Fox: Navigating the Unilateral/Multilateral Divide

Gregory H. Fox (Wayne State Univ. - Law) has posted Navigating the Unilateral/Multilateral Divide (in Jus Post Bellum: Mapping the Normative Divide, Carsten Stahn, Jennifer Easterday & Jens Iverson eds., forthcoming). Here's the abstract:

International law and international organizations are increasingly focused on the aftermath of conflict. Civil wars, failed states and mass atrocities have challenged the international community to reconstruct societies whose political cultures and institutions are barely functional. Many commentators now refer to the normative dimension of this phenomenon as the “jus post bellum,” a legal category that does not yet exist but seems increasingly necessary. This chapter warns of an important dilemma facing the nascent jus post bellum should it seek to regulate all actors in a post-conflict environment. The dilemma emerges from a critical “secondary” rule in international law: the distinction between states acting unilaterally and those acting pursuant to a Security Council Chapter VII mandate. The unilateral/multilateral divide manifests itself in three critical ways in the post-conflict period. First, applicable legal regimes regulate states but not international organizations. Second, the UN Security Council has the legal authority to substitute its policy preferences for existing state-centric law on post-conflict states. Third, the Council, through its powers under Chapter VII of the UN Charter, has effectively multilateralized almost every post-conflict state in the past few decades.

The norms applicable to post conflict states are thus highly bifurcated. On the one hand, the existing treaty regimes are state centric in their design and also largely in their application. On the other hand, the Security Council has multilateralized the post-conflict period in almost all respects. The result is that existing post-conflict norms barely regulate the most important actor in the field. Architects of a nascent jus post bellum thus face a dilemma. The new regime can mirror the state-centrism of existing law, in which case it will be of marginal relevance to the UN and UN-sanctioned operations dominating today’s post-conflict missions. Alternatively, the jus post bellum could expand its application to include multilateral actors. But in that case it must provide a convincing justification for subordinating Council authorizations under Chapter VII to a set of treaty-based or customary rules. That seems an impossible task.

This chapter does not chart a way out of this dilemma. Instead, it reviews the actors and law applicable to four prominent efforts at post-conflict reconstruction: East Timor (1999), Afghanistan (2001), Iraq (2003) and Libya (2011). It then analyzes how a uniform just post bellum would fare in these cases if international law continued to adhere to the unilateral/multilateral distinction. It concludes that this distinction is too deeply embedded in structural aspects of the international community for it to be surmounted.