Abstract
In the grand debates of international law, the jus ad bellum is often proclaimed dead, and just as often praised as the “cornerstone” of the contemporary legal order. Both perspectives tend to ignore that the jus ad bellum is not static, but a body of law that states adjust over time. In an important contribution, Monica Hakimi proposes to look at one particular aspect of such adjustment, a concept she frames as “informal regulation” through Security Council action. This essay engages with Hakimi's approach. It inquires whether this approach is as “informal” as Hakimi suggests, and asks whether “informal regulation”—rather than constituting a new category of state activities to study—is not already part of conventional approaches to the jus ad bellum. Proceeding from Hakimi's analysis, the comment assesses whether there is room for “informal regulation” beyond the Security Council.
Highlights
In the grand debates of international law, the jus ad bellum is often proclaimed dead, and just as often praised as the “cornerstone” of the contemporary legal order
Monica Hakimi proposes to look at one particular aspect of such adjustment, a concept she frames as “informal regulation” through Security Council action
This essay engages with Hakimi’s approach. It inquires whether this approach is as “informal” as Hakimi suggests, and asks whether “informal regulation”—rather than constituting a new category of state activities to study—is not already part of conventional approaches to the jus ad bellum
Summary
I share Monica Hakimi’s interest in the manner in which international law regulates recourse to military force (what she terms the “regulatory form”).[1]. Hakimi’s approach is informed by a distinction between two forms of regulation: (i) general standards; and (ii) particularistic processes.[4] The former seeks to regulate recourse to force through a “small set of generally applicable substantive standards.”[5] The latter (the “particularistic processes”) do not seem to apply generally, but are addressed to “the specific circumstances of the case.”[6] Importantly, these particularistic processes are meant to operate independently of the general standards and, if we follow Hakimi, the fact that they are more independent makes them appealing She notes, “[T]he best way to strengthen the jus ad bellum ... If Hakimi claims that certain forms of Security Council action (her “informal regulation”) should affect judgments about the legality of a particular use of force, she—just like the “conventional account” she is so critical of—proceeds from a general standard She chooses not to spell it out, but it is implicit in her claim. Let me illustrate this by reference to one of her examples, namely her consideration
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