Something is not Always Better than Nothing: Problematizing Emerging Forms of Jus Ad Bellum Argument

Abstract

Since the adoption of the U.N. Charter, an unending debate concerning the permissible exceptions to the use of force prohibition has filled the pages of countless law reviews. The resulting legal regime, the jus ad bellum, has become increasingly strained as the international community faces new threats and encounters unforeseen scenarios. The post-War legal architecture is, so the debate goes, either insufficiently enabled to address contemporary challenges or consistently undermined by actors who seek exceptions to the strict limits placed upon state conduct. Debates regarding different instances when force is used exhibit a predictable pattern. Those that wish to limit the scope of the permissible use of force by states (minimalists) offer legal arguments that emphasize the importance of adhering to a strict reading of the U.N. Charter. Responding, those that support broadening the instances in which force is permissible (expansionists) provide moral arguments that stress the need to bridge the gap between what the law says and what is required to ensure a just international society. We identify a significant shift in the structure of this debate. Following the controversial airstrikes by U.S., French, and U.K. forces in Syria, proponents of an expansionist approach have moved from pursuing moral arguments about the necessity of armed intervention and instead embrace argumentative techniques that attempt to nullify minimalist apprehensions. We describe three forms of emergent expansionist arguments that have altered the traditional form of expansionist claims. In each instance, we suggest that good-faith expansionist efforts to ensure the legitimacy of the ad bellum regime are undermined by this emerging argumentative prioritization. We propose reversion to a form of legal argument that accentuates moral implications and positions international law to maintain its relevancy by effectively contributing to the redress of many of the most consuming challenges that face a non-ideal world.

Keywords: Use of Force, Unilateral Humanitarian Intervention, International Legal Theory, Just War, Collective Security, just war, Jus ad Bellum