TY - JOUR
T1 - The permissive power of the ban on war
AU - Hurd, Ian
N1 - Funding Information:
For comments on earlier versions of this article I am grateful to Mary Ellen O'Connell, Barbara Koremenos, Benedict Kingsbury, Ken Stiles, Tony Lang, Nick Rengger, and the editors and reviewers of the EIS, as well as to colleagues and audiences at the University of Notre Dame (2016), Brigham Young University (2016), the Free University of Berlin/Humboldt group on the international rule of law (2016), the University of Minnesota (2016), the American Political Science Association (2015), the American Society of International Law (2015), and the University of St.Andrews (2015).
PY - 2017
Y1 - 2017
N2 - The ban on inter-state war in the UN Charter is widely identified as central to the modern international order-Michael Byers calls it 'one of the twentieth century's greatest achievements'. Even if it is only imperfectly observed, it is often seen as a constraint on state autonomy and an improvement on the pre-legal, unregulated world before 1945. In response to this conventional view, this article shows that the laws on war in the Charter are better seen as permissive rather than constraining. I make two points. First, by creating a legal category around 'self-defence', the laws on war authorise, and thus legitimate, wars that are motivated by the security needs of the state, while forbidding other motives for wars. Second, state practice since 1945 has expanded the scope of this authorisation, extending it in both time and space beyond the black-letter text of the Charter. The permissive effect of law on war has therefore been getting larger. These two effects suggest that international law is a resource that increases state power, at least for powerful states, and this relation between international law and power politics is missed by both realists and liberal internationalists.
AB - The ban on inter-state war in the UN Charter is widely identified as central to the modern international order-Michael Byers calls it 'one of the twentieth century's greatest achievements'. Even if it is only imperfectly observed, it is often seen as a constraint on state autonomy and an improvement on the pre-legal, unregulated world before 1945. In response to this conventional view, this article shows that the laws on war in the Charter are better seen as permissive rather than constraining. I make two points. First, by creating a legal category around 'self-defence', the laws on war authorise, and thus legitimate, wars that are motivated by the security needs of the state, while forbidding other motives for wars. Second, state practice since 1945 has expanded the scope of this authorisation, extending it in both time and space beyond the black-letter text of the Charter. The permissive effect of law on war has therefore been getting larger. These two effects suggest that international law is a resource that increases state power, at least for powerful states, and this relation between international law and power politics is missed by both realists and liberal internationalists.
KW - International Law
KW - International Security
KW - Laws of War
KW - Legal Justification
KW - Self-defence
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U2 - 10.1017/eis.2016.13
DO - 10.1017/eis.2016.13
M3 - Article
AN - SCOPUS:85027078687
VL - 2
SP - 1
EP - 18
JO - European Journal of International Security
JF - European Journal of International Security
SN - 2057-5637
IS - 1
ER -