Ryan Goodman

HUMAN RIGHTS TREATIES, INVALID RESERVATIONS, AND STATE CONSENT

A continuing debate in international human rights law concerns the result of invalid reservations to multilateral treaties. The cardinal rule holds that a reservation cannot be incompatible with the object and purpose of a treaty. Yet a normative puzzle remains: what legal remedy should follow the determination of the invalidity of a reservation? Leading commentators have discussed a limited set of options. Three choices can be identified:

Humanitarian Intervention and Pretexts for War

The legal status of humanitarian intervention poses a profound challenge to the future of global order. The central question is easy to formulate but notoriously difficult to answer: Should international law permit states to intervene militarily to stop a genocide or comparable atrocity without Security Council authorization? That question has acquired even greater significance in the wake of military interventions in Kosovo and Iraq, and nonintervention in the Sudan. Concerted deliberation on these issues, however, has reached an impasse. A key obstacle to legalizing unilateral humanitarian intervention (UHI) is the overriding concern that states would use the pretext of humanitarian intervention to wage wars for ulterior motives. In this article, I argue that it is just as likely, or even more likely, that the impact on states would be the opposite. Drawing on recent empirical studies, I contend that legalizing UHI should in important respects discourage wars with ulterior motives, and I discuss changes to international legal institutions that would amplify that potential effect.

The Detention of Civilians in Armed Conflict

In the armed conflict between the United States and Al Qaeda, the legality of the governments detention scheme has been mired in confusion. The lack of clarity is especially acute with respect to the substantive criteria for defining who may be detained. A crucial determinant of the lawfulness of the scheme is whether international humanitarianlaw (IHL) permits the preventive detention of civilians, or particular groups of civilians. In addressing that issue, leading lawmakers, litigators, and adjudicators have misconstrued or misappropriated aspects of the IHL regime. Indeed, the confusion surrounding the current and future direction of U.S.detention policy stems in significant part from those misconceptions or misuses of the law.

The Persistent Power of Human Rights: Social mechanisms to promote international human rights

The study of the international human rights regime has increasingly emphasized how this regime matters rather than if it matters. An especially productive turn focuses on integrated conceptual models, which accept the importance of multiple forms of influence on state behavior. The Power of Human Rights (PoHR) provided a foundation for such studies by bringing attention to the significance of different logics of interaction at different points in the socialization process of states (Risse et al. 1999). That leading work and allied scholarship recognize the complexity of actor motivation, human and organizational behavior, and the global-level social environment. What is needed now is a social theory that accounts for why human rights abuses occur and how the international community does or might influence rights abusers to alter their behavior. The objective is to explain how changes in the relevant social environment – namely the existence, and ultimately the formal acceptance, of international human rights – affect the behavior of individuals, governments and non-governmental organizations. The “spiral model” of human rights change developed in PoHR – and further elaborated in this volume – is an important step in developing such a theory. At a high level of generality, the model provides a conceptually and empirically compelling account of the relationship between national policies and formal international human rights regimes. On this model, various socialization processes work together to influence non-compliant states to accept and ultimately comply with human rights norms through a five-stage process: repression, denial, tactical concessions, prescriptive status, and rule-consistent behavior. The model emphasizes how instrumental adaptation, argumentation and habitualization impel states first to commit formally to human rights regimes and thereafter, under certain conditions, to internalize human rights norms. Four mechanisms of social influence are identified by the authors as crucial to modeling the domestic political consequences of the human rights regime: coercion; incentivization; persuasion/learning; and capacity-building.

Controlling the Recourse to War by Modifying Jus in Bello

According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct. The purported independence of the two domains – the ‘separation principle’ – remains unstable despite its historic pedigree. This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello. International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare. One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. These efforts – whether intended or not – risk suppressing ‘desirable wars’ and inspiring ‘undesirable wars.’ These recent developments also undercut humanitarian protections by undermining the mechanisms for compliance with legal norms on the battlefield.

The Obama administration and targeting “war-sustaining” objects in noninternational armed conflict

Since September 11, 2001, legal experts have focused significant attention on the lethal targeting of individuals by both the George W. Bush and Obama administrations. An equally significant legacy of the post-9/11 administrations, however, may be the decisions to target specific kinds of objects. Those decisions greatly affect the success of U.S. efforts to win ongoing conflicts, such as the conflict with the Islamic State of Iraq and the Levant (ISIL). These decisions may also become precedents for military attacks that states consider lawful, whether carried out by cyber or kinetic means, in future armed conflicts. To achieve the goal of destroying ISIL, President Obama embraced what many in the international law community long regarded as off-limits: targeting war-sustaining capabilities, such as the economic infrastructure used to generate revenue for an enemys armed forces. Although the weight of scholarly opinion has for years maintained that such objects are not legitimate military targets, the existing literature on this topic is highly deficient. Academic discussion has yet to grapple with some of the strongest and clearest evidence in support of the U.S. view on the legality of such targeting decisions. Indeed, intellectual resources may be better spent not on the question of whether such objects are legitimate military targets under the law of armed conflict, but on second-order questions, such as how to apply proportionality analysis and how to identify limiting principles to guard against unintentional slippery slopes. In this article, I discuss the legal pedigree for war-sustaining targeting. I then turn to identify some of the most significant second-order questions and how we might begin to address them.