This is obviously an interesting take, and pokes holes at some of the main realist histories which have taken on a sort of “truth” through sheer repetition.  It is interesting to note though that this article focuses almost exclusively jus in bello (laws of war — how it is engaged in), and there is little mention of jus ad bellum (”Just War Theory”…laws of when wars can be engaged, etc.).  Some scholars, though no means all, are willing to give more of a pass to jus in bello (that things such as the Geneva Conventions are generally binding — note it is a very different question than which particular rules under the Geneva Conventions might be binding in any given situation) as more binding international law than jus ad bellum (such as arguments that the US war in Iraq is legal or illegal).  Was there any Greek thought on jus ad bellum?  On what might or might not be valid reasons to engage or not engage in war?

This is all the more interesting as the Melian dialogue is often used by realists in arguments about jus ad bellum more than jus in bello.  After all, the Melians are basically arguing that their neutrality should be respected under international law.  Athens goes with a “might makes right” approach… “you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must” (translated differently, and almost certainly more accurately, in Lanni’s article, but the sentiment is the same).  Therefore the Melians should pay tribute or be destroyed.  This is far more a question of what is a Just War and whether the Athenians can “legally” or justly/rightly attack the Melians at all, rather than a question of the actual conduct of the war once it is decided upon.  

On a separate note, it is also interesting to think how this might tie into later Western notions of laws of war, largely based on Judeo-Christian heritage and thus sometimes dismissed for being simply appeals to a higher power that have no independent or “legal” binding.  But if the Greeks also felt they were restricted in some way, perhaps others did too.  Is this just a question of what any “culture”’s views of such laws might be?  Some authors have pointed to everything from Sun Tzu suggesting limits on the way that wars were conducted, the concept of war crimes in the Hindu code of Manu, the 1305 trial of Sir William Wallace, through Grotius and onwards.  Is it worth looking to see if there are any shared values, no matter their source?  Is this something to work from, at least for jus in bello?  But the Greek values seem different than those classic Western jus in bello ones…  and perhaps many of those were because they were all part of the larger Greek culture (i.e. did the rules apply when Greeks fought non-Greek civilizations?  Could they destroy their temples and/or fight during their religious holidays?  My guess is ‘yes’, but I don’t know)? 

Lots to think about, in any event.

But I have a feeling that in the international legal discourse this might ultimately show one of the ongoing problems with international law discourse, at least at the general/public level.  The conference will cover some non-parties to the UN Convention on Conventional Weapons (CCW) and “a significant number of countries that produce or stockpile cluster munitions.”  (alas ”significant” is an incredibly vague term in the article).

But the big players, including Australia, China, India, Israel, Pakistan, Russia, and the United States, are “not expected to come.”  And while again it is a good thing to limit the use of certain horrific arms when possible, I would keep an eye out to see at what point any Oslo treaty, or even the fact of the conference, becomes referred to in more unsophisticated circles as international law somehow binding on non-parties or perhaps in other circles as evidence of “customary international law”, despite the fact that the primary makers and users of the weapons are not on board and even fought the debate at the CCW level.  We shall see.  I doubt Human Rights Watch will do this, but I am sure plenty of other people will.  All too often arguments claim that a treaty amongst a few parties (or even amongst many, but sometimes filled-in with parties with not much stake in the matter) or a few random cases are evidence of “custom”.  That leap is simply too big to make most of the time, especially without at least addressing the issue of the big detractors/non-signatories and also the biggie of international practice.

Perhaps the key is to make sure what any particular treaty means and not over-play the hand, thereby often undermining the real progress treaties can make.  And the key on the “other side” is not to take the inevitable “international law puffers” as the standard in the field and to not simply cite them to show why international law is invalid or weak or whatever.  This, unfortunately, also happens far too often and is just a sign of only taking on the worst arguments of your opponent. 

And of course, even if a treaty does not apply directly to parties it can sometimes ultimately pressure them, especially on a moral basis.  And it might be key for some countries, especially those where these types of weapons tend to get used, to make a statement about how they will not tolerate it.  And in the war of precedents/custom/who constitutes “authority”/etc. it at least makes an argument. 

In any event, this may be an interesting case study to follow and is perhaps part of a trend to get lots of treaties signed up even if some of the classic “world powers” are not on board.  Perhaps this means setting an “agenda” that the treaty countries hope big players will ultimately come around to?  Does that mean the big players should get involved, or do they only hamper the process?  In the meantime hopefully whatever treaty ultimately comes out, if any, can make an impact for those who sign up to it, and be the basis for wider action and perhaps ultimately more signatories.