Collective Security Through Law (Mach II): Norm-Cascades and the United Nations

Abstract

If the pursuit of collective security through law that held sway in 1945 rested on the judicial function of pacific dispute settlement, the place of law in collective security in 2015 rests on the (quasi) legislative function of standard-setting. This paper examines changes in the way law is instrumentalized by UN organs and agencies in order to address non-traditional threats to international peace and security that do not emanate from state-on-state aggression. Positive legal instruments like UN Security Council (UNSC) resolutions and multilateral conventions such as the UN Convention on Transnational Organized Crime are only the tip of the iceberg and that beneath the binding legal provisions contained in them lie cascading strata of increasingly detailed and technical norms. It suggests that these norms can be understood as what Michel Foucault called ‘infra-law’ – a form of law that operates on the underside of formal, positive law. Inspired by Fleur Johns’ work on non-legality, it calls for international lawyers to pay attention to technical implementation practices as a way of mitigating some of the negative tendencies of disciplinary power. Contrary to other ways of bringing such practices and mechanisms into the sightlines of international lawyers – such as Global Administrative Law and certain forms of soft law – the paper argues that there is no need to rebrand such practices as positive international law or as lex ferenda. Instead, it is suggested that international lawyers can deal with these phenomena as proximate to substantive international law. The paper distinguishes the province of international law from that of international lawyers.