This lecture will focus on the role of justificatory discourse tied to UN Security Council decision-making that does not fit easily into mainstream understandings of lawful uses of armed force – discourse understood in terms both of vocalized argument and of deliberate silence, and discourse both in the lead up to and following uses of armed force. The animating question is how the exercise of collectivized political judgment can interpretively reshape – and may actually have reshaped – the meaning of UN Charter Chapter VII. Kosovo (and subsequent developments, including the report of the International Commission on Intervention and State Sovereignty) is taken as a root normative moment in attempts to reshape the law around so-called ‘(armed) humanitarian intervention / (armed) responsibility to protect’, paralleling two other axes of normative debate: a claimed loosening of constraints around self-defence in the context of transnationalized terrorism with 9/11 as root normative moment; and the development of the notion of the Security Council’s ‘implied authorization’ with the invasion of Iraq in 2003 as the root normative moment.
The central reference point for the discussion will be the US strike on an airbase in Syria in April 2017 following a chemical attack that killed dozens, contextualized by the lecturer’s articles* on how efforts to reshape the law of the Charter were underway in the late 1990s and early 2000s. Those articles highlighted the intersection of political signaling games with a law-making paradigm that combines ‘interpretive modification’ with more radical ‘interpretive amendment’ of the UN Charter understood as a constitutional document for world society. The articles argued how a more fluid approach to the evolution of law in the UN Charter peace and security context has greater validity as legal theory than more classical legal-formalist approaches concede, even as such a fluid, evolutionary approach poses serious dangers to peace and security in the very ways that leads classical legalism to join hands with geopolitical realism in order to focus on textual formalism, on the inertia generated by the dominant view of a transnational community once called the ‘invisible college of international lawyers,’ and on associated bright-line limits on lawful armed force.
The prescriptive recommendations in those articles – that the non-P5 members of the Security Council and the broader membership of UN General Assembly should assume a responsibility to play a conscious and active countervailing role on the playing field of collective interpretation – will be revisited in the context of how states chose to respond to the Syria strike this April. Despite it being comparatively minor as exercises of force go, does the strike represent an incident with major law-shaping implications either for general humanitarian intervention or for a more specific norm related to armed intervention in response to chemical attacks? More generally, can focusing on this strike as a discursive event tell us something useful about the connection between international law and international relations in a transnationalized world?
* Craig Scott, “Interpreting Intervention,”(2001) 39 Canadian Yearbook of International Law 333-369; Craig Scott, “Iraq and the Serious Consequences of Word Games: Language, Violence and Responsibility in the Security Council”, (2002) Vol. 3, No. 10 German Law Journal; Craig Scott, “Postscript on ‘The Serious Consequences of Word Games’: The Signaling Game around the ‘Final Opportunity’ of Security Council Resolution 1441” (2010)
About the speaker
Craig Scott is Professor of Law at Osgoode Hall Law School of York University, before which he was an assistant, then associate, professor at University of Toronto Faculty of Law (1989-2000). Prior to starting his academic career, Craig served as law clerk to the former Chief Justice of the Supreme Court of Canada, Brian Dickson. After graduating from McGill University, he attended the Universities of Oxford and London (LSE) on a Rhodes Scholarship, and then received his LLB from Dalhousie in 1988. He served as Member of Parliament for Toronto-Danforth from 2012 to 2015 during which time he was Official Opposition Critic for Democratic and Parliamentary Reform.
A light lunch will be served. Please register via email to [email protected].