Is the Nature of the International Legal System Changing?—A Response

in Austrian Review of International and European Law Online
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Is the Nature of the International Legal System Changing?—A Response

in Austrian Review of International and European Law Online


I See B. Simma, "From Bilateralism to Community Interest", 250 Recueil des Cours 256-284 (1994) for a discussion of the UN Charter as the "constitution" of the international community. He concludes however "the competencies exercised by the principal organs of the UN cannot simply be assessed according to the model of national constitutions. However one does find at least some elements of a separation of powers. The lack of any effective judicial review does not distinguish the Charter from most domestic constitutions". Ibid, at 283. For a comprehensive review of the idea, B. Fassbender, "The United Nations Charter as Constitution of the International Community', 36 Col. J.T. Law 529-619 (1998).

2 According to Oppenheim's International Law, R. Jennings/A. Watts (eds.), Vol.1, at 13 (1991): "Furthermore international law may now properly be regarded as a complete system. It is thus not permissible for an international tribunal to pronounce a non liquet, i.e., to invoke the absence of clear legal rules applicable to dispute as reason for declining to give judgement (unless the compromis submitting the dispute somehow limits the power of the tribunal to apply international law as a whole." 3 For a treatment of different aspects of International Law, I. Brownlie, Principles of Public International Law (1999), M. N. Shaw, International Law (2003). 4 C. Tomuschat, "Obligations Arising for States without or Against their Will", 241 Recueil des Cours 195 (1993). See also J. A. Perkins, "The Changing Foundations of International Law: From State Consent to State Responsibility", 15 BostonU. Intl. L.J. 433-509 (1997). 5 Simma dwells upon this point and notes, very objectively, "The rise and recognition of community interests is one thing, their impact on the real world quite another. There simply did not arise any tangible, 'operational' as it were, sense of community which reacted force- fully enough to the genocide in Bosnia or Rwanda, or the gang wars in Somalia or Liberia" And he added that, "As a consequence, the observer is frequently torn between feelings of satisfaction because international law is finally being invested with some of the social accountability long developed in domestic law, and fears that the still primitive, still essentially bilateralist infrastructure upon which the new, more progressive edifices rest will turn out to be too weak to come to terms with the implications of such community interest." In his view, which this author shares, 'However, in the last instance, of course, what will be decisive is not the use of the term "international community' as such, as a mere combination of words, but rather concrete institutions, principles and rules through which commitment to the interests common to human kind can be activated." See Simma, supra note 1, at 247-249. For an interesting discussion of the concept of international community in general, E. Kwakwa, "The International community, international Law, and the US: three in one, two against one

or one and the same?" (for the view that the concept of international community is a real and cognizable one in which not only States but even the non-State actors have a significant role) and A Paulus, "The influence of the US on the concept of the 'international community" (for the view that the US accepts the concept of international community but resolutely opposes any institutionalization of that concept to the detriment of its own individualism and the freedom to engage in unilateral actions). On the ever increasing interdependencies in general, see M. Byers/G. Nolte (eds.), United States Hegemony and the Foundations of International Law 25-114 (2003). 6 The concept of 'common but differentiated responsibilities', enunciated by Principle 7 of the Rio Declaration on Environment and Development addressed this problem in the context of environment and development. For an analysis of this principle using sources from other areas and for making the point that the distinction is often made between the capacities and the needs of developing countries See P. Sands, Principles of Environmental Law 288 (2003). 7 The point is not whether such an ideal model could be realistically achieved in the near future, but to note some of the necessary elements of any scheme designed to establish effective international institutions to discharge the functions associated with a truly integrated international community. 8 That such a system is possible has been established by the WTO dispute settlement procedures. It could be a model of sort for other areas of international law including security see for an exposition in this regard, J. Bacchus, "Grouping Towards Grotius; The WTO and the International Rule of Law" 44 Harv. Int'l. L. J 533-550 (2003).

9 It is feared however that any expansion of the Security Council and either enlarging the veto powers or removing them altogether may actually frustrate the working of the Security Council rather than make it more functional in the interest of the international community, see D. Bills, "International Human rights and Humanitarian Intervention: The Ramifications of Reform on the UN' Security Council' 31 Texas Int'l. L. J 107, at 123, 126, 127 (1996). These fears may come true as long as States, particularly the major powers put their national political interests of the time ahead of their responsibilities as members of the organized international community when they participate in the decision-making within the Security Council. 10 Lack of such military contingents under the UN command, as originally envisaged under Arts. 43-47of the UN Charter is one of the main reasons for the failure of the collective security system of the UN so far. On this aspect see R. B. Russell, The United Nations and the United States Security Policy 47-60 and 119-121 (1968). One idea is to promote international police force as opposed to or in addition to an international military force, building upon the use of such police forces to execute warrants, to arrest and to maintain law and order in situations of severe internal conflicts associated with a failed State see H. Perritt, Jr., "Policing International Peace and Security. International Police Forces", 17 Wisconsin Intl'l. LJ. 281, at 323-324 (1999). 1 ' For the view that for all its defects, State centric world order as it has been functioning since the days of Westphalia peace, established in 1648, more than 350 years ago, is still more an agreeable system than the one often romanticized by conceptions of jus cogens, or erga omnes obligations, see P. Weil, "Towards Relative Normativity in International Law?" 77 AJIL, 413-442 (1983). '2 For all its merits the conclusion of the Rome Statute on International Criminal Court could be an example of hastily concluded international Convention. On vague and too indeterminate obligations and their lack of normative value, see Weil, supra note 11, at 417-418.

13 on the question of double standards and the need for the political organs to act within the limits of powers designated for their decisions to be treated as valid in law, see I. Brownlie, 'International Law at the Fiftieth Anniversary of the United Nations,' 255 Recueil des Cours 255, 211-227 (1995). '4 On developing countries and international law, see R. Falk, "The New States and International Legal Order", 118 Recueil des Cours 1 (1966 II). 15 see J. Charney, 'The Persistent Objector and the Development of International Law", 56 BYIL 1 (1985). '6 See the separate opinion, Judge Schwebel, in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons in Armed Conflict 1996 ICJ Reports, at 226. He argued that the State practice concerning deterrence is not only that of a "lone and secondary persistent objector", but a practice of the Permanent Members of the Security Council,' supported by "a large and weighty number of other States—that together represent the bulk of the world's military and economic and financial

and technological power and a very large proportion of its population". Hence, he believed that the manufacture and the deployment of nuclear weapons for over 50 years should be regarded as lawful. Ibid., at 312. Judge Shi, did not share this view and noted that the policy of nuclear deterrence is a political doctrine. According to him, the principle of sovereign equality of States, enshrined in the UN Charter, demanded that no undue importance be given to the practice of a few States in projecting a "proper view of the existence of a customary rule on the use of the weapon" however materially powerful they might be, which only constitute a fraction of a membership of the community of States in the evaluation of customary law. Ibid., at 278. See for review, P. S. Rao, "Advisory Opinion of the International Court of Justice on Legality of the Threat and or Use of Nuclear Weapons: An Assessment from Indian Perspective", 37 Indian J. Intl'l. Law 219, at 224-225 (1997). Ambassador Kamalesh Sharma of India makes a point similar to Judge Shi, before the Security Council in the debate on the legitimacy of NATO's action in Kosovo. See the view quoted by A. Paulus, in Byers/Nolte, supra note 5, at 59. " Schachter examined disputed unilateral use of force by different countries in such cases as Afghanistan, Angola, Cambodia, Chad, Falkland Islands, Grenada, Iran-Iraq, Lebanon,

Mozambique, Nicaragua, and Vietnam. See O. Schachter, 'In defense of International Rules on the Use of Force", 53 U. Chicago Law Review, 113-146 (1986). See also T. Franck, Recourse to Force (2002), for analysis of incidents of use of force from the early 50s to the more recent ones including the NATO action in Kosovo.

18 For a very thorough analysis and rejection of the various justifications offered in defense of highly controversial cases of uses of force, see Schachter, supra note 17, at 125-131. For a recent and very stimulating critique of such positions, see M. G. Kohen, "The Use of Force by the United States after the End of Cold War, and its Impact on International Law", in Byers/Nolte, supra note 5, at 197-231.

' 9 See the United States Diplomatic and Consular Staff in Tehran (US v. Iran), Merits, Judgment of 24 May 1980, 1980 ICJ Rep. 19, at para. 36.

2° Kohen summed up the US practice well in such matters when he said that it reduced itself to an advice from the US to the rest of the world to the effect "do what I say but not what I do" Kohen, supra note 18, at 229.

21 it is widely accepted that right of self-defence, which Art. 51 of the UN Charter refers to as the inherent right of States is available to States under some clearly applicable conditions and limitations. Some of these are: the presence of an imminent or an overwhelming armed attack, the criteria of necessity or proportionality, first noted by Daniel Webster, Secretary of State of the US in the Caroline incident of 1837, and the need to respect principles of humanitarian law are also important. Despite these limitations, justification for the unilateral use of force as a form of legitimate, if not entirely lawful self-defense is offered on grounds of anticipatory self-defense or on humanitarian grounds. While admitting that interpretation and application of the strict requirements of self-defence in international law is not always easy or found possible, both Schachter and Brownlie argued that the validity of those requirements could not be denied. In their view self-serving justifications which did not have sanction from the UN or the international community in general should be rejected as pleas for exceptions which would make the original rule totally meaningless. See O. Schachter, International Law in Theory and Practice 126 (199 1). For observations of Brownlie, supra note 13, at 203, 207, 209-210. Brownlie relies upon the ICJ and the ILC for his view that self-defense is an exception to the general principle of prohibition of the use of force, and is strictly available against armed or violent attacks and in cases in which the 'agencies of the central authority' which have monopoly or virtual monopoly of the use of force, 'cannot be resorted to promptly and efficiently enough to protect a subject in question'. See also B. Roth, "Bending the Law, Breaking it, or Developing it? The United States and the Humanitarian Use of Force in the Post-Cold War Era", in Byers/Nolte, supra note 5, at 232- 263.


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