No casualty of recent wars has been mourned more keenly than the concept of international law. By the summer of 2001, so its standard bearers believed, international law had largely achieved its rightful primacy, guiding and ordering world affairs from the UN building in Manhattan. Philippe Sands, a prominent proponent of this view, claims that after the fall of the Berlin Wall, 'the liberal Anglo-American vision of a rules-based international system appeared to be becoming a reality.' True, there had been some backsliding in the Clinton years, but nothing to compare with what happened in response to 9/11. According to the jurist Richard Falk, September 11 saw a terrible departure from the norm that prevailed in the aftermath of the Second World War, when, so it was said, the right to make war - the jus ad bellum - came under strict legal control:
World War Two ended with the historic understanding that recourse to war between states could no longer be treated as a matter of national discretion, but must be regulated to the extent possible through rules administered by international institutions. The basic legal framework was embodied in the UN Charter, a multilateral treaty largely crafted by American diplomats and legal advisers. Its essential feature was to entrust the Security Council with administering a prohibition of recourse to international force (Article 2(4)) by states except in circumstances of self-defence, which itself was restricted to responses to a prior 'armed attack' (Article 51), and only then until the Security Council had the chance to review the claim.
LRB 22 April 2010 | PDF Download