International Law and the Construction of the Liberal Peace: An Introduction

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I am delighted that the editors of EJIL: Talk! have agreed to host a discussion of my recently published monograph, which is entitled International Law and the Construction of the Liberal Peace and published by Hart. I am especially delighted that Professor Jean d’Aspremont, Professor Greg Fox and Professor Brad Roth have agreed to act as discussants. These scholars have been at the forefront of the debate on the relationship between international law and liberal democracy and, as is apparent from my book, their work has had a significant impact upon the way in which I understand international law and international relations. It is therefore an honour for me that they have taken the time to critically engage with the arguments that I pursue in the book. I intend to briefly outline the main ideas and arguments that are developed in the book and I do this with the objective of setting the scene for the discussion that follows.

 

The book is premised upon my doctoral thesis that was successfully defended at the University of Bristol in January 2010. Although the book that followed the thesis evolved considerably in terms of structure and content, the core objective of both projects remained unchanged. Stated succinctly, the main objective of the book is to deploy the concepts of the international society and the international community in order to construct an explanatory framework that can enable us to better understand recent changes to the political and legal structure of the contemporary world order and why violations to international peace and security occur.

As I explain at length in the book’s introduction, the objective of the book is explanatory, not normative. The importance of the nature of this objective cannot be overstated. The objective is to develop a theory that can be utilised to enable a better understanding of the structure and character of international relations, both politically and legally, rather than to express a personal opinion as to whether this structure and character is normatively attractive. For example, a key argument of the book is that since the end of the Cold War an international community of liberal states has crystallised within the broader international society of sovereign states. I further argue that the international community has increasingly sought to promote respect for liberal values to non-liberal states and that this campaign for liberal development can account for why recent violations to international peace and security occur. The book is non-normative in the sense that I do not comment upon whether this campaign represents a positive development and I do not attempt to defend it.

The concepts of the international society and international community are obviously central to the book. The book is divided into two parts. Part I comprises four chapters which are devoted to elaborating upon the identities of the international society and international community. Briefly put, I deploy the concept of the international society as a descriptive tool to capture an association of states that formed in the years following the end of the Second World War. I argue that when confronted with the massive destruction wrought by the Second World War states recognised their common interest in creating a comprehensive international legal framework that enabled them to co-exist without fear of obliteration. The product was an international society that eventually became universal in scope and that is constituted by the international legal norm that casts all states qua states (and so regardless of their political orientation) as sovereign equals which are entitled to determine their internal affairs without external intervention. Importantly, in order to formalise and ultimately strengthen its association the international society created the UN. In this sense, the UN became the institutional representation of the international society.

I submit that the end of the Cold War represented a seminal moment in the trajectory of international relations and international law. With the end of the Cold War and the perceived triumph of liberal democracy as the only acceptable form of political governance liberal states within the international society became normatively empowered. These liberal states formed a cohesive international community that exists within the international society and which considers only those states that demonstrate respect for the liberal values of democracy, human rights and the rule of law as legitimate and equal members of the international community. Perhaps more importantly, the international community has sought to reserve sovereignty for liberal states only. Non-liberal states have therefore been increasingly denied their previously held sovereign right to non-intervention. Indeed, perceiving the international society to have failed in maintaining international peace and security through its regulatory framework and motivated by the belief that international peace and security can be only achieved in a world composed of exclusively liberal states (the so-called liberal peace thesis), I argue that the international community has engaged in a sustained campaign to promote liberal democratic standards to non-liberal states.

The emergence of the international community has had a considerable impact upon the structure of international relations. This change in political structure has also had a dramatic impact upon the content of international law and in particular the objectives that international law pursues. The international society had previously formulated international legal norms that sought to protect state sovereignty, such as the non-intervention principle and the prohibition against the threat or use of force. The emergence of the international community has resulted in these rules being adapted in order to allow for the promotion of liberal values. For example, in recent years we have witnessed a refinement of the non-intervention principle so that states can no longer rely upon international law to protect them from external intervention where they are failing to protect fundamental human rights. Similarly, in the jus ad bellum context liberal states now maintain that the doctrine of humanitarian intervention has crystallised as customary international law. This doctrine has modified the non-use of force prohibition and permits states to use force against other states where severe abuses of human rights are being committed. Importantly, I argue that the emergence of the international community has not just resulted in the adaption of existing principles of international law but also the creation of new legal rules and institutions that are designed to facilitate the promulgation of liberal values. For example, it is now widely accepted that democracy is a fundamental entitlement under international law. Another example would be development of the responsibility to protect doctrine. I argue that these modifications and developments in international law can be explained on the basis of an international community of liberal states that is now utilising international law as a mechanism to promote respect for liberal values and thereby expand its zone of liberal peace.

The Security Council is at the forefront of the international community’s campaign for liberal development. As the UN is an institution of the international society I argue that during the Cold War the Security Council sought to protect state sovereignty and only engaged its Chapter VII powers where a threat to the peace was identified, which meant a threat of interstate violence. Consistent with the values of the international society, during the Cold War the Security Council certainly did not engage its powers in order to intervene in the political affairs of member states. With the end of the Cold War, however, the dominance of the international community within the world order and especially within the Security Council has resulted in the Council engaging its Chapter VII powers so as to promote liberal democracy to non-liberal states. As an example, the Security Council’s authorisation to allow NATO to use all necessary means to protect human rights in Libya (2011) is particularly illustrative.

Part II of the book seeks to illustrate the claims made in Part I in relation to the international society and the international community by focusing upon the transition from peacekeeping to peacebuilding operations since the end of the Cold War. I argue that during Cold War the international society, acting through the UN, deployed peacekeeping missions with the intention of preventing states from resolving their disputes through force. Crucially, these UN missions did not take sides in the dispute or seek to impose a political solution. The aim was to place UN personnel between warring states and thus protect state sovereignty and, more generally, international peace and security. Even where UN peacekeepers were deployed within states that were experiencing internal civil unrest I contend that the objective remained the same; to prevent violence from erupting between various groups and to create an environment where parties could resolve their disputes through reconciliation and mediation.

The end of the Cold War however signalled a fundamental shift in the nature and objectives of peacekeeping operations. I argue that the UN is now deploying peacekeeping forces with the explicit mandate to reconstruct post-conflict societies upon a liberal basis. Consider for example the UN missions in Kosovo (1999), East Timor (1999) and Afghanistan (2002) and the extent of the liberal reforms that were introduced. My argument is that under the influence of the international community the UN is now deploying peacekeeping missions not just with the intention of preventing and eliminating violence but, in addition, to establish local and national democratic institutions and to create a legislative and judicial framework that allows for the effective protection of human rights. Adopting UN terminology I call this new form of peacekeeping peacebuilding.

I hope readers enjoy the book and I very much look forward to participating in the discussion that it generates.

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    Dapo Akande says

    November 15, 2014

    Dear Russell,

    Many congratulations on the publication of the book! The overall narrative is very well put together. However, I do wonder about some of the specific examples you deploy to support the narrative. You argue that the emergence of the international community has resulted in changes to the rules relating to non-intervention and non-use of force in order to allow the promotion of liberal values. To support this claim, you then say that: ". . . in the jus ad bellum context liberal states now maintain that the doctrine of humanitarian intervention has crystallised as customary international law. This doctrine has modified the non-use of force prohibition and permits states to use force against other states where severe abuses of human rights are being committed."

    Is there evidence to support the claim? It does not seem to be the case that many liberal states claim that humanitarian intervention has crystallised as custom? Which states do you actually have in mind? The UK and Belgium have made such claims about changes in the law but they seem to me to be in a minority even among western liberal states. When scholars try to find evidence of practice with regard to humanitarian intervention, apart from the Kosovo case, the examples they point to (India in Bangladesh, Vietnam in Cambodia, Tanzania in Uganda) are neither post cold war cases nor, in the main, cases of liberal states relying on humanitarian intervention (leave aside that they are not cases where a claim of humanitarian intervention was made at all).

    You also use as an example the "development of the responsibility to protect doctrine." But what legal development has this given rise to? Has this doctrine actually changed or even affected in any meaningful way (or any way at all) any rule of international law? If so, which ones?

    With regard to peacekeeping, you are right that robust peacekeeping (where the UN mission will occasionally take sides) is mainly a post-cold war phenomenon. However, it was not completely absent in the cold war as the ONUC operation in what is now the Democratic Republic of Congo.

    My point is not to suggest that the overall narrative you seek to weave is not persuasive, I am only quibbling about some of the supporting evidence.

    Also, as I have not yet read the book it may be that you've dealt with these points in the book.

    Congratulations once again!

    Mariano de Alba says

    November 15, 2014

    Very interesting post (and book). I will definitely check it out. The underlying discussion that the book indirectly poses (whether is it proper for either the UN or Western countries to impose liberal values) is captivating and current.

    But isn't the UN Charter a liberal instrument? Couldn't the argument be made that UN Member Countries auto-incorporate liberal values when they become members of the UN? After all, Article 1.3 of the Charter talks about "encouraging the respect of human rights".

    Congratulations!

    Russell Buchan says

    November 17, 2014

    Dear Dapo,

    Thank you for your comment and thank you again for agreeing to host a discussion of my book on EJIL Talk! The introduction above sketches the main arguments pursued in the book. As you indicate most of your comments are addressed and developed further in the book. However, let me respond to them briefly. You raise three separate issues:

    1. Is there sufficient evidence to sustain the claim that humanitarian intervention is now customary international law? As we know since the end of the Cold War scholars have fiercely debated the legality of humanitarian intervention. Whether or not humanitarian intervention is permissible is perhaps contingent upon how we consider custom to develop. I was at a conference last week hosted by the Universities of Lincoln and Manchester where Sir Michael Wood was discussing the ILC's work on customary international law. The main thing I took away from the conference was that the criteria for when a norm crystallizes as custom has almost certainly been relaxed since the North Sea Continental Shelf case ie what constitutes state practice, how much state practice is needed, double-counting of state practice and opinio juris etc. Indeed, I'm currently researching in the context of cyber and some argue that cyber specific customary international rules can be said to have emerged on the basis of trends and patterns in conduct of states. If such a relaxation has occurred then I would argue that state practice (and in particular that of liberal states) reveals a clear willingness to accept that in extreme instances and where the SC is blocked military force can be used to end severe human rights abuses. The book provides examples of the practice of liberal states in this context, including discussions and voting in international organisations.

    I should also note that I may have perhaps put the matter too strongly/dogmatically in the introduction above (humanitarian intervention has emerged as custom). In the book (see chapter 2) I temper this statement by arguing that the extent to which we now argue that humanitarian intervention is emerging as custom can be attributed to an international community of liberal states that is now agitating for the liberal development of international law (so in this sense the purpose of the book isn't to prove one way or another that humanitarian is custom).

    2. In chapter 2 I address in detail R2P. As Cartsen Stahn said in his article in the AJIL, R2P is essentially 'old wine in new bottles'. What he meant by this was that in its current formulation R2P does not create new international legal rules. All it confirms is that states are under an international legal obligation to protect human rights, something which international human rights law has long imposed. However, the development of this doctrine and its corollaries (responsibility to prevent, rebuild and prosecute) clearly strengthens and entrenches the trajectory of international law towards the protection of human rights. Again, my argument is not so much that R2P imposes new international legal obligations, but that the coining of this doctrine and its increased traction within international legal discourse is a liberal development attributable to the international community.

    3. In chapter 5 I argue that peacekeeping during the Cold War was intended to protect the legal edifice of statehood rather than interfere in domestic political processes. The Congo peacekeeping and the Cyprus mission are both often cited as examples of peacekeeping missions during the Cold War where the UN sought to impose an externally defined solution to internal problems. In chapter 5 I look at these missions in detail in order to reveal that although the UN did become involved with internal affairs the objective was not to impose a political solution but instead to eliminate violence and establish an environment where political disputes could be resolved peacefully ie to protect the legal edifice of statehood. In this sense, peacekeeping (even within states rather than between them) can be seen as a product of the international society.

    Russell

    Dapo Akande says

    November 17, 2014

    Dear Russell,

    Thanks for your response. It is a pleasure to have this conversation about your book. It only spurs me on to read the book and I hope that the discussion on the blog will encourage others to read it as well. I have enjoyed reading your post and the responses it is generating from commentators on the blog.

    With the huge caveat that I have not yet read the book and need to read it to assess your arguments more fully, I still have doubts about whether the evidence you provide supports the claims you make - even in your response to my comment. So my reaction is probably similar to that of Brad Roth in his comments on this blog about your book. In your response above you argue that "state practice (and in particular that of liberal states) reveals a clear willingness to accept that in extreme instances and where the SC is blocked military force can be used to end severe human rights abuses." And that "the extent to which we now argue that humanitarian intervention is emerging as custom can be attributed to an international community of liberal states that is now agitating for the liberal development of international law." I accept that your point is not to show that humanitarian intervention is lawful but simply to show that liberal states are pushing for the law to develop in this direction.

    However, even this narrower claim seems to me to be in doubt. Some argue for such a development in the law but they seem to be a handful, if even that. Most European states and most western states have not argued that the law should move in this direction. I will grant you though that in Kosovo they seemed to say the use of force was lawful, as the US seemed to suggest with regard to the proposed intervention in Syria in 2013. However, these states did not specify the basis for legality nor did they suggest that the law should permit such action in general terms. They said it was sui generis.

    As important is that there is also practice of so called non-liberal states in this direction (though not the opinio juris). So if we look at actual uses of force for human rights protection it seems to me that we can point just as much - perhaps even more so - the practice of states that we won't necessarily put in the "liberal" camp. Apart from the cases I noted above from the 1970s there is also the practice of ECOWAS states in Liberia in the 1990s.

    Russell Buchan says

    November 17, 2014

    Dear Mariano,

    Thanks for your comment. You are correct that the UN Charter does mention the protection of human rights. However, it is mentioned very briefly and in abstract, often aspirational, terms. Compare this with the clear, unambiguous, pride of place status given to the obligation to respect the sovereign equality of states (Article 2(1)), the non-use of force prohibition (Article 2(4)) and the requirement to abstain from intervention in the internal affairs of states (Article 2(7)). So, there is a tension evident in the UN Charter between respect for sovereign equality and human rights protection, but the former is ultimately given prominence.

    Russell

    Duncan French says

    November 17, 2014

    Hi Russell

    Very much enjoying already the conversation. As regards customary international law, I wonder how you "square the circle" with the need for acquiescence / opinio juris of the "international community" for a right that might only be expressly propounded by the "international society"?

    Duncan French says

    November 17, 2014

    Or vice versa! Apologies...

    Russell Buchan says

    November 17, 2014

    Dear Duncan,

    Thanks for your comment. 2 points:

    1. I just want to reiterate that the book is not a defence of the customary status of humanitarian intervention. Instead, my claim is that the extent to which humanitarian intervention is emerging as a customary law can be imputed to the international community and its increasing influence in the world order.

    2. Your comment does pick up upon an important and interesting issue. I would argue that non-liberal states have at times supported (or at least acquiesced to) liberally orientated conduct, which includes unilateral humanitarian interventions. For example, non-liberal states supported or at least acquiesced to the intervention in Kosovo in 1999. Moreover, non-liberal states often support (or at least do not impose obstacles against) liberally orientated resolutions in international organisations - for example, non-liberal states supported (or at least did not block) the intervention in Libya in 2011. But an important question is why do non-liberal states support such liberally minded conduct/resolutions? Could it be argued that changes in international law such as humanitarian intervention are not attributable to the international community, but instead to states more broadly, and that consequently such changes in international law cannot be used to evidence the existence of what I call the international community? Political science literature reveals that non-liberal states demonstrate a propensity to support liberal conduct/resolutions, even though it is entirely inconsistent with their previous conduct and/or values/beliefs, on the basis of vote buying, vote trading and 'log rolling' more generally that is commonplace in international relations. But this does not mean however that the international community is not the catalyst for such changes in international law, even if such changes are supported by non-liberal states. In this sense, liberal changes in international law can still be ultimately attributed to and explained by the existence of the international community.

    Best wishes
    Russell

    Russell Buchan says

    November 18, 2014

    Dear Dapo,

    Thanks for your follow up comment. As you recognize, my claim is that a right to humanitarian intervention is gradually emerging in international law. I would argue that the 19 NATO member states that accepted the legality of humanitarian intervention in Kosovo without Security Council authorization, and that 17 NATO members individually declared the legality of their participation in the military action, certainly acts as a catalyst for a customary change in the international legal framework relating to the use of force. That this change is occurring is further supported by more recent developments, and in particular the US and UK's reaction to the events that were unfolding in Syria in 2013. I would argue that the claims of the US administration, when aggregated and approached holistically, reveals a clear and unambiguous international legal basis for its proposed military intervention; namely, to protect human rights where the UN and the national government was unable to do so. This position was advocated just as clearly (but perhaps more concisely) by the UK Attorney General (I quote: 'the legal basis for military action would be humanitarian intervention; the aim is to relieve humanitarian suffering by deterring or disrupting the further use of chemical weapons'). You are right that liberal states (well, some - the UK for example didn't in relation to Syria) have demonstrated a tendency to claim that such conduct is sui generis; but the more they engage in an activity and the more they claim it is sui generis it actually becomes less sui generis and more of a consistent practice!

    I would also like to note that it is not just state practice that contributes to the formation of customary international law. The sources of custom are far more varied and numerous in the contemporary era. In this context see for example the decisions and statements of NATO and its representatives over the years (such as the Secretary General), the UN Secretary-General Kofi Annan's statement in response to the Kosovo crisis (which seemed to recognize a right (albeit highly circumscribed) to use force for humanitarian reasons), and debates between states, international organizations and NGOs over the R2P doctrine and the need to craft an international legal framework that enables effective responses to humanitarian crises. The book discusses such examples in detail and also identifies others.

    In response to your second point, you are correct that non-liberal states have at times utilized the humanitarian intervention doctrine (indeed Russia seemed to do this recently in relation to its intervention in Crimea). So states not necessarily falling within the international community have contributed to the development of the doctrine of humanitarian intervention. But this does not mean that humanitarian intervention is not a creation of the international community, as an expression of its normative framework, but which at times receives ad hoc support from non-liberal states (or at times even abused by non-liberal states, exploiting this doctrine as a guise to intervene for less altruistic reasons (again, thinking Russia in Crimea here). But the way I see it is that fundamentally humanitarian intervention is a liberal doctrine, and I argue that its origin is in the liberal states of the international community and that liberal states are its principal supporters.

    Best wishes
    Russell