Similarly, unanimous or near-unanimous resolutions passed by decisionmaking bodies within various intergovernmental organizations can also provide a source of consensus-based international law. Although technically such resolutions are binding only on its members, in some cases they represent an international consensus that goes beyond the jurisdiction of the specific organization. Thus, it is not the resolution itself that is binding, but rather the principles that the resolution articulates. For example, the international legal prohibition against colonialism emerged neither from a treaty nor from customary international law. Rather, it can be traced to a unanimous resolution passed by the UN General Assembly, a body with no legal authority to create new international law. Thus, the assembly's Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514 [XV]) has been cited many times by a wide range of political leaders and legal analysts as the legal basis of decolonization. It cannot be considered part of customary law because at the time of its passage it did not reflect common practice; in fact, many of the great powers continued to hold colonies until the mid-1960s. Moreover, it emerged over a relatively short period of time (approximately a decade or so after the end of World War II). Although there is no treaty specifically outlawing the practice, most states have since considered it to be an obligation.
Although each of these sources individually may not offer evidence of consensus, in their totality they can demonstrate a consistent pattern of agreement on principles that are generally accepted by members of the international community. In particular, those principles that the members consider to be fundamental to the cohesion and progress of the international community would be binding on all legal entities (states) regardless of whether each state formally consented to specific provisions. This determination cannot be made by individual states nor by a subset of states, but rather it emerges through a process of deliberation and consultation within what Ian Johnstone calls "interpretive communities." Such communities consist of recognized political leaders--usually official delegates from participating states--operating within a multilateral organization that other states believe has the authority and competence to make judgments concerning legal obligation. (16) With a consensus-based legal norm, then, the power of consent is held collectively by the international community rather than individually by each state. (17) In these cases, collective agreement can override an individual objection; this is the crucial difference between consent and consensus.
Certainly many political scientists and legal positivists would have a problem with legal norms based on consensus, in part because consensus is itself difficult to measure. Unlike other forms of decisionmaking, consensus is based neither on a numerical majority (which can be defined) nor a specific command issued by a superior authority (which can be identified). In many ways this problem is similar to that of norm identification: how do we know when one exists, and how many political actors need to accept it for it to be considered legitimate? Martha Finnemore and Kathryn Sikkink's efforts to address this question can be helpful in determining the degree to which a consensus may exist around a particular set of principles. They suggest that we examine each norm's particular "life cycle" by tracing the process through which a critical mass of actors converges around a particular standard. This enables us to determine the "tipping point" after which agreement becomes widespread. (18) Once this is done, we look for patterns in behavior or discourse to uncover the degree to which states accept the norm. Significant and persistent objections can also be investigated. In terms of identifying the norm itself, Finnemore and Sikkink argue that norms usually leave an extensive trail of communication among actors that we can study. We recognize norm-breaking behavior because it generates disapproval and norm-conforming action because it produces praise. (19)
Similarly, we can identify the evolution of consensus in international law by studying, among other things, the following: (1) the substance of discussion and debate at international conferences where lawmaking treaties are developed; (20) (2) the discourse that is conducted within the deliberative bodies of formal international organizations such as the UN Security Council, the International Law Commission, and executive councils of regional organizations; and (3) the degree to which states and international organizations make reference to these emerging legal norms when making decisions and articulating policies. After tracing the development of the legal principle underlying a particular rule, we can further investigate how it is put into practice by multilateral bodies such as the General Assembly or Security Council. The most direct way of doing so is to study the resolutions and directives issued by these organizations as they attempt to address specific issues and conflicts that are brought before them. In addition, diplomatic correspondence, rulings by domestic courts, and executive orders issued by governments are also available for study. In general, the task is to determine whether there is a consistent pattern of agreement over specific obligations within various forums.
Foundations of Consensus-Based Legal Norms in International Law
Consensus-based legal norms challenge the volunteerist notion implicit in an international law system founded on state consent by requiring states to accept some obligations to which they may not have explicitly agreed. Of course, states already do this with customary law, but legal rules based on consensus do not require decades of practice before states are expected to adhere to them. In fact, in many cases they emerge precisely because much of state practice does not conform to the norm.
Because of this, the introduction of a consensus norm into a system based on voluntary state consent requires that certain conditions be met. First, there must be a convergence of views within the international community around a well-developed principle that states consider to be binding on all. This principle should be articulated within documents and multilateral institutions that states accept as authoritative. Second, there must be a widely accepted mechanism through which states can develop their collective understandings concerning which obligations are legally binding. Third, states must recognize the authority of some type of institution to interpret and implement these consensus principles.
The degree to which states have developed a convergence of views around a particular principle is an empirical one that must be evaluated on a case-by-case basis. In the following pages, I show that such a convergence has emerged in the area of excess state violence, but this does not mean that it will be easily replicated in other areas.
There is, however, growing evidence that the second criteria necessary for the development of consensus-based legal norms--the existence of a widely accepted process for creating new and/or amending existing international law--exists at least in a primitive form. Over the past half-century, states have developed a practice of holding UN-sponsored conferences to discuss, negotiate, draft, and ultimately sign multilateral conventions and lawmaking treaties that create new principles of international law. Although this does not approach the category of a "legislative body," it does provide a process through which states can develop a general consensus around a particular legal issue. The universality of the UN membership provides the foundation for its legitimacy. Thus, while the UN lacks the legal authority to create new international law, it often acts as a vehicle for drafting multilateral treaties and conventions that may do just that. Since these conferences are not provided for in the UN Charter, the multilateral agreements that they produce derive their legal authority neither from the organization itself nor from the obligations that flow from one's membership in it. Rather, it is the legitimacy attached to the world body that enables states to advance claims that certain agreements may be applied universally.
The implementation and enforcement of international law remains highly decentralized, relying primarily on domestic courts and the actions of individual governments. However, since the end of World War II, several institutional trends suggest some significant movement toward more collective approaches. The most important is the UN Security Council. In signing the UN Charter, states have not accepted a set of legally binding principles as much as they have agreed to the legitimacy of a legally binding political process. This is particularly true with regard to Security Council directives, which have the practical impact of law. (21) Certainly, states often act outside of the UN's mandates, and during the Cold War the Security Council was moribund and ineffective. Yet no state has ever withdrawn its membership from the organization, and virtually all have publicly acknowledged the legality of Council resolutions. Moreover, the systemic change that occurred with the end of the Cold War has opened new possibilities for the Council--which was often paralyzed by the bifurcation of the international community into two hostile blocs--to act as it was designed. (22)
The legitimacy of the Council to interpret consensus-based legal norms lies with its internal structure and its relationship to the general membership. The Council is primarily a deliberative body, which means it does not act based on automatic "triggers" (the way the League of Nations was designed to do) but rather on the basis of political consensus. (23) For this reason, Security Council actions will likely always be selective, an important safeguard that provides the flexibility to take into account political factors when consensus cannot be achieved. Sometimes this prevents the Council from acting even when most political leaders believe a violation of the charter has occurred, but this safeguard has ensured that the Council will err on the side of caution. Since the five permanent members represent the most powerful states in the world, a consensus among them provides the means for implementing commonly held standards. The veto--a classic balance-of-power mechanism--helps prevent any single state or even a majority from imposing their own interests under the guise of community norms. Moreover, the rotating members represent all of the world's regions, and the support of a majority of these smaller states is required for any effective action.
As a result, even though the charter technically limits the Council's powers to issues of peace and security, in practice the Council has assumed very broad authority on a much wider variety of issue areas. Article 39 authorizes the Council to act whenever there is a "threat" to or "breach" of the peace. Over the past few decades--particularly since the end of the Cold War--the UN has supported a very liberal interpretation of this power. For example, the Council has evoked this provision to include situations of racial domination (Rhodesia and South Africa), humanitarian crises (Somalia, Rwanda, Burundi, East Timor, and Zaire), the resolution of civil wars (Liberia and Angola), and the restoration of democracy (Haiti). (24) In each case, even though there was some opposition to the expansion of the Council's authority into these areas, virtually all states accepted the Council's decisions. Because this suggests a general acceptance among states of the legitimacy of the process, the Council has adopted wider powers not through a change in the charter but through a broad consensus.
Up to this point, I have argued that there are institutional mechanisms that provide the permissive conditions through which consensus-based legal norms could develop. The next section makes a prima facie case that such norms are developing in the area of controlling state violence.
International Consensus and the Control of Violence in International Relations
Prior to World War II, the control of state violence was limited to treaties that were binding only on the signatories, a practice reflecting the domination of consent-based positive international law. (25) However, the period surrounding World War II (1933-1945) changed the way many political leaders and their populations began to view the use of state violence. During the war, 25 million soldiers and 30 million civilians were killed in Europe and the Pacific. Close to 15 million others perished in German concentration camps, Stalinist purges, and Italian and Spanish state terror campaigns. (26) In addition, the Nazi and Japanese armies grossly mistreated prisoners of war and civilians during the conflict. Such mistreatment greatly surpassed previous conflicts in their scale and level of cruelty. (27) It also became clear (particularly after the atomic bombing of Hiroshima and Nagasaki and the firebombing of Dresden) that modern technology was capable of creating weapons of such destructive power as to threaten the very existence of society. This increased dramatically during the Cold War with the introduction of biological and chemical weapons.
Largely in reaction to these events, the conclusion of World War II brought forth several new trends that suggested the introduction of universally applied legal norms as a means of controlling excess state violence. First, the Nuremberg war crimes trials went beyond charging individuals with violating the laws of war; they introduced a new element in international law--the universality principle--that granted international courts jurisdiction over acts committed by representatives of sovereign states. This principle holds that "each and every state ... [has] jurisdiction to try particular offenses ... since the crimes involved are regarded as offensive to the international community as a whole" rather than against specific states. (28) Nuremberg also broadened the scope of international law by prosecuting individuals committing crimes "whose offenses have no particular geographical location whether they be accused individually or in their capacities as members of organizations." (29) Finally, the trials created a new category of international offense that was unrelated to the traditional definition of war crimes: crimes against humanity. This was not drawn either from the customary laws of war or from treaty. Rather, it signified a consensus among the victorious nations that some international offenses are directed not against other states but against the international community. This was a departure from traditional consent-based law. The law of Nuremberg was confirmed as part of general international law by the UN General Assembly in Resolution 95 (1).
The 1949 Convention on the Prevention and Punishment of the Crime of Genocide initiated the second postwar trend, introducing three innovative practices that constitute a significant change in the way political leaders and international lawyers thought of international law. These practices, I would argue, constituted a move toward the introduction of consensus-oriented legal norms, at least in the area of controlling large-scale state violence.
First, the genocide convention was drafted and debated within the UN General Assembly, establishing a practice of using a universal-membership organization to develop multilateral treaties. Although the assembly itself has no legal authority, the use of this body (in which all states are represented) suggested an interest in developing a more general lawmaking treaty, as opposed to a contractual one. Second, the convention declared, for the first time, that a particular practice would constitute an international crime, as opposed to simply a treaty violation. (30) Thus perpetrators would be violating general international law, not simply a contractual obligation to other states. Third, the convention authorized both individual states and international courts to prosecute individual perpetrators even if they were nationals of states that were not parties to the convention. (31) This violation of the most basic principle in consent-based law laid the groundwork for a universal law regarding the control of excess state violence and the development of institutions to implement it.
For almost half a century after the conclusion of the Nuremberg Tribunal and the genocide convention, the innovations they introduced appeared to be anomalies. During the Cold War, no one was prosecuted for perpetrating genocide (with the exception of individual Nazi war criminals who were discovered subsequent to the Nuremberg trials). This changed with two major events in the late 1980s and early 1990s that revived the movement that had begun at the conclusion of World War II.
First, the end of the Cold War created opportunities for greater cooperation among the great powers and breathed new life into the UN and regional security organizations, such as the Organization of American States. For the first time since the Security Council was created, the conditions existed that would allow it to act as its framers intended. That is, the five permanent members could commit themselves to pursue collective conflict management. Reflecting this movement, the Council dramatically increased its use of Chapter VII authority. For example, 93 percent of all Chapter VII resolutions passed from 1946 to 2002 were adopted during this period. (32)
Second, the violent breakup of Yugoslavia and the brutal application of state violence in parts of Eastern Europe, the former Soviet Union, and Africa shocked the international community, especially the great powers. (33) In particular, the lack of international action to stop the brutality in Bosnia and Rwanda forced states to consider new mechanisms to deter and prevent such acts in the future. This was motivated not only by humanitarian concerns, but also by a belief that the use of excess violence by governments could potentially threaten the security of the international order through massive refugee flows, illegal arms trafficking, and the rise of paramilitary guerrilla armies.
In reaction to these events, the Security Council attempted for the first time to enforce international law regarding the use of state violence that had occurred within conflicts of which none of the Council members were a party. It did so on the basis of a well-defined standard of excess state violence that applied to all sides in the conflict. Drawing from the precedent established during the Nuremberg trials, the Security Council used its authority granted under the "breach of the peace" clause to create international tribunals to try individuals accused of genocide, crimes against humanity, and serious war crimes in Rwanda, the former Yugoslavia, and Sierra Leone. Significantly, the Security Council did so on the basis of general international law (specifically international humanitarian law) rather than specific treaties. (34) In fact, nowhere in the resolutions authorizing the creation of these tribunals did the Council cite specific treaty violations. Although some political leaders questioned whether the Council could create such tribunals, the authority of the Council to do so was ultimately reaffirmed in the Tadic case. (35)
The choice of which offenses fell within the jurisdiction of the courts can tell us a lot about the state of international consensus on excess state violence. First, the Council decided to focus only on those areas in which there was a broad consensus concerning the universality of international law. They developed a list of core crimes that were considered to be "universally recognized" offenses against the international community under international law regardless of whether they violated a specific treaty. These included genocide, crimes against humanity, and "grave breaches" of the laws of war.
More recently, the UN has taken steps to universalize the prosecution of individuals perpetrating excess violence by making international tribunals into a permanent institution. In 1997, the UN convened an open Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome. It was the intention of the delegates not only to design a permanent court, but also to enumerate a list of international offenses pertaining to state violence that would apply universally, irrespective of whether a particular state signed the convention. (36) Defining genocide was relatively uncomplicated, inasmuch as there was already a universally recognized convention specifically addressing this issue. In developing a "threshold test" for crimes against humanity, however, the delegates determined that not every inhuman act constituted such an offense. Thus, in defining crimes against humanity (which includes such acts as murder, extermination, enslavement, large-scale deportation, and torture), the conference stipulated that they must be part of a widespread or systematic attack directed against a civilian population in pursuit of a state goal. Similarly, they decided to limit the universal prosecution of war crimes to those that are "committed as a part of a plan or policy or as part of a large-scale commission of such crimes." (37)
Finally, delegates to this 1997 conference drew from the Security Council resolution establishing a war crimes tribunal for the former Yugoslavia and defined grave breaches of the laws of war as "major violations of international humanitarian law which may be punished by any State on the basis of universal jurisdiction." (38) Such violations include the willful killing, torture, rape, or inhumane treatment of protected persons; deporting or unlawfully confining a protected person; and making the civilian population or individual citizens the object of attack. Most important, the International Criminal Court (ICC) was granted the authority to exercise its jurisdiction over nationals of a non-party state if the offense was committed within the territory of a party state. This clearly challenged the principle of explicit consent that has traditionally been such an important component of treaty law.
The refusal of the United States and several other nations to join the ICC has undoubtedly reduced its effectiveness in the short term. However, the United States never opposed the idea that the specified acts were violations of a general international law binding on all states. In fact, the United States was a founder and active participant in the conference in which the ICC Statute was developed; it was also among the original signatories to the agreement. Rather, U.S. opposition was based primarily on the perception--mistaken in my view--that the court would become politicized and target U.S. peacekeepers and diplomats who were innocent of any crime as a way to embarrass the United States. (39) Ultimately, U.S. support became a casualty of domestic politics and the U.S. 2000 presidential election.
Efforts by states to develop universally applied international legal norms designed to control excess state violence suggest that there has been an expansion in the nature of international law over the past few decades. Specifically, there is a limited but growing trend supporting the introduction of consensus-based legal norms that can override individual state consent. This does not mean that consensus-based legal norms will replace consent as the primary source of obligation, but rather that it is becoming a more significant aspect of international law.
This also means that process--the method or procedure for determining outcomes--is emerging as a key variable in establishing the precise nature of international rules. States are more likely to accept the authority of legal norms that are developed within multilateral institutions operating under broadly accepted procedures, particularly when these institutions focus on those areas in which a convergence of political values exists. This suggests a greater role for political institutions such as the UN Security Council, regional intergovernmental organizations, and multilateral conferences of plenipotentiaries in articulating standards for acceptable state behavior. Many political scientists and foreign policy officials have considered international law to be at best irrelevant and at worst a danger to the sovereign right of self-help in areas of vital interest. Consensus-based legal norms allow states to meet their legal obligations without sacrificing their ability to adapt to changing circumstances. Traditionally, the text of treaties and other agreements has provided the legal foundation for international relations, while process (diplomacy) has provided the political one. Consensus merges the two, making international law more relevant in a world of varying cultures and conflicting interests.
This emerging trend in consensus-based legal norms has important implications for the study of international relations and international law, as it fuses two different academic traditions: political science and jurisprudence. Until recently there has been a wide gulf between the two in their approaches to studying the role of law in world politics. As a field, international law, like other areas of legal studies, has traditionally focused primarily on legal texts (such as treaties and court decisions). The primary task of legal scholars has been to determine the general meaning of the text and how it applies to specific cases, whereas the field of international relations has been concerned with the behavior of states, as its scholars search for regularity in order to develop generalizable theories. This approach has naturally led toward a focus on governmental authority, power, and interests. For this reason, our concept of rules has been intimately connected to enforcement and formal authority.
Over the past decade, this divide has become less pronounced, as scholars in both fields have worked to narrow the gap between the two disciplines. (40) By introducing legal norms based on consensus, we can further bridge this divide, since negotiation and political process are so central to its development.
The question of whether this trend represents a conscious effort by political leaders to universalize some areas of international law could be further addressed by a more detailed empirical study. Space does not permit me to include other acts that fall within my definition of excess state violence--principally, terrorism against civilians and the use of weapons designed to cause large-scale material destruction and civilian death (primarily chemical, biological, and nuclear). If my argument is correct, it is likely that we will find a clear effort on the part of states to universalize the prohibition against such weapons in the coming years.
Bruce Cronin is associate professor of political science at the City College of New York and director of its master's program in international relations. He is the author of Institutions for the Common Good: International Protection Regimes in International Society (2003) and Community Under Anarchy: Transnational Identity and the Evolution of Cooperation (1999). He has published articles on international organization in Global Governance, International Organization, the European Journal of International Relations, and Security Studies.
1. A universal legal norm is one that applies to all states in all circumstances regardless of individual will.
2. I am using the term international community in a legal sense, that is, as a formal association of states, each of which possesses formal rights and obligations under international law.
3. See, for example, J. L. Brierly, The Outlook for International Law (Oxford: Clarendon Press, 1946).
4. See, for example, Louis Henkin, International Law: Politics and Values (The Hague: Martinus Nijhoff, 1995); and Anthony Arend, Legal Rules and International Society (Oxford: Oxford University Press, 1999), chap. 2.
5. Reflecting this principle, Article 34 of the Vienna Convention on the Law of Treaties explicitly states that a treaty does not create either obligations or rights for a third (nonparty) state without its explicit consent.
6. See, for example, Lassa Oppenheim, "The Science of International Law: Its Task and Method," American Journal of International Law 2 (1908).
7. Multilateralism is an institutional form that commits political leaders to follow generalized principles of conduct that apply without regard to the particularistic interests of the parties or the strategic exigencies that may exist in a particular occurrence--the very essence of a legal commitment. As John Ruggie argues, multilateralism has come to embody a procedural norm in its own right, changing the expectations for how new rules could be developed and implemented. See John Ruggie, "Multilateralism: The Anatomy of an Institution," in John Ruggie, ed., Multilateralism Matters: The Theory and Praxis of an Institutional Form (New York: Columbia University Press, 1993), p. 23.
8. See, for example, the United Nations Charter; the Marrakesh Agreement Establishing the World Trade Organization; the Charter of the Organization of American States; The Organization for Security and Cooperation in Europe's Challenges of Change, Helsinki, 9-10 July 1992; the Constitutive Act of the African Union; and the Bangkok Declaration (ASEAN).
9. See Article 53 of the Vienna Convention on the Law of Treaties, United Nations Treaty Series, vol. 78, p. 277.
10. See the report by the Inter-American Commission on Human Rights, Report No. 62/02, Case 12.285 (22 October 2002).
11. I have not found a single documented case after World War II where states have recognized the legality of conquest, even when one's allies are involved. Contrast this with the treaty-based ban on the use of force, articulated in Article 2(4) of the UN Charter, a ban that has been widely violated.
12. Malcolm Shaw, International Law (Cambridge: Cambridge University Press, 1997), p. 75.
13. See Oscar Schachter, International Law in Theory and Practice (The Hague: Kluwer Academic Publishers, 1999), p. 5.
14. Frederic Kirgis, "Specialized Law-making Processes," in Christopher Joyner, ed., The United Nations and International Law (Cambridge: Cambridge University Press, 1999), p. 66.
15. Universal-membership organizations are those that are open to all states so long as they accept the principles of its founding charter.
16. See Ian Johnstone, "Treaty Interpretation: The Authority of Interpretive Communities," Michigan Journal of International Law 12 (1991); and "Security Council Deliberations: The Power of the Better Argument," European Journal of International Law 14, no. 3 (2003).
17. Gerhard von Glahn refers to this as "common consent," while Bernard Oxman calls it "diffuse consent." See von Glahn, Law Among Nations (Boston: Allyn & Bacon, 1996), p. 39; and Oxman, "The Duty to Respect Generally Accepted Standards" NYU Journal of International Law and Politics 24 (1991): 143-144.
18. Martha Finnemore and Kathryn Sikkink. "International Norm Dynamics and Political Change," International Organization 52, no. 4 (1998): 892-893.
19. Ibid., p. 892.
20. United Nations-sponsored lawmaking conferences maintain very precise records detailing the substance of the discussions, including verbatim statements made by the delegates. These records, known as the travaux preparatoires are available from the Dag Hammarskjold library and its depositories.
21. For a good discussion of these issues, see V. Gowlland-Debbas, "Security Council Enforcement Action and Issues of State Responsibility," International and Comparative Law Quarterly 43 (1994).
22. See, for example, David Malone, ed., The UN Security Council: From the Cold War to the 21st Century (Boulder: Lynne Rienner, 2004).
23. See Article 37 (2) of the UN Charter.
24. See Nigel D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (Manchester: Manchester University Press, 1997), p. 59.
25. See, for example, Article 2 of the Hague Convention Respecting the Laws and Customs of War.
26. Norman Davies, Europe: A History (New York: Oxford University Press, 1996).
27. See Whitney Harris, Tyranny on Trial: The Trial of the Major German War Criminals at the End of World War II at Nuremberg, Germany, 1945-1946 (Dallas: Southern Methodist University Press, 1999); and Meirion Harries and Susie Harries, Soldiers of the Sun: The Rise and Fall of the Imperial Japanese Army, 1868-1945 (New York: Random House, 1992).
28. Malcolm Shaw, International Law (Cambridge: Cambridge University Press, 1997), p. 393 (emphasis added).
29. See Article 1 of the London Agreement of August 8th 1945, in D. Schindler and J. Toman, The Laws of Armed Conflicts (The Hague: Martinus Nihjoff, 1988), pp. 912-919.
30. United Nations, United Nations Treaty Series. No. 1021, vol. 78. New York, 1951, Article I.
31. United Nations, United Nations Treaty Series. No. 1021, vol. 78. New York, 1951, Articles IV-IV (emphasis added).
32. Peter Wallensteen and Patrik Johansson, "Security Council Decisions in Perspective," in David Malone, ed., The UN Security Council (Boulder: Lynne Rienner, 2004), p. 19.
33. See Stephen Iwan Griffiths, Nationalism and Ethnic Conflict: Threats to European Security, SIPRI Research Report 5 (Oxford: Oxford University Press, 1993), p. 90.
34. See Security Council Resolutions 955 (UN Doc. S/RES/955, 1994), 827 (UN Doc. S/RES/827, 1993), and 1315 (UN Doc. S/RES/1315, 2000).
35. The Prosecutor v. Dusko Tadic, Opinion and Judgement, No. IT-94-1-T (13 February 1995), reported in International Legal Materials, vol. 32, 1996.
36. Roy Lee, "The Rome Conference and Its Contributions to International Law," in Lee, ed., International Criminal Court: The Making of the Rome Statute--Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), p. 14.
37. See United Nations International Law Commission draft, par. 1, art. 8 (A/CN.4/464/Add.1).
38. United Nations, "Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780," UN Doc. S/1994/674, 27 May 1994, Section II B.
39. BBC News, "US Renounces World Court Treaty," 6 May 2002, available online at http://news.bbc.co.uk/2/hi/americas/1970312.stm.
40. See Anne-Marie Slaughter, Andrew Tulumello, and Stephen Wood, "International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship," American Journal of International Law 92, no. 3 (1998); and Anthony Arend, Robert Beck, and Robert Vander Lugt, International Rules: Approaches from International Law and International Relations (New York: Oxford University Press, 1996).
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