Customarily one begins a discussion about the effectiveness of international law by quoting Louis Henkin’s famous remark that “almost all nations obey almost all principles of international law and almost all of their obligations almost all of the time.” For some, this empirical claim supports the notion that international law is a vital tool for furthering international cooperation across a broad range of issue areas. For others, the implicit suggestion that international law’s mere existence might be driving states’ behavior is a calamity of causal inference. Even if Henkin’s claim is empirically correct, effectiveness does not follow from compliance. For a third group, Henkin’s claim may not even be empirically correct. In at least some areas of international law, noncompliance may be relatively high. Deploying the same suspect causal reasoning that the second group worries about, international law skeptics have sometimes suggested that we might infer ineffectiveness on the basis of such noncompliance.

What would it mean for international law to be effective? There are different senses of the word. In a dis-cussion of the idea of effectiveness, then, the first step is to distinguish a variety of different ideas. The aim is not to decide which sense of the word is the right one, conceptually or linguistically. The aim should be to discuss which of these ideas of effectiveness is important, worth thinking about.

When we think of “effectivity,” we usually come to think of a pragmatic and factual construction. The idea of effectivity, however, is anything but concrete and raises a variety of questions of legal theory, legal philosophy, epistemology, and theory of knowledge. It should also be highlighted that from a linguistic standpoint the word effectivity does not exist in British English. The attachment of the International Court of Justice to her Majesty’s English explains that the World Court uses the French word (effectivité) when it seeks to refer to effectivity. These linguistic debates, however, matter less than the semantics and especially less than the consensus that effectivity ought to be opposed to “effectiveness.”

During the past several years, vetoes have been cast in the UN Security Council to block draft resolutions aimed at addressing the crises in Syria and Ukraine. Concerning Syria, Russia and China have vetoed three resolutions (the votes were 9-2-4 on October 4, 2011, 13-2-0 on February 4, 2012, and 11-2-2 on July 19, 2012). Concerning Ukraine, Russia vetoed a resolution just recently (the vote was 13-1-1 on March 15, 2014). The same question that arose in 1950 has thus arisen again today: can the General Assembly do anything when the Council is blocked because of a permanent member casting a veto? The answer is “yes.” But the reason is not because of the Assembly’s resolution 377A(V) of November 3, 1950 (“Uniting for Peace”), even though advocates of Assembly action frequently invoke it. Indeed, this resolution is for the most part no longer needed to provide a basis for Assembly “collective measures” recommendations when a veto proscribes the Council’s adoption of such measures. Moreover, the resolution does not provide a basis or justification for the use of force that would not be justified on other grounds, such as self-defense.

Larry Johnson’s answer to his own question is a qualified “no.” Surely he is correct when he says that the General Assembly does not need the Uniting for Peace resolution in order to consider a matter that is on the UN Security Council’s agenda. The International Court of Justice made that clear in its Advisory Opinion on the Construction of a Wall. It is only when the Security Council is actively pursuing the matter that UN Charter Article 12(1) requires the General Assembly to defer to the Council.

Johnson is also correct when he says that Uniting for Peace does not serve to enhance the authority that the UN Charter itself supplies to the Assembly to adopt non-binding resolutions intended to keep or restore peace. The ICJ also made that clear in its Advisory Opinion on the Construction of a Wall. Without relying on the Uniting for Peace resolution, the ICJ in paragraphs 27 and 28 of its Opinion approved the practice of the General Assembly to deal with matters concerning maintenance of international peace and security. The Court turned to the Uniting for Peace resolution only in the ensuing paragraphs of its Opinion, dealing with procedural matters related to the Assembly’s request for an Advisory Opinion.

The Uniting for Peace resolution together with the UN Charter prescribes a certain role for the General Assembly with regard to international peace and security. Larry Johnson addresses that role, but he does not consider a second question: how does the Uniting for Peace resolution affect the UN Security Council? The normative role of the Council is influenced not only by the Charter, but also by general international law. In this comment, I explore the normative role of the Council in fulfilling the Charter’s purpose to maintain international peace and security. I argue that the text of the Charter and the prior practice of both the Assembly and the Council help to determine the proper division of these organs’ respective tasks within the Charter system. I conclude that the Council alone exercises the constant control needed to enforce measures of collective security effectively, and that the Assembly is limited to recommending the consequences for states when threats or breaches of the peace occur.

In his essay on the “Uniting for Peace” resolution, Larry Johnson suggests that the General Assembly can recommend non-use of force collective measures when the Security Council is blocked because of a permanent member casting a veto. He rightly points out that today there is no longer any need to use Uniting for Peace for such recommendations. The General Assembly can and has recommended so-called “voluntary sanctions” in cases where it found a threat to international peace and security to exist. For example, in resolution 2107 (XX) of December 21, 1965 concerning the Question of Territories under Portuguese Administration, the Assembly, making no reference to Uniting for Peace, urged “Member States to take the following measures, separately or collectively:

1. (a) To break off diplomatic and consular relations with the Government of Portugal or refrain from establishing such relations;

2. (b) To close their ports to all vessels flying the Portuguese flag or in the service of Portugal;

3. (c) To prohibit their ships from entering any ports in Portugal and its colonial territories;

4. (d) To refuse landing and transit facilities to all aircraft belonging to or in the service of the Government of Portugal and to companies registered under the laws of Portugal;

5. (e) To boycott all trade with Portugal.”

Larry Johnson’s timely and important essay challenges both utopian and realist accounts of UN law and practice by reviving the debate over the nature and functions of the UN General Assembly, particularly the General Assembly’s power to deploy certain legal tactics not only to influence collective security deliberations in the UN Security Council, but also, more significantly, to provide some legal justification for multilateral military “collective measures” in the event of Security Council gridlock. One vehicle by which the General Assembly may assert its own right to intervene in defense of “international peace and security” is a “Uniting for Peace” (UFP) resolution, authorized by resolution 377(V) (1950). At its core, a “uniting for peace” resolution is an attempt to circumvent a Security Council deadlock by authorizing Member States to take collective action, including the use of force, in order to maintain or restore international peace and security. General Assembly resolution 377(V) does not require resolutions to take specific legal form—language that echoes the preambular “lack of unanimity of the permanent members [that results in the Security Council failing to] exercise its primary responsibility for the maintenance of international peace and security” is sufficient to render a given resolution a UFP, provided the General Assembly resolution calls for concrete “collective [forceful] measures.” For this reason, experts disagree on precisely how many times a UFP has indeed been invoked or implemented, although informed analysts suggest UFP has been invoked in slightly more than ten instances since 1950.

Larry Johnson’s essay on the UN General Assembly’s Uniting for Peace resolution (UFP) is a useful general analysis of issues arising from UN Security Council Permanent Member veto-paralysis. His essay, which focuses on the text of the original Resolution, is directed at asking whether the UFP retains a current “useful purpose.” Relying on a text-centric interpretation of the presence or absence of subsequent invocations of the UFP, he concludes that no “useful purpose” remains, in part because evolved General Assembly authority has displaced the need to specifically invoke the UFP to make recommendations on certain issues of international peace and security. Johnson then asks whether, under the original UFP or subsequently, the Assembly may recommend to Member States “enforcement” uses of force, notwithstanding the prohibitions of Article 2(4) of the Charter. He finds Article 2(4) to be an absolute barrier to Assembly authority to recommend those measures, but not for “innovative and inventive non-use-of force measures.”

Tom Ruys’s article in the latest issue of the American Journal of International Law is an erudite study of the prohibition on the use of force in UN Charter Article 2(4). Ruys makes many points with which I wholeheartedly agree. In note 241, he says that the case for cross-border drone attacks by the United States “verges on stretching criteria for necessity, proportionality, and armed attack to the point of absurdity . . . .” He is also right to reject emerging claims that the defense of necessity provides a basis for the lawful resort to force. Indeed, there is much that is truly excellent about the article—just not, unfortunately, its central thesis.

In her comment on my piece in the latest issue of the American Journal of International Law (The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)? ), Mary Ellen O’Connell expresses strong objections to the piece’s central thesis, notably that small-scale or “targeted” forcible acts are not as such excluded from the scope of the prohibition on the use of force in UN Charter Article 2(4). What is more, she sees the central thesis and narrative of the piece as a mere veil, behind which hides the true aim of the article, notably to set forth an extensive reading of the right of self-defense—which was allegedly also the point of my book on armed attack of 2010. In other words, an argument pleading for a broad interpretation of the prohibition on the use of force is in reality used as a Trojan horse, to lure the unsuspecting reader into accepting a broader right of states to use force, doing considerable damage to the Charter regime on the use of force.

I very much appreciate the seriousness with which Tom Ruys read my comments on his article. Rather than convince me that his thesis about Article 2(4) is correct, however, his reply provides further support for the opposing view. Minor force is excluded from Article 2(4) but regulated under other legal principles. Here are some examples:

1. • He accepts that there are many cases where states and courts have treated low level uses of force as regulated under rules other than Article 2(4). He also argues, and I agree, that some cases are unclear as to whether they support an Article 2(4) threshold or not. Yet, he fails to deal with the really important point in my comment that the great weight of authority clearly supports the threshold. In his reply he even cites with favor the recent report of the Independent International Fact-Finding Mission on the Conflict in Georgia, but the report supports the view that low level uses of force fall below the Article 2(4) threshold.

2. • Ruys concedes that some low-level uses of force are outside Article 2(4). In his reply he provides a new hypothetical of such a minor use of force, a bar fight in Afghanistan between soldiers of different nationalities. He says it is a matter of common sense that such a use of force is excluded from Article 2(4). Yes, common sense is one of the reasons to conclude low-level force is excluded. Given that he agrees on this, his article should be about where the threshold is, not an argument that there is no threshold at all. I argue that various other rules of international law from the principle of non-intervention to human rights law to the law of countermeasures indicate where the threshold is. In his reply he takes up an example I provide on “targeted killing,” asking where is the legal distinction between knifing an individual and launching a Hellfire missile at an individual, as opposed to launching a Hellfire at a group of people—the example I used. I categorize all Hellfire attacks as covered by Article 2(4) because of the amount of firepower involved. The Hellfire was developed as a tank-killing weapon. The number of persons targeted is not as significant as the fact the Hellfire involves more too much firepower to conform to the rules governing lawful law enforcement (police) deployment of lethal force. Lawful deployment of a Hellfire must comply with one of the exceptions to Article 2(4).

3. • Saying minor force is excluded from Article 2(4) is not the same as saying such force is lawful. The example just mentioned of knifing an individual, say by the intelligence services of one state acting on the territory of another state, implicates non-intervention, human rights, and countermeasures, among other rules relevant to regulating minor uses of force. In his reply, Ruys criticizes the adequacy of some of this law. No doubt some of the law is inadequate, but that is a different issue from the one he is examining, which is what law applies to minor uses of force.

4. • If Article 2(4) included minor uses of force states could not lawfully employ countermeasures involving minor uses of force in, for example, rescue and arrest efforts. Using force under today’s law, which does not include Ruys’s proposal to expand the right to use force in self-defense, requires Security Council authorization. This is clearly a problem for his analysis. States simply do not do this. The United States did not go to the Security Council to get permission to try to rescue the American journalist, James Foley, beheaded by ISIL militants in Syria in August or to detain Abu Khattala in Libya in June. Both operations followed the rules regulating lethal force by police and were lawful in my view, but not in Ruys’s view of the current law.

The globalization of administration is the most interesting thing happening in both administrative and international law. Richard Stewart’s article in the April 2014 issue of the American Journal of International Law is a brilliant tour of the horizon of the problems and prospects of this sort of lawmaking. It reflects the work he has done, along with Benedict Kingsbury, as a member of the Global Administrative Law (GAL) Project, housed at New York University Law School and joined by academics all over the world. I am a GAL fellow traveler, if not a paid member, and so I found the paper necessary. Global coordination is setting the standards for national administration in a vast array of issue areas, and surely is the most vibrant and rapidly developing form of international governance. It needs both organization and problematizing, and in this article, Stewart offers both.

In international environmental law, the elephant is an icon. Like other “charismatic megafauna” such as whales and pandas, the plight of the elephant has captured the imagination of the general public and generated a raft of international regulations. In efforts to protect the elephant, we can track many of the elements of international law that have been characteristic of the environmental field as a whole: historical beginnings in concerns to prevent the over-exploitation of a harvested species; the rise of notions of biodiversity that attribute intrinsic worth to nonhuman beings; the use of trade measures as part of international environmental agreements to aid enforcement efforts; the growing complexity of environmental problems with globalization; and the increasing inter-linkage of international environmental law with other fields of international law.

The development of rules and institutions relating to protection of elephants demonstrates the cardinal role of issue framing for international law. Frames are lenses that we use to highlight parts of reality and to promote particular policies over others. Over the past few decades, a wide variety of treaties and institutions addressing threats to elephants has developed, reflecting as wide a variety of frames. Some of these have helped elephants more than others.

The two African states Democratic Republic of Congo and the Central African Republic have been struck by civil war enmeshed with military involvement of neighbouring states. The ongoing conflicts have been fuelled by the fight over the countries’ natural resources, ranging from diamonds over gold to ivory. Since the end of the 1990s, the UN Security Council and other UN bodies have been dealing with the conflicts in Congo, and have been trying to bring to an end and to sanction the serious violations of human rights and of IHL that have been committed by all sides in those conflicts. The international community’s attempt to come to grips with the so-called “blood diamonds”, inter alia through a multi-stakeholder process and certification scheme is well known. With two resolutions of January 2014, the UN Security Council addresses the destabilizing effects of the illegal exploitation of wildlife.

In Romain Gary’s novel Roots of Heaven, Morel, a French national in despair over the plight of Africa’s elephants, resolves to promote an international convention that will ban all hunting of elephants. The setting is colonial Chad in French Equatorial Africa in 1953, and, evocative of the current crisis, the story relates that thirty thousand elephants had been killed that year alone. The theme of the use of international law to protect the elephant weaves throughout the narrative. Morel is obsessed with gathering signatures to his petition for the new treaty, to counter “the notoriously insufficient laws for the protection of the African fauna.” The key international treaty at that time was the 1933 Convention Relative to the Preservation of Fauna and Flora in their Natural State. This convention had been adopted at the urging of scientists anxious over the devastation of elephant (and other wildlife) populations, by colonial governments more concerned over the implications for the ivory trade. The convention regulated hunting for trade and for trophies, as well as subsistence hunting, and provided for the conservation of the elephant as part of a management plan for this very lucrative colonial trade. Admittedly, although its primary objective was the steadfast supply of elephants for their tusks, this treaty did stalwartly stand between traders, governments, and consumers on the one hand, and the final demise of elephants on the other.

The International Law Commission (ILC) decided in 2012 to add to its agenda a new topic on the “identification of customary international law” and to appoint Sir Michael Wood (United Kingdom) as special rapporteur. That project has reached an important point, with a series of Draft Conclusions having been cleared through the Commission’s Drafting Committee, and ready for the Commission’s provisional approval (together with commentaries) in 2015. As such, now is a propitious time for governments, international organizations, nongovernmental organizations, scholars, and others to weigh in on the merits of these Draft Conclusions, and additional ones that will be developed in 2015–16.

It is widely acknowledged that international organizations (IOs) indirectly affect customary international law by catalyzing and focusing State practice. But next year the International Law Commission and Michael Wood, its Special Rapporteur on the Identification of Customary International Law, are primed to address a more contentious issue: when and how IOs can directly contribute, like States, to custom.

This past summer the Commission’s Drafting Committee provisionally adopted a draft conclusion stating that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” Based on Wood’s Second Report dated May 2014, three topics merit particular attention in the year ahead: 1) distinguishing State practice from IO practice, 2) scrutinizing potentially relevant types of IO practice, and 3) considering types of cases in which such IO practice might contribute to custom. (While the Drafting Committee declined to include definitions in its draft conclusions, this article defines “IO” as Wood did in his Second Report: “an intergovernmental organization.”)

Customary international law often seems like a riddle wrapped in a mystery inside an enigma. According to Manley O. Hudson, even the drafters of the International Court of Justice Statute “had no very clear idea as to what constituted international custom.” The situation has not changed much since then.

I got my first taste of the difficulties in identifying custom when I was a junior attorney at the U.S. Department of State and was assigned the task of preparing the U.S. submission in a juvenile death penalty case before the Inter-American Commission on Human Rights. The juvenile death penalty is prohibited by the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights, but the question in the Inter-American Commission case was whether it is also prohibited as a matter of customary international law.