Christian Henderson

The Contemporary Legal Nature of UN Security Council Ceasefire Resolutions

This article sets out to examine the legal nature of ceasefire resolutions issued by the United Nations Security Council. While it has become common practice for the Council to issue calls or demands for ceasefires, their legal nature – and in particular whether they are legally binding – remains unclear. Furthermore, given the ubiquity of non-international armed conflict, there is an additional challenge with regard to the legal effect of such resolutions upon non-state armed groups. The article provides an analysis of these issues and concludes with a potential way forward.

Commissions of Inquiry: Flexible Temporariness or Permanent Predictability?

Temporary commissions of inquiry have become more prominent over the past decade, with their establishment particularly noticeable in the context of the Arab Spring. Along with their increased prominence they have also displayed certain features of an adjudicative nature. Although primarily established as fact-finding bodies, their mandates now regularly include making assessments as to potential violations by particular entities of international human rights law and international humanitarian law. This chapter examines the impact that commissions of inquiry as temporary creations have had upon international law and, more specifically, upon international legal adjudication, in particular the traditional formality of international legal adjudication, the principle prohibiting intervention in the internal affairs of states, and procedural fairness. While the temporariness of commissions of inquiry is in many ways unproblematic, this chapter identifies certain problems and examines the possibilities for the establishment of a permanent commission as a means to rectify some of the issues associated with their current temporary nature.

UN Security Council Resolution 2378 (2017) and the progressive peacekeeping agenda: a commentary

UN Security Council Resolution 2378, which was unanimously adopted on September 20, 2017, is a notable resolution, bringing together, while attempting to drive forward, various ideas and reform proposals that have emerged in recent years in connection with United Nations peacekeeping operations. The fact that it was proposed by Ethiopia, deliberated in Addis Ababa, and adopted during Ethiopia’s presidency of the Security Council are testaments to the central role that this state has played, and continues to play, in UN peacekeeping, perhaps most notably through its position as the leading troop-contributing country to such operations. In this respect, it is notable that the resolution “[u]nderscor[es] the importance of peacekeeping as the most effective tools [sic] available to the United Nations in the promotion and maintenance of international peace and security” while also “[r]eaffirming [the Security Council’s] resolve to strengthen the central role of the United Nations in peacekeeping and to ensure the effective functioning of the collective security system established by the Charter of the United Nations.”

Point of Attack: Preventive War, International Law and Global Welfare

Legal and ethical debates regarding the righteousness of resorting to the use of force are far from new. Today, debates regarding the legality of the use of force against and within other states, what constitutes an ‘armed attack’ for the purposes of Article 51 of the UN Charter, whether an actual armed attack is necessary before resorting to the use of force in self-defence, and what represents ‘necessary’ and ‘proportionate’ action, are frequent. However, one only has to look back to the Caroline incident of 1837 to realise that even prior to 1945 debates were taking place between states as to when it was just, if not lawful, to resort to force. The role of authors and the broader epistemic community in advancing thinking, given the general reluctance of states to engage in conceptual debates regarding the boundaries of this area (as opposed to the legality of specific incidents), is considerable. One only has to look at the work of the International Commission on Intervention and State Sovereignty and the UN Secretary General in advancing and developing the responsibility to protect concept, or the way in which debates between IanBrownlie andDerekBowett or betweenMichael Reisman andOscar Schachter are drawn upon to clarify one’s thinking on a particular issue. In this respect, John Yoo, the author of the work under review and currently Professor of Law at UCBerkeley, is well known in connection with debates on the use of force, having been a vociferous defender of the second Bush administration’s relationship to this branch of the lawwhile serving as deputy assistant attorney general in the Office of Legal Counsel at the US Department of Justice. Yoo’s views on concepts such as preemptive self-defence, while finding good company from some quarters in the United States, cut, it has to be said, a rather lonely voice on the other side of the Atlantic. Yoo’s latest contribution under review here, Point of Attack: Preventive War, International Law and Global Welfare, will perhaps unsurprisingly attract adherents and critics in equal measure. While not necessarily propounding anything radically novel (in arguing that the international rules and institutional structures governing the resort to force are out of date and no longer relevant to the prolific rise of intra-state warfare), it is the book’s arguments in looking beyond state sovereignty as the focus for the rules and having ‘global welfare’ as the guiding light that are its central contribution to existing debates.

THE UK GOVERNMENT‘S LEGAL OPINION ON FORCIBLE MEASURES IN RESPONSE TO THE USE OF CHEMICAL WEAPONS BY THE SYRIAN GOVERNMENT

On 29 August 2013, the UK government published a memorandum setting out its ‘position regarding the legality of military action in Syria following the chemical weapons attack in Eastern Damascus on 21 August 2013’. While other States had contemplated some form of military action, most notably the US, none had been as clear and candid as to the legal basis upon which this would be launched. It might seem in this respect perhaps a little surprising that the UK decided in its relatively brief opinion that ‘the legal basis for military action would be humanitarian intervention’. As this article will attempt to highlight, this basic justification is far from uncontroversial. This short article will seek to be clear as to what the UKs legal position exactly was, whether and how this position can be reconciled with the lex lata governing the use of force for humanitarian purposes and its immediate impact upon it, and finally offer some reflections upon the contribution the opinion and its central legal argument has made to future legal argumentation in this area.