The Concept of International Law
Definitions and Considerations
International Law (IL) in Historical and Contemporary Perspective
Historical Perspectives
General Factors
Spread of Roman Law through Europe
Revival of trade/commerce during Middle Ages
Formation of Leagues of Trading Towns for protection of trade and citizens engaged in trade
Development of Maritime Law made necessary by spread of international trade on the seas
Growing custom of States to send/receive permanent legations
Establishment of permanent standing armies
Renaissance and Reformation
Plans for maintaining International Peace
Discovery of America
American Revolution
David Bederman
Natural Law = something intrinsically part of humanity/society (especially human rights)
Positivism – states subject to no moral authority above them
Views:
IL is whatever states say it is
Natural Law is all well and good but
who gets to say what Natural Law is?
Rules:
Multipolarity good for development of IL
Anarchy or unipolarity bad for development of IL
Responsive to conflicts only, not preventative
Sovereignty → states are independent and autonomous; IL would not develop without independent states
Evolution: Unquestionable power of Monarch
Claim of particular authority to a territory
Power of state over citizens
Sovereign equality (freedom of states with other states freely at international level)
Popular sovereignty (power of people within State)
Limits: Globalization, neo-liberal economics, development of legal constructs like human rights, epidemics (i.e. AIDS)
“Disaggregated Sovereignty” → great control over own territory but all states face global issues *Current Status
Richard Falk
Successful areas of IL:
Management of Complexity → resilient capacity by sovereign states to contrive mutually beneficial ways of dealing with implications of interdependence
Problem areas of IL:
Containment of Conflict within Tolerable Limits → Procedures for prohibiting aggressive uses of force
Promotion of Decency in the World:
Equity (Poverty/Mass Misery)
Development (Increased quality of Int’l Life)
Avoidance of Catastrophe → failed because no political will to achieve restraint
Some Success: promotion of decency → defining equity and encouraging development
Contemporary Perspectives
TWAIL I: Anghie & Chimni “Third World Approaches to IL…”
Generally: Focus is getting voice heard (embrace 3rd World)
Focus on sovereignty and non-intervention
Historically developed during emergence/anti-colonial forces of 3rd World
GOAL: Democratic formation of IL
Reasoning:
Indicted colonial IL for legitimizing the subjugation and oppression of the Third World peoples
Pre-colonial 3rd States were not strangers to idea of IL
Non-rejectionist stance towards IL → IL could take steps to incorporate needs/aspirations of newly independent states
Principles of sovereign equality of states and non-intervention
Political independence in itself insufficient to achieve liberation, since economic structures which linked 1st and 3rd World continued to disadvantage South (therefore needs reform)
TWAIL II: More critical of system (expands success of TWAIL I)
Critiques:
3rd World State and global system as repressive → resort to violence and authoritarianism
align with 3rd world people, not 3rd world states
IL inherently colonial → Colonial expansion developed “Universality” characteristics of IL
Thus, Doctrine for assimilating non-euros into IL inevitably shaped by relationships of power and subordination inherent in colonialism
“Civilizing Mission” – characterization of non-euros as “others” who must be civilized creates crucial role for Race
Justifies “humanitarian” violence for saving non-euros from themselves
Northern Scholars and Northern Institutions set standards of understanding and approach to IL
Differences between 3rd World areas (i.e. gender, class, race, religion, etc)
Kohler
Global Apartheid
Poorer half own <1% of wealth
90% of household wealth in North America, Europe, and Select Asian Pacific nations
Structure
De Jurais Regime → SA Apartheid legally designed inequality
De facto results of global legal system
Did not account for important power centers in 3rd World (BRICKS)
POI → “North” has many sectors of extreme poverty, “South” has many sectors of wealth/power
North Policies: Violate justice and fairness, basic needs, human rights, equality, democracy, racial nondiscrimination
Feminist Approach
Organizational Structure of IL:
Women invisible, male perspective dominates
Men primary law makers
Impacts content of IL
Overlooks needs of women → regulation of conflict and trade/economics
Lack of Representation on IL Bodies
Normative Structure of IL
Assumption that law norms are neutral fails to recognize that law may impinge differently on men and women
Women’s experiences tend to be silenced or discounted
Private/Public Divide continues
Private sphere territory seen as hands off
i.e. Labor → home work not accounted for, despite enormous amount performed
Falk – “The World Order Between Inter-State Law and the Law of Humanity: The Rule of Civil Society Institutions”
Transnational Non-government (i.e. Amnesty International) → voluntary associations of citizens using information of abuses of citizens to further Law of Humanity
Activation of Peoples to pursue their emancipation from oppressive structures of government?
Is IL really law? → Yes, but functions differently from domestic legal order
Vertical:
Domestic legal order has enforcement capacity , legal decisions can be enforced
Horizontal:
IL not hierarchical as a de jure matter
Legally, IL is a State system based on formal relations between states
IL obeyed most of the time in ways we don’t think of
Non-Compliance Issues:
Sanctions → Difficulty, should it be codified?
Failure to systematically address sanctions remains
Mobilization of shame
Unilateral/bilateral sanctions by states, institutions, companies, UN
Int’l Criminal courts → direct responsibility of individuals
Viewpoints:
Critics → real forces behind IL is politicas
Positivists:
John Austin → no such thing as IL because no 3rd party “command” that is routinely enforceable
Hart → set of rules w/o rules of recognition therefore not law
Caveat: not lacking “primary rules of obligation” therefore Law in content, but not necessarily form
Koh – “Why Do Nations Obey IL?”
Rational Interests → obtain interests in wealth/power/etc
Kantian
Franck’s notion of Rule-Legitimacy
Causal Role of National Identity
Constructivists: identify formation and Int’l Society
Transnational Legal Process
Process:
Interaction
Interpretation
Internalize
Evolutionary Process
Compliance Theory based on trans-national legal process
U.S. → IL part of OUR law i.e. recognizing treaties
Sources of International Law
Overview:
*Article 38 of Statute of Int’l Court of Justice*
Sources:
Int’l Convention Rules
Int’l Customs
General Principles of Law
Other
Primary Sources: Treaties, Custom, General Principles of Law
Formally equal, but not equal in effect
Secondary Sources: Judicial Decisions, Teachings of the Most Highly Qualified Publicists of the Various Nations
Judicial decisions strange since many countries don’t follow precedent
Not Included: General Assembly Resolutions
Article 21 of Rome Statute
Compared to Article 38
More specific, clearer about hierarchy of sources
Logical for a criminal court
Civil and Criminal Law compromised by drawing judges from both speres
Specific to ICC, Art. 38 still the Keystone
TREATIES
Definition: Int’l agreement usually concluded between states in written form and governed by IL, can be embodies in a single or multiple documents, can be called many things (protocol, covenant, pact, etc) – 1969 Vienna Convention
Essentially:
Writing
Between states
Covered by IL (not a contract)
Strength: Exceptional → usually result of extensive deliberation and negotiation
Agreements freely made between states should be “binding”
Generally
Types: bilateral, multilateral, multilateral open to Ratification by every State in the world
Types of Regimes (obligations):
Law making → broad norms
Contractual
Legislative Treaties → create legal obligations to states that are non-parties to a treaty
Positivists – love treaties because state not bound by a treaty unless they choose to be party to the treaty
Creation
bi-lateral: come together, negotiate
multilateral: come together (usually the UN), expert text by non-state read, “1st reading” used to go over and create a first draft with bracketed text (unsettled issues), adopt by consensus (bad b/c lots of power if dissenting→ waters down the purpose)
Can take years, Sausage Metaphor applies, sometimes works fast if issue seen as urgent or emergency
Adoption: agreed upon text that is considered the treaty, not yet entered into
How to be Bound:
State signs the treaty
All you need in some cases
Sometimes – signature pending ratification i.e. Senator
Article 18: States that have signed but not ratified cannot take concrete steps to defeat the treaty
Sort of an Interim Status
Exceed/Accept to the Treaty → simply express desire to be bound to treaty
Recap
Once bound, must follow treaty practice sum suvante
If in need of ratification after signature, interim obligation not to take steps against the treaty
Treaty law tries to promote stability → if state enters into treaty, cannot renege when new regime enters domestically
Entry into force → treaty actually representing a set of legal obligation for the consenting parties
Usually set within treaty
Amendment of Treaties: formal process similar to original process
Takes time to change, which is good for stability purposes
Some protocols can be enacted to make amendment swifter
Prolectic event can be placed in a treaty so a future event triggers a change in obligation
Termination
Sometimes limited lifetime
Sometimes decided out of date
Rules for denunciation and withdrawal
i.e. fundamental change of circumstance, “higher law norm”
Protocol creates fairness and stability → all states give up something and get something
Interpretation
Ordinary Meaning Textual Approach → literal language of the treaty
Pro: no judicial activism
Con: Can be hard
*Ordinary Meaning Contextual Approach*
Mainstream approach, ordinary language keeping in mind the purpose of the treaty (negotiations, agreements, etc)
Teleological or Ultimate Purpose Approach
Interpret Language so as to make it work
Pro: Function
Con: Judicial Legislation (Judge deciding what treaty meant)
New Haven School of IL → Policy goals drive treaty interpretation
**Professor B does not like this approach to interpretation
Importance
Malanczuk, Akehurst’s “Modern intro to IL”
States more interdependent than ever
Treaties are the major instrument of co-operation in IR therefore instrument of change
McDougal, Lasswell, & Miller “The Interpretation of Agreements and World Public Order
Agreements are indispensable for establishing a stability in people’s expectations → lessens predisposition to arbitrary violence
Modest Minimum World Order → “constitutive process” develops through agreement including whole of people’s behavior
Agree to base values → allows work towards global goals in producing/distributing new values
Agreements even more important as world becomes flat
Definitions, Nature, and Significance
Ott,“Public Int’l Law in Modern World”
Types of Treaties: Natural, Contractual, “Law-making,” “Legislative”
Kelsen, “Principles of IL” → contractual, creates norms (through contractual obligations)
Kaplan & Katzenbach, “Political Foundations of IL”
Contract of various domestic legal systems
Bi-lateral and not legislation
Mutual advantage/reciprocal rights → “bargain concept,” governments subject to politics and therefore double as international legislatures
K overcome if not in government’s best interest (or an individual(s) political interest)
Legislative analogy helps see how treaties are more than a K
Bilder, “Managing the Risks of International Agreement”
Agreements result of centuries of human norm evolution
If countries didn’t think important, would not enter into so many and spend so much time
Often viewed as foreign policy told (broader than legal thinking)
Different degrees of commitment → view agreements to be performed in Good Faith consistent with the realities surrounding it
Consider Long Run policy
Constantly changes as circumstances and expectations change
Charlesworth & Chinkin, “Boundaries of IL: A Feminist Analysis”
Consent as basis of obligation → “male” in contrast of communitarian value alternatives
Low level of women in treaty making process ensures International matters of concern defined by men
Not many women in IL making body → ideas consistently being considered and evaluated from single gender perspective
NGO’s make limited progress:
Excluded by some governments
Not consistently present
Not allowed at drafting sessions unless specifically invited
Many governments use reservations to limit women’s rights
Conclusion/Acceptance
Starke’s International Law
Negotiation and Adoption
Authentication, signature, and exchange of instruments
Ratification
Ratification and Municipal Constitutional Law
Absence of duty to ratify
Obligation not to defeat the object and purpose of a treaty prior to its entry into force
Exchange or deposit of ratifications
Accessions and adhesions
Entry into force
CUSTOM
Role:
Helps define legal rights and wrongs not covered by treaty
Paves way for codification of standards
Facilitates treaty interpretation by filling
Helps define rights & duties of states not party to treaty-based Int’l Organizations
Give International Tribunal jurisdiction where lacking under conventional law
Scholarly Opinions
Venkata Raman
Legislation and adjudication do not exhaust process of “law”
Even where formal institutions provide guidance, lawmaking process can’t be described w/o acknowledging customs
*Lawmaking is “comprehensive and continuing process of communication comprising primarily of:
an agreement process
a process of formal enunciation through parliamentary organs, AND
the customary process”
**Legal assumptions based on uniform practices
Judge Hudson → Distinguishes law making customs from rules of courtesy/convenience customs
Practice
Concordant Practice by a # of states
Continuation over considerable period
Conception that required by IL
Acquiescence in the practice by other states
Opinio Juris → what states “think”
Ott, “Forming Customary Law” (Positivist Position – states don’t have to follow rules it has openly objected to)
Customary Law = habitual activity observed as a matter of goodwill at the discretion of the particular state. Find customary law by:
Examine the evidence of state practice
Sources:
Foreign Relations conduct documents
General expressions of state’s view i.e. official manuals
Both:
Actual government decisions
Legislation/judicial decisions of higher state courts
Both:
Comments on draft treaties
Voting in international bodies
Both:
Language used in treaties
Pattern of treaties
Problem: states may act out of momentary interest that causes variance from the norm
Determine whether required elements present and combined to general law
Element 1 → Opinio Juris: belief that certain practice is obligatory as a matter of law
Asylum Case Rule: practice if expression of a right belonging to one party and a duty to the other
Lotus Case Rule: cannot infer opinio juris (legal obligation) unless states involved are “conscious of having a duty”
Lotus Principle: sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition e.g. custom w/ force of law that restricts discretion of State re bringing an alleged criminal in the high seas to trial for killing its citizen.
Problem: Forms new laws based on assumption that the law is already legally binding
Practicality: infer opinio juris unless clear indications to the contrary
Element 2 → Duration (something totally accepted, something brand new)
Short duration may be offset by strong showing of other elements
Element 3 → Uniformity and Consistency
Possible for SOME and still be a RULE
Practice of states not varied and no discrepancies
Element 4 → Generality and whether practice is fairly widespread among a majority of states
Universality not required
Persistent objector – not bound by particular custom
Subsequent objector – not able to escape being obligated unless other affected states acquiesced
If no persistent or subsequent objection, then bound w/o acceptance
D’Amato
Claim is not an act → articulates legal norm by not material component of custom
Claim not act until it takes enforcement action
No precise number of acts or restraints necessary to satisfy material element of custom formation
Persuasiveness depends on number of precedents
Higgins
3 Views
Rules Based – IL dependent upon power (get away with rule breaking)
Process Based – authority & control = law → non-compliance over time removes normative status as a norm
Grey Area – if no higher rules (i.e. No Torture), cannot be treated differently from ordinary rules in practice
Analysis Tools of Custom
New Norm Requires both:
Practice → forms, changes, and kills norms
No “high normative status” needed
Opinio Juris of normative status
Norm doesn’t die unless majority of states withdraw both practice and opinio juris
Higgins believes customary law is a Process, not a set of rules (Jus Cogens → preemptory norms (“the very big no-no’s”)
Uses torture to show custom recognition despite violation since opinio juris still exists
Legitimacy Issue? – acting outside law changes law itself.
Process Based: violations of customary norms way of changing the law
Higgins Claims Practice of torture is illegal, not actual practice of committing the act
Rules Based: violations reflection of power politics
Cases
North Sea Continental Shelf Case (ICJ 1969)
Facts: Denmark and Netherlands want Shelf divided according to equidistant principal of Geneva Convention on Cont. shelf
Issue: Does treaty give rise to customary law?
Consequence would be to bind non-signing parties
Argument: Article 6 accepted by opinio juris (binding on non-convention parties)
Problems with Argument:
Equidistant principal comes second to agreed upon boundaries
Contains special circumstances and controversies
No opinio juris → no justifiable interest of mandatory rule
*Not settled practice
**No evidence of belief that practice is obligatory by the existence of law requiring it (legal obligation)
Holding: Treaty possible starting source of customary law, but must satisfy Practice and Opinio Jurisrequirements
Nicaragua v. U.S.
Facts: U.S. used military and paramilitary forces in Nicaragua
Issue: Do non-aggression pacts (both U.N. and OAS) create or deny opinio juris? Does custom law supercede the U.S.’s reservations to the U.N. Charter?
U.S.’s Claim: Custom Law & UN Charter are same therefore U.S. rejection of ICJ jurisdiction etc prevents suit
Nicaragua Claim: Customary law not necessarily identical in context and application of conventional rule
RULES:
Court must find existence of opinio juris confirmed by practice to establish customary law
When conduct inconsistent with rules, treat as breach of rules, not new rule
Holding: Principle of non-use of force is customary law unconditionally. UN/OAS does not limit UN Charter codifies Customary Law against force
“universal international law”
Scholarly Opinions Related to Universality
D’Amato
Universality of Custom – “Objectivist” or “Sociological” View
Principle: Reliance on precedent drives universality of custom → sets expectations
Restrictiveness of Custom – “Participatory” or “Volunteerest” use
Principle: only nations that participates in custom formation process obliged
Favored by 3rd World
Problem: Typically, conflicts arise b/c states haven’t participated in custom formation process
Leaves us w/ little relevant IL
Wang → 3rd World advocates gradual rewriting of IL to reflect global post-WWII change
Janis
IL Faults:
Diverse state practices makes consistency hard to find
No assurance different decision makers (i.e. judges) will reach same conclusions
Process of making customary law creates conflict
Chinkin, “Gender Deficiency”
IL Leaves out many and varied practices
No customary law condemning violence against women since non-conferring states disregarded
Violence against women
Kelly
Roberts
General Principles of Law
Article 38(1)(c)
Janis’s Views of different General Principles
Natural Law – beyond state consent
Positivists – requires state consent/practice
Comparative Law – found in all systems of law (most common)
Lauterpachy
Residuary source for rules that are unwritten
Custom difficult to find (Practice & Opinio Juris)
General principles just have to find Codified Law
Gap Filler → when no principle found in customary law or no treaty is on point
i.e. no existing rule, country free from a rule, or existing rule incomplete
“Civilized Nations” – subjective language → now means organized sovereign states of the world (not non-state entities)
Reality → courts cite when principle in question found in most every country in the world (Civil, Common, Islamic)
Usually procedural, not substantive
Scharter → Principle must make sense in Int’l arena
i.e.. specific crimes (murder) not appropriate at International level in their simplest state
Certain types of these crimes appropriate (Genocide)
Generally Accepted IL Noted:
Intrinsic Law: Engagement Violation requires reparation, Can’t take advantage of own wrong, Can’t transfer more than you owe
Municipal Law: Res judicata, indirect evidence, prescription
Distinction between General Principles of Law and Equity → general notions of equity takes extra-legal notions (fairness & justice) into legal decision making (not codified)
Jus Cogens → preemptory law accepted by states as whole with no deviation allowed unless restructured
*Extremely important values, yet no list
Legal Consequences: Trump persistent objectors, voids an already established Treaty, can raise a General Principle in the adjudication process
Charlesworth
Deficiencies:
Gender principles of states biased against women therefore using it as a basis for IL institutionalized gender bias
Women’s rights not part of jus cogens
Potential Uses
International organizations can step in to make gender roels part of general principles/jus cogens
Response to emerging contemporary issues
Approaches to solving Problem:
Identify gender problems
Make feminist rules universal, not state specific (i.e. Food, reproductive freedom, violence, equality, etc)
Incorporate female rights into jus cogens
Highlights problem between Naturalists and Positivists
Overarching law vs. what states consent to
Subsidiary Sources of IL
Judicial Decisions
Compromise between Civil and Common Law Counties
Art 59 → no binding force of Judicial decisions except between the parties
Reality → World Court follows own jurisprudence to create expectations etc
ICJ Judgments, ICC, International Criminal Tribunaals …etc and even some domestic court decisions
Critique: Reality is the courts are making law
Teachings of Highly Qualified Publicists
Works of writers helps understand primary sources of law → direct evidence, not speculation, taken into account
Historically important
West Rand Central Gold Mining → authors more often write about what the law should be and not what it is
Schachter → writers represent their own state, get around be citing very broad sources
Section 38(c)(2) → if parties agree court could decide what is fair according to the facts and not the law rarely happens. Different from equity since fact specific.
Equity
Article 38(2) – Article 38 “shall not prejudice the power of the Court to decide a case ex aequo bono [according to what is right and good], if the parties agree thereto”
Equity = Justice therefore shaped by norms of society
Changes with the changes in society over time (fluid)
Legal determination shaped by general principles of equity that may be part of law but not codified
Shacter
5 Uses of Equity
Equity as a basis for “individualized” justice tempering the rigours of strict law
Equity as consideration of fairness, reasonableness and good faith
Equity as a basis for certain specific principles of legal reasoning associated with fairness and reasonableness: to wit, estoppel, unjust enrichment, and abuse of rights
Equitable standards for allocation and sharing of resources and benefits
Equity as a broad synonym for distributive justice used to justify demands for economic and social arrangements and redistribution of wealth
Upside: Fairer result from flexibility in the law
Downside: Subjective
Lapidoth
Diversity of opinion on “justice” etc hinders equity’s role between nations
General principle or form of interpretation?
Other “Sources” of International Law
UN Charter and Other Intergovernmental Organizational Resolutions
Note: all countries represented with equal vote and no veto power, gives everyone an equal voice
Ott
Possibilities:
No legal effect for UN Charter Resolutions
Authoritative interpretations of UN Charter → enforceable as a treaty
Helps create customary law → agreement shows opinio juris or creates practice that leads to customary law
Quasi-Legislative Effect → if so unanimous in an area devoid of law (i.e. 1960s space resolutions)
Strength of status depends on:
Language
Voting records
Whether resolution repeated or not
Higgins: Security Counsel Resolutions not strictly sources of IL but ad hoc sources
Security Counsel may create obligations, not necessarily law, unless leads to customary law
Norms to Consider
subject-matter of the resolutions in question
whether binding or recommendatory
the majorities supporting their adoption
repeated practice in relation to them
evidence of opinio juris
Tunkan: when security counsel repeats over time, becomes law
Van Hoof – “Other Source” approach
Resolutions constitute a separate, independent source of international law
Sohn: unanimously approved General Assembly declarations may be seen as “leading to the creation of new international law applicable to all states” and representing “a new method of creating customary law.”
Van Hoof’s response: drops the requirement of “usus [i.e. practice]” and that therefore one is faced here with “not just a new method of creating a customary international law, but rather a new method of creating international law altogether
Soft Law approach (middle ground between hard law and non-law)
General Assembly resolutions and other such prescriptive communications do not create full-fledged rules of IL capable of fitting into the traditional “sources” categories but nonetheless fulfilling “at least some, if not a great number of the criteria required for rules to be considered rules of IL and [which therefore] cannot be put aside as non-law” van Hoof
Downside: challenges legitimacy of IL sources
Upside: Useful if no other standard on point
*Reveals legal value of ambiguity
Indicates potential for IL to change over time, also reveals incompleteness of IL
Recap-
Practical Questions to consider:
Who is going to decide the case?
Who is making the law?
Purpose: Legal norms do not simply exist; they were manifested in a continuous process of evolution and hence emanate from several different sources
Non-Conventional Concreted Acts and Declarations
Aust: “Lawyers practicing in foreign or other ministries deliberately utilize instruments which employ carefully chosen terminology to indicate that, rather than create international legal rights and obligations, the intention of the participants is to record no more than mutual understandings as to how they will conduct themselves.”
“such instruments have been variously described as ‘gentlemen’s agreements,’ ‘non-binding agreements,’ ‘de facto agreements’ and ‘non-legal agreements’”
The Application of International Law
Application of IL at the International Criminal Court
Tribunals: Rwanda and Yugoslavia
Weakness: dealt mainly with actions of mid or low level personnel, most leaders responsible for war crimes escaped being brought before the court
Strength: reaffirmed/advanced principles of criminality and individual accountability laid down at Nuremberg
Not triggered by massive human rights violations, but by “threat to international peace and security” under Chapter VII of the UN Charter
ICC
Creation
Rome Statute
U.S. signed and subsequently unsigned
U.S. “Hague-Invasion Act” allows U.S. to rescue any soldier held by the ICC
State on territory offenses allegedly happened, if ratified ICC, extends ICC jurisdiction
Procedural Limit:
Can only hear cases which occur after 1 July 2002
Operates on Principle of Complementarity
ICC will have jurisdiction only when national legal system is unable or unwilling to carry out a genuine investigation or prosecution of persons alleged to have committed international crimes.
Safety Net, in effect
Fears: use for a political advantage (especially against powerful countries like the U.S.)
Dusko Tadic Case
Facts: Serbs attacked Croats and Muslims, put them in concentration camps, where they were tortured/murdered/sexually abused
Tadic accused of being part of violations:
1991 – banned Muslims from his pub, lead Serb party in town.
Bosnia breaking away from Yugoslavia, has slim Muslim majority, then Bosnian Serbs trying to break away from Bosnia, Tadic’s village is in the middle and has 15,000 Muslim residents
2,000 Muslims killed in artillery siege, then round up rest of Muslims, 5,000 subsequently executed
Tadic pointed where to bomb and who to execute (intellectuals etc)
Tadic spends a lot of time in camps because pub destroyed economically
Charges: Crimes against humanity, Grave Breach, Violation of the Laws or Customs of War
Crimes Against Humanity – Customary IL – attack on civilian population, widespread and systematic
Grave Breach – Treaty IL – certain heinous violations of the Geneva Conventions, comes from IL that applies only to certain types of conflict
Applicable Articles of ITCY Statute:
Article 2 – Grave Breaches regime of the Geneva Conventions
Applies only to:
Armed conflicts of an international character
Offenses committed against persons or property regarded as “protected”
“Protected” = civilians in the hands of a party to a conflict of which they are not nationals
Article 3 – Customary International Law that compromises ‘laws or customs of war”
Acts committed within the context of an armed conflict (international or not)
Acts have a close connection to the armed conflict
Acts are committed against persons taking no active mart in hostilities
Article 5 – Crimes Against Humanity (Customary Law)
Must occur in context of an armed conflict, whether international or non-international in character
Prosecution must prove:
Armed Conflict
Acts occurred within the context of that conflict
Acts committed against protected persons
Holding: guilty, except for Article 2
Majority: Article 3 & 5
Armed Conflict existed at all times in relation to offenses
Victims were members of protected group
Offenses charged committed within context of Armed Conflict:
Actions part of ethnic cleansing goal
Prisoner policy determined by Republika authority
Dissent: Article 2 applies
“at all times relevant to the indictment, the armed conflict in opstina Prijedor was international in character and the victims of the accused were persons protected by the Geneva Convention Relative to the Protection of Civilian Persons in Time of War” → find guilty of Grave Breach
The Federal Republic of Yugoslavia (Serbia and Montenegro) “effectively controlled” the VRS
Final Holding: Guilty on Articles 2, 3, and 5
Crux: What kind of conflict was it?
Dissent: International armed conflict since Bosnian-Serbs surrogate for Serbian army
Majority: only domestic law can be applied since within own country
Policy on International Necessity: limit inter-state conflicts so large conflict doesn’t result
Yet most post-WWII conflicts have been internal Sovereign state issues
Test: Does Yugoslav Army still have effective control of new Bosnian-Serb Army?
Appellate Decision Dissent:
Evidence supports that the Yugoslav Army had effective control of the military group → Yugoslavia vs. Bosnia becomes Bosnia-Serbs vs. Bosnia
Yugoslav army supplied, paid, communicated with, and essentially continued there presence in the region, just under a different name
Advocated Test: Dependency and Control
Individual Criminal Responsibility
Culpability Requirements:
Planning
Prepping
Executing Actions
ICTY Article 7 Requirements: Planned Instigated, Ordered, Committed, or otherwise aided and abetted in the planning, preparation, or execution of a crime… shall be individually responsible
Look to Neurembeg & Tokyo: Knowing Standard
Principal
Accessory or aided/abetted
Consenting part
Connected w/ plans
Member of organization or group connected (not adopted by ICTY)
Academics
Meron: Todic advanced law, interest in Humanitarian Law, put War Crimes into IL scene
Drumbl: less optimistic than Meron
Victor’s Justice
International Criminal Law a collective problem, not an individual problem
Individual responsibility not appropriate
Some justice or all justice?
International criminal tribunals may allow attention to be deflected from the deeper causes of the conflict
Discussion
Truth and Reconciliation Commissions: confessions in exchange for amnesty
Universal Jurisdiction: invoked to deal with alleged perpetrators of mass atrocities
Victim Nationality/Location of the crime supposed to be irrelevant (i.e. torture)
Difficult to enforce (i.e. Pinochet)
Application of International Law In General
Application of IL in International Plane:
Generally:
Diplomatic Arena → foreign office to foreign office
Parliamentary-Diplomatic → through recourse to formal conferences
Parliamentary Arena → legislative/quasi-legislative assemblies
Executive Arena → secretariats of International Organization
Measures of Self Help
Academics
Chen
Diplomatic negotiations (bi-lateral) generally the accepted method of solving differences
Third Party Procedures exist when bilateral deadlock:
Good offices, Mediation, and Conciliation; Pre-emptive regulations; judicial processes
Limit – Consent of both parties (ICJ)
UN obligation: peaceful resolution
Once reaches security counsel (Peace Threat) level, 3rd party solutions have generally failed
SELF HELP → Unilateral coercive measures
Requirements:
Necessity → all good faith efforts to solve peacefully failed
Proportionality → appraise by all relevant factors
Last Resort
Current Trend in International Legal Norms: prevention rather than correction (treaties, intergovernmental organizations)
Parton: ICJ
Peaceful settlement
Progressive development of IL
Jurisdiction
Contencious (State vs. State)
Meant to be binding, but no enforcement
All parties to UN Charter party to Statute of ICJ automatically
Party to ICJ not enough → counties must consent to ICJ jurisdiction
Article 36: ¶1 → Both parties refer case to ICJ
Ratifying treaty that directs dispute to ICJ (subject to Reservations) -? Considered consent
¶2 → states regard ICK as compulsory in certain situations ➔ noth countries have made declation opening themselves to jurisdiction
Option Clause → agreements to compulsory jurisdiction
U.S. → interpretation of Treaty of IL, existence of potentially significant Fact, nature/extent of reparation
Reservations → agreements with other countires to settle issues via tribunals, disputes determined by U.S. to be within domestric jurisdiction of U.S., disputes over multi-lateral treaties unless all are party to or U.S. consents
¶5 → Declaration of compulsory jurisdiction of ICJ predeseccor that have not been revoked
States acquiece to case (Reply to complaint w/o contesting jurisdiction)
“Forum Proragatorum”
Advisory → respond to legal questions from authorized UN agencies (not binding, but usually authoritative)
Many different international courts
Problem: no hierarchy for these courts
No precedent/stare decisis requirement
People’s tribunals where NGO’s and Individuals putting together non-judicial tribunals giving press to issues
Application of IL on the National Plane
Generally:
Issue = how do states rationalize interaction between International Law and Domestic Law
Monism → IL and DL part of same legal system. Within that legal system IL is hierarchically superior
Dualism → IL and DL separate systems, IL only part of DL if codified by national structure’s municipal law authority
Academics
Starke: defines monisim and dualism
Brownlie
Dualist: IL and DL regulate different subject matter
Neither legal order has the power to create or alter rules in the other
When DL provides that IL applies in whole or in part, merely an exercise of authority of DL
Monism:
Lauterpachy – supremacy of IL even within the DL, coupled with well-developed views on the individual as a subject of IL
Antipathetic to the legal corollaries of existence of sovereign states
Reduces DL to status of pensioner of IL
IL best available moderator of human affairs
Logical condition of the legal existence of states and therefore of DL within the sphere of legal competence of the states
Borchard: IL enforced through domestic practice
IL enforced via restitution and damages if inconsistent with domestic law
Executive/Legislature responsible for application of IL
McDougal – New Haven Approach – IL as a process, not a set of rules
IL Problem: “reciprocal impact or interaction, in the world of operations as well ass of words, of interpenetrating processes of international and national authority”
Effective power is the factor which actually shapes authoritative decisions
Individuals, private associations, parties, and pressure groups have authority
Little respect for state boundaries
Interrelation between IL and DL in practice:
Monist approach: Germany
IL takes precedent over DL
Strict Monism → also encourages German action in creating IL
Civil Systems tend to be more monist
Problem: prevents equitable remedies in some situations
Local action can be more fair based and flexible
Dualist approach: Australia
IL not effective unless codified by domestic law
Strict Dualist → Common Law tradition
Yet Mabo v. Queensland gives IL an influence
Teoh: Ratification of IL creates expectation that executive will act in accordance with convention
Limit: not legislatively enacted
Response: legislature codified requirement of codification of IL to be applicable
Solidifies sovereignty
Mixed Dualist-Monist Approach: The United States
Generally: treaties supreme law of land yet subject to Constitution and Subsequent Federal Statutes
Pact sunt servanda → good faith duty to comply with treaty obligations
Pro: establishes expectations
Con: limits sovereignty
Charming Betsy Presumption: where possible, U.S. courts to read IL as close to DL as possible
Anti-democratic? → criticism of sovereignty trumping
The Impact of International Agreements upon U.S. law
Weston – “Treaties”
Treaty – usually denotes only those international agreements that are concluded by the federal government and ratified by the President upon receiving the advice and consent of the Senate (2/3 Majority)
RUDs contingencies → president can/may decline to Ratify a treaty
(ii) President able to suspend/terminate treaties w/o Senate
Reid v. Covert – treaties may not controvene any constitutional prohibitions like Bill of Rights and 13th, 14th, & 15th Amendments
Treaty binds courts when self-executing or codified
Self-executing → U.S. concept, require no legislation to be operative in the United States
Weston – “Executive Agreements”
Types:
Treaty Based – same validity and effect as the treaty itself
(ii) Congressional Executive Agreement – based on either a prior or a subsequent act of Congress authorizing the making of the agreement or providing general authority for the executive action needed internationally to implement the legislation in question
(iii) Solo – entered into exclusively on the basis of the President’s constitutional powers as chief executive and commander-in-chief
Issues:
Can congress legislate to prohibit or otherwise limit sole executive agreements
(ii) Whether president alone may make an agreement inconsistent with an act of Congress, or alternatively, whether a sole executive agreement may supersede earlier inconsistent congressional legislation – prevailing view = solo executive agreements inoperative as law to the extent they conflict with a prior act of congress in an area of congressional competence
Customary IL before U.S. Courts
The Paquete Habana, The Lola
Facts: U.S. took fishing vessel as spoil of war
Issue: with no treaty/federal stance, can IL govern?
Holding: Ancient uses of civilized nations used (customary law), fishing vessels traditionally exempt from prizes of war
Garcia-Mir v. Meese (11th Cir. 1986)
Facts: refugees detained under authority of Secretary of State
Background: Castro let Cubans out → 124,000 undocumented migrants got out, 23k had criminal records (though some for politics)
(ii) Two Groups: 1 never given parole; 1 given parole but subsequently revoked
Plaintiff’s Claim: Executive Act from Secretary of State not sanctioned by President himself therefore against Paquete Habana
Issue: whether an affirmative legislative grant of authority to detain has been granted
No affirmative grant to justice department to detain without headings since applicable statute did not expressly authorize indefinite detention
Court: Look to Executive Act(s)
Holding: Constitution provides president with ability to delegate his authority to executive departments to act on his behalf
Group 1 → specific congressional authority granting authority to detain
(ii) Group 2 → Executive Act (Secretary of State) deemed sufficient to find IL not controlling
Distinguish between Paquete Havana: executive actors complied with IL but lower officials ignored, versus unilateral act by executive
Theme: DL and IL conflicts create problems
PROBLEMS OF INTERNATIONAL LAW AND WORLD ORDER: ambiguousness of answers to current problems is a result of the worldwide controversy created by unprecedented peril of our time; universal solutions have yet to be found
Problems of Conflict Prevention – Main Issue: the legality of outside intervention in “internal” conflict and the role of the United Nations and regional organizations in reacting to such conflict
Recognition of States and Governments
Frowein – “Recognition”
Recognition of States
Typical Requirements
Permanent Population
Defined Territory
A Government
Capacity to enter into relations with other states
Modern Requirements: effectiveness of the separation of forcible separation from a mother-country
Requires independence in relation to some State which for political reasons wants to use the new State which it has helped come into existence
Must not gain independence brought about by a white minority government in a former colonial territory (Rhodesia)
Modes of Recognition:
RULE: only unequivocal act that forms full recognition is establishment of full diplomatic relations
De facto (implied): implies hesitation on party of recognizing government either as to the coming into existence of the new state or its territorial situation
De jure (express)
Legal Consequences
RULE: Recognition does not create a state. It only confirms that an entity has reached statehood.
Anzilotti & Kelsen → constructive meaning based on legal consequences of a specific factual situation
Lauterpachy → recognition constitutively settles dispute of statehood
Impact of UN on Recognition of States
UN membership weight cannot be denied
UN a forum to coordinate non-recognition
Recognition of Governments
RULE: There must be a special reason to question recognition of a new government
Requirements:
Control → “effective control” not brought about by foreign intervention (if revolutionary government, only legally recognizable if conflict outcome clear and former government’s authority reduced to negligible area)
Consent or Acquiescence of People
Comply w/ International Obligations (does not have to create new obligations/relations) → simply “diplomatic recognition”
Modes: more likely recognition is implied → i.e. continuation of diplomatic relations
Legal Consequences: Upon recognition, cannot question right to represent the state
Evaluation: Abuse possible if recognition based on ideological and political motives
Tinoco Case arbitration decision by Chief Justice Taft
Rule: non-recognition by other nations usually appropriate evidence of in deciding status of govt. but other evidence must be taken into account too – are there any objections or power disputes to the status of that govt internally?
Exception: Recognition vel non determined by illegitimacy of origin, not de facto sovereignty
Requirement: Government established in such a way that all within its influence recognize its control and no opposing government assuming to be a government in its place. Note: Principle of the Continuity of States – state bound by obligations entered into by govt that has ceased to exist.
Notes:
Effective Control: accepted as guide to recognition of governments
Tobar Doctrine: Governments that come into power w/o benefit of elections or by extra-constitutional means should not be recognized
Estrada Doctrine: change of government an internal matter for each state, foreign states should ignore revolutions and keep their diplomatic missions accredited to whoever may effectively operate the government at any given moment
Trend: abandon recognition → “establishment of relations does not involve approval or disapproval but merely demonstrates a willingness to conduct affairs with another government directly”
UN → has changed from accrediting Effective Control Regimes to a Democratic Requirement
Civil War
Three Levels of Crisis
Rebellion – challenging faction seems capable of rapid suppression by normal internal security procedures
Implications
External help to the “rebels” illegal
Foreign assistance to incumbent government legal
Insurgency – more sustained and substantial intrastate violence than “rebellion”, less sustained and substantial intrastate violence than “belligerence”
Implications
Permits outside states to participate in the internal conflict without finding themselves “at war”
“Insurgency” classification often used to protect the economic and private interests of nationals and to acknowledge political facts arising from particular successes of insurgents
Belligerency – essentially the same as a war between independent sovereign states, giving rise to definite rights and obligations under IL
Implications
Outside state has formal option of joining one of the “belligerents” against the other(s) or to remain strictly neutral
Compatible with UN system’s fundamental commitment to peaceful conflict resolution?
Requirements (Lauterpacht)
Armed conflict of a general character (not purely local) within the State
Insurgents must occupy and administer a substantial portion of national territory
Insurgents must conduct the hostilities in accordance with the rules of war and through organized armed forces acting under a responsible authority
There must exist circumstances which make it necessary for outside States to define their attitude by means of recognition of belligerency
Academics
Cassese “IL in a Divided World”
States prefer classification as NOT International Conflict
Existence of tribunal feuds or other forms of conflict in many 3rd world states, particularly in Africa, where the arbitrary borders decided upon by colonial powers are likely to lead to secession
The growing tendency of Great Powers to replace direct confrontation with war by proxy, through support for “loyal” or “friendly” political and military groups in small or middle-sized countries
States view of Insurgents
Currently: rudimentary
Theory: If all members of the international community were to decide that a certain insurrectional party is devoid of the requisite conditions, that party would not acquire any international status
Reality:
There will always be one or more States inclined to recognize certain rebels
Even other states may at a certain point find it useful to concede that a group of insurgents has become a legally independent subject 95
Duty bound to refrain from supplying assistance to rebels
International regulation looks on insurgents with disfavor
International regulation grants incumbent Government right to enlist foreign help for wiping out rebels
Only very few rules address themselves equally to rebels and to States
The Point:
Insurgents state-like, BUT
Transient and have limited international capacity in two respects:
Only a few international rights and duties
Only “associated” to a limited number of existing states
IL Regulations of fighting between incumbent governments and rebels
RULE: rebels are not granted the status of lawful belligerents → remain criminals infringing upon domestic penal law
Effect: recognition of belligerency obsolete → rebels in a greatly inferior position in relation to central authorities they fight
Effects of Recognition:
Enabled to enter into international agreements and send/receive diplomatic missions
Duty-bound to respect foreigners living in the areas under their control
Right to demand respect for certain international humanitarian rules on armed conflict
Obligation to abide by humanitarian rules
Rules mostly aim at protecting non-combatants only
Methods of combat not regulated (except for sparing civilians aim)
In practice, almost no restraints on armed engagements of Governments and rebels
Customary Law (Result of Spanish Civil War ruinous effects)
Customary Rules of Armed Conflict:
Ban on deliberate bombing of civilians
Prohibition on attacking non-military objectives
Precautions must be taken when attacking military objects
Rule authorizing Reprisals against enemy civilians and consequently submitting them to the general conditions exacted for reprisals
Required Characteristics of insurgents:
Organized administration effectively controlling a portion of the territory of the State
Organized armed forces capable of abiding by IL
Reality → governments and rebels rarely protect non-combatants
Possible explanations:
Civilians often take sides in domestic strife and actually contribute, at various levels, to the struggle
In many states (chiefly Africa) the population is split into conflicting ethnic and cultural groups which consequently do not share the feeling of belonging to one and the same country
Charlesworth
Theme: Women disproportionately affected by armed conflict
Human Rights Abuses
Problem: Women as needers of protection
Language: protection rather than prohibition of the violence
Rape not included in category of grave breaches of international humanitarian law
Progress: ad hoc tribunals and ICC
Limit: engages sexual violence only when aspect of the destruction of the community
Problems:
Distinction between state/nonstate actors
Focus only on sexual violence
Obscures protection of economic, social, and cultural rights of women
Economic sanctions significantly impact women and girls
Internal Conflict
Theme: legal protection to combatants (men) and ignores civilians (women)
Individual Accountability
Take Away: tremendous advancement, but running criticism
Statutory Sources
Geneva Convention
Common Article 3
2nd Additional Protocol
Unilateral Intervention
Higgins
Definitions
“Intervention” = impermissible use of force
“Aggression” = military use of force and unlawful military use of force
Practice: neutrality not realized
Reasons to support existing government
Argue that what is going on in the country concerned is at the moment mere insurgency, mere rebellion → neutrality not required
Must keep in mind contemporary doctrine of self-determination
Arms may continue to be sold to the lawful government provided that the belligerency has not been recognized
Notes:
Intervention at Request or with Consent of Legitimate Government (Brownlie)
Consent Request vs. Self-determination of People
Consent Request → legality confirmed by subsequent practice of UN members giving consent or acting in response to such a request/consent
Self-Determination → external assistance of rebellion may be lawful provided the rebellion is in pursuit of the exercise of the right of self-determination
Authority to request can be questionable
Government set by IL as “effectiveness”
Intervention Grounded on Right Conferred by Treaty
Concerns:
What government represents treaty?
Conflict between IL duty of non-intervention and assisting thru treaty
Treaties a result of unequal relationship?
Humanitarian Reasons (i.e. Kosovo)
Nicaragua v. U.S.
Sources of non-intervention
sovereignty → respect for political integrity
Opinio juris → non-intervention backed by established substantial pratice
ICJ → unilateral intervention tool of the powerful that limits international justice
Holding: regardless of fact, unilateral intervention violates IL
Kosovo (Henkin)
Theme: collective yet non-multilateral action appropriate when human rights violated and Security Council politics cause inaction
Henkin’s View: illegal
Not because of human rights
Rather, justification for humanitarian intervention is often ambiguous
Uncertainties of fact and motive
Difficult questions of degree and “balancing” of needs and costs
No individual state can be trusted with authority to judge and determine wisely
Solution: multilateral intervention
Precedent: Iraq and Somalia
Not justified as “humanitarian”
Internal war that threatened international peace and security
Within jurisdiction and responsibility of Security Council
Kosovo
Threatened International Peace without Security Council action
Multilateral intervention without Security Council authorization is still viewed as unilateral
NATO action → “collective” humanitarian intervention “in common interest,” carrying out the responsibility of the world community to address threats to international peace and security resulting from genocide and other crimes against humanity
Effective ratification by Security Council through approval of settlement
Security Council
Strengths: ability to use force “in the common interest”
Weakness: current structure/procedures render Council seriously defective and may be unavailable to protect common interest
New Practice in Kosovo
States/Collectives will act and challenge the Council to terminate the action → permanent member in favor of the intervention could frustrate a termination resolution
Problem: Responsible action often not practical through Security Council
Solution: “gentlemen’s agreement” among permanent members, or by self-restraint and acquiescence
Elshtain
Views
Realists: POWER
Just War Thinkers: recognize good and bad in people
Doing bad usually reaffirming basic good
Cultures innately good but at war with eachother
Differences
Power Calculations/National Interests VS
Mix of power/pathos
Just war
Total War VS
Calculated Just War
Wheeler
RULE: where there is only one case of past practice in support of a new rule, states can easily nullify it by acting against it in future instances
Kosovo-like practices needs repetition to reach opinio juris support
Unilateral Intervention
Still illegal because of ambiguity
Unlikely permanent members of Security Council will become a humanitarian ‘coalition of the willing’ in future cases of gross human rights abuses (Russia/China)
Limited Cases Justified → exceptional cases
Problem: license for powerful to impose their values on the weak
Bowett
Humanitarian Intervention more likely to:
Rescue nationals or permanent residents of the territorial state
Aliens have greater protection
Article 51 → allows self-defense where nationals require protection
Extends to property of nationals
UN Intervention
Blackletter Law
Article 2 → requires peaceful solution of problems
Article 4 → prevents threats etc to any sovereign state
No absolute ban on use of force
Only undisputed legal exceptions to use of force:
Article 51 → allows states self-defense if victim of an armed attack
Chapter 7 → allows security council to authorize force to enforce charter, must be explicit
Franck
Charter Law Pertaining to States’ Autonomous Use of Force
Failed because of following assumptions:
Security Council expected to make speedy and objective decisions as to when collective measures were necessary
States would enter into arrangements necessary to give an effective policing capability
Optimism:
Negotiations
Never took place
Result: system adapted through:
Uncoupled Article 43 from Article 42
Broadened authority of states to act in self-defense under Article 51
Collective Force Without Article 43
Korean War first example
Council authorized unified military command headed by U.S.
“Coalition of the Willing”
No such provision exists in Charter → Council got creative in finding legal use of collective force
The Viability of Article 51
Attempted to fix flaws by authorizing self-defense until Article 43 help arrives
Failed:
Article 43 forces were not forthcoming
Conventional armed attacks envisioned never occurred
Threats:
Subversive Warfare
Weapon Capabilities
Trend for Human Rights overcoming Sovereignty
Self Defense Against Anticipated and Indirect Aggression
Definition: inherent right of self-defense only exercised “if an armed attack occurs against a member state”
Wait until fired upon
Dramatically changed with advent of nuclear weapons and ICBMs
Problem: anticipatory self-defense may be necessary considering weapons capabilities
ICJ – ambiguous
Prohibition of unilateral attack would be nullified if each state free to determine itself whether a perceived danger of attack warrants anticipatory action
Yet, law that seeks to prohibit a state from protecting its very survival until the threat to it has eventuated is irrational and ineffectual
Ultimate Question: in a particular instance, does extreme necessity exist so as to justify a military action?
Humanitarian Intervention Issue
Not all violations of Article 51 are precisely the same
UN approaches on case-by-case basis
Possible Solutions
UN tolerates, ultimately cooperates with, or commends military action by states when action taken to avert a demonstrable catastrophe
Consent/Acquiescence when “good”
Take Away: it is possible to conclude that the use of force by a state or regional or mutual-defense system is likely to be tolerated if:
There is credible evidence that such first-use was justified by:
The severe impact of another state’s indirect aggression; OR
By clear evidence of an impending, planned, and decisive attach by a state; OR
By an egregious and potentially calamitous violation of humanitarian law by a government against its own population or part of it
Stedman
Normative View: UN needs to change by acknowledging
The limitations imposed by civil war
What can be realistically accomplished by outside forces in violent internal conflict
The limitations imposed by its own organizational makeup and procedures
UN Function
Pre-1989 → Peacekeepers, Observed strict neutrality
1989 → started elements of “peacebuilding” in Africa
Getting an Agreement in Civil War
Theme: create favorable alternatives at the negotiating table and lessen the desirability of alternatives away from the table for the antagonists
Methods to overcome disunity:
Define a structure for decision making, with clearly delineated responsibilities and powers
Create a coherent strategy
If the Choice is to pursue a negotiated settlement, then a mediator must be informed by his or her superiors as to what terms are acceptable beforehand
A negotiated settlement demands a workable solution
Identify leverage and link it to the strategic goal
Plan for failure
Negotiations vs. War Crimes
Theme: don’t threaten with war crimes if trying to achieve goal of peace. Only use war crimes where a party reneges on negotiated agreement
War Crimes only make sense when international community judges the war to be total and that the offending party must be defeated
War crimes only appropriate when international community has judged a negotiated settlement with the present leadership as impossible
Falk
Developments accounting for intensity of debate of humanitarian intervention:
Response stimulated by the developments
Statist Response → Commission Reports and Perspectives of Eminent Persons
Con: Precedent for Recourse to war outside scope of self-defense AND w/o UN approval
Pro: Moral/political desirability to act effectively in face of Humanitarian emergency
Independent Commission on Kosovo (Sweden) → Kosovo War legitimate although illegal
Options:
Leave decision to intervene with Coalition of the Willing
Prematurely abandons Charter
Suspend Security Council Veto
Not politically accepted currently (ideological/humanitarian/sovereignty differences
Critical Argument: regardless of legitimacy, international response won’t occur unless political will
Strategic motive makes more likely an effective intervention (incentives)
Canadian Commission on Intervention and State Sovereignty
Circumvent fears of colonialism by replacing “responsibility” language with “rights”
Shortcomings: does not account for geopolitical dominance
Doubters: Civil Society Perspectives
“Collective Daydream” = post-colonial imperialism
Falk → proceed forward with both perspectives in mind
Teson –
3 Types of Collective Humanitarian Intervention
Soft – discussion, examination, and recommendation of action
Reasons:
International Effects Test
Human Rights Violations
Hard – Coercive w/o force (mostly Economics)
Forcible and Use of Force
“Prohibited Intervention” → action aimed at influencing government over issue target state has legal discretion
Human Rights: No longer within domestic sphere → use soft intervention
Form of Government
International Law → origin of government not of outsider’s concern
Problems:
International Framework requires International Community to recognize nation state when government REPRESENTS state
Democracy is the only way of showing People’s REPRESENTATION
Democratic rule REQUIRED for enjoying human rights
Democracies are inherently more peaceful (Kant)
Build in mechanisms to avoid war
Collective Humanitarian Intervention
Anti-interventionalists – armed intervention strictly prohibited
Only permissible with Security Council action
Teson’s Argument – war as last resort for extreme circumstances
Mwagiru: Cold War Paradigm Shift → “New gloss on old design”
Argument: Old UN constructs state-centered and therefore outdated, need to increase UN’s ability to negotiate, not act forcibly
Somalia: Operation “Restore Hope” not humanitarian intervention since relied on UN
Security Council characterized Somalia as a threat to International Peace and Security
Argument: This classification shows the outdatedness of the UN Charter; Change UN to more effectively address modern problems (non-state entities)
Negotiation is UN’s best resource
Orford
Robertson → 3rd Age of Human Rights = Enforcement as a rule of law
NGO support of Humanitarian Intervention i.e. East Timor
Tony Blair → principle of mutual self-interest and moral purpose define foreign policy decisions
IL Features of Interest
“Revolutionary” classification of claim that a right or duty of humanitarian intervention
International effects of humanitarian intervention
Fear of colonialism → uncivilized people unable to govern themselves
Falk → rejects legitimacy of collective humanitarian intervention but admits to a fear that advocating non-intervention may equal advocating inaction
Argument: strike a balance yet ensure “humanitarian intervention” = more than state-based capitalist and militarist world order
Criticism: IL/News only responds to CRISIS
Arguments:
For Unilateral Intervention (Henkin): System does not work, UNSC dysfunctional, Politics, morally justified, collectively good
Need to make sure people are protected
Against Unilateral Intervention (Wheeler, Elshtain): who defines “humanitarian” (ambiguous), balancing of interests and rights, means (protecting soldier’s lives not civilians), sustainability, undermines IL system
Need restraint for unlawful unilateral use of force
Professor B: we look at this dilemma only in moments of crisis
Need to take a longer view for judging use of intervention in armed conflict
Dangers: grim colonial history, International System still fails to protect people
Language
Moore – “intervention” used in at least 4 different senses
Synonym for transnational interaction or influence
Statement that a particular transnational interaction violates community expectations about permissible international conduct
Personal policy judgment that a particular transnational interaction is wrong, and
Specialized sense as a definition of a problem for study
McDougal: intervention “refers with indiscriminate abandon to the facts to which decision-makers are responding, to the policies invoked before decision-makers, and to the particular responses of decision-makers which are sought to be predicated or justified
Multilateralism
Problem: smokescreen for unilateral intervention?
Creates difficulty for U.S. foreign policy goals
Intervention as Helping Self-Determination
Ronzitti – armed struggles by indigenous peoples against colonial rule, racist regimes, and governments which, even if not colonial or racist, are nonetheless unrepresentative or subordinating of certain clearly identifiable national constituencies
Reisman – “human dignity” test
Charney – Three conditions for self-determination outside colonial context
Bona fide exhaustion of peaceful methods of resolving the dispute between the government and the minority group claiming an unjust denial of self-determination
Evidence that the persons asserting the self-determination claim represent the will of the majority of the group
And a resort to force taken only as a means of last resort
Unilateral Humanitarian Intervention
Bronlie – a rule allowing unilateral humanitarian intervention is a general license to vigilantes and opportunists to resort to hegemonical intervention
Henkin – a humanitarian reason for military intervention is easy to fabricate. Every case of intervention has been justified on some kind of humanitarian ground
Cold War
U.S. exclusively preoccupied with helping anti-left political forces regardless of their credentials as democrats and refused to challenge rightist modes of oppression, however severe
Intervention for Democracy
Teson – valid basis for intervention
Collective Humanitarian Intervention
Falk, Mwagiru, Orford → skeptical about the legitimacy and moral objectives of collective humanitarian intervention
Teson → intervene to uphold basic human rights
Mwagiru → use negotiation to combat failures of UN
Mercenaries
UN framework did not account for guns for hire
Problem: accountability
Definition:
recruited locally or abroad to fight in conflict
desire to fight motivated by material gain(more than state’s armed forces)
Not citizen of state attacking
Violates UN Charter → do not receive combatant status under Geneva Convention
U.S. Jurisdiction
Pro: taking accountability
Con: actions take place in combat, Iraqis (not Americans) suffer the related harm
IRAQ
Sovereignty vs. Suffering
Evolving Definition of Sovereignty
Claim to Territory
International Action
Power vis-à-vis its citizens
Represents “will of the people”
Evolution: progressive concept that becomes misused
Exclusivity of Monarch to Narrowing of Soveriengty
Views:
Holocaust
Decolonization → factors transcending borders
Limiting → helps advocate Human Rights
Bathist Party Use of Sovereignty → sovereignty prevents intervention based on Human Rights violations
US Sanctions severely limiting Iraqi sovereignty
Limited ability to provide basic needs
No responsbilitiy to provide basic needs
KEY QUESTION: Human Rights Violations OR No Basic Needs Met?
Do the Human Rights violations warrant the sanctions/force used to limit Iraq’s sovereignty?
Central Paradox = Rhetorical Convergence → invasion of Kuwait caused limit on sovereignty, yet large amount of justification based on Human Rights violations
Taft/Buckwold → 2003 invasion extension of first gulf war
Resolution 678 extended by Resolution 1441
Did not require Security Council recognition of violation of Cease Fire Agreement
Same reasoning legally for periodic strikes (i.e. Desert Fox)
Criticism: Limits UN’s purpose overall
Franck → Critical of Taft
No imminence
Kuwait was purpose of Use of Force resolutions
De minimus arguments are fact specific to Iraqi occupation of Kuwait
Relates back to problem of Rhetorical Convergence
Who decides UN violations?
Resolution 1441 creates security council recognition of violation, not unilateral
Criticism: Resolution needed to recognize breach, subject to veto regardless of objective factual breach
Role of Lawyer: don’t take sides, work on legal framework to design rules needed to move forward
General assessment of Legality
War was illegal, not within 2 exceptions to use of force
