Sunday, March 11, 2018

Hakimi: The Jus Ad Bellum's Regulatory Form

Monica Hakimi (Univ. of Michigan - Law) has posted The Jus Ad Bellum's Regulatory Form (American Journal of International Law, forthcoming). Here's the abstract:

Though an extensive body of work addresses the substantive content of the jus ad bellum, little attention has been paid to its regulatory form — meaning the modes for expressing its content as concrete directives that structure legal arguments and decisions. By most accounts, its content takes the form of a blanket prohibition and a small handful of exceptions. The same general standards are thought to govern all situations involving cross-border force and to determine whether any particular operation is lawful.

This Article argues that an alternative form of regulation is embodied in decisions at the UN Security Council that condone but do not formally authorize specific military operations. Such decisions confer authority on the operations at issue; they make the operations easier to justify and harder to challenge in law. They do so even when they go beyond what the general standards permit. Recognizing that they are both part of the jus ad bellum and different in kind from regulation through the general standards should change how we think about and assess this body of law.