Posts Tagged ‘customary international law’

Russian economic pressures and actions to force Ukraine not to ratify EU treaty violate international law principle of non-intervention (Updated November 27, 2013)

Tuesday, November 26th, 2013

UPDATE

See

“Gescheitertes Abkommen: Merkel hält Ukraine die Tür für EU-Abkommen weiter offen, Der Spiegel, 27 November 2013.

Bundeskanzlerin Angela Merkel hat die Ukraine weiterhin zur Zusammenarbeit eingeladen. Präsident Janukowitsch hatte einem EU-Abkommen zuvor eine Absage erteilt. Mahnende Worte richtete die Kanzlerin aber an Russland: Von dort dürfe kein Druck auf die ehemaligen Sowjetrepubliken ausgeübt werden.

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It has been widely reported that Russia has threatened the Ukraine with and/or already undertaken severe economic measures, including curtailment of trade, to presure the Ukraine not to go ahead and sign a proposed trade treaty with the European Union which until recently the Ukraine was expected to sign at a conference in Vilnius, Lithuania later this week.

See David M. Herszenhorn, “Ukraine in Turmoil After Leaders Reject Major E.U. Deal,” New York Times, November 26, 2013. Herszenhorn reports:

At stake here is not just the fate of a free-trade pact but whether the hardball tactics of Russia, willing to use every bit of economic muscle — including trade threats and its stranglehold on energy supplies — to exert blunt force in negotiations, will prevail over the national aspirations of millions of people.

The effort to draw in Ukraine and other ex-Soviet republics is also crucial to Europe, which has invested heavily in it and can ill afford a humiliating defeat at a time when its stature is already being called into doubt by the continuing economic strains within the euro zone.

Calls for Europe to answer the Kremlin’s threats of retaliatory sanctions against Ukraine with sanctions against Russia are raising the prospect of a bitter trade war that could complicate numerous efforts by Western powers to cooperate with Russia on security matters.

These threats, and indeed actions that have already been taken, appear to constitute intervention in the internal affairs of the Ukraine in violation of the principle of non-intervention now established in customary international law.

(1) U.N. General Assembly Resolution 2625 (XXV) of 24 October 1970, (A/RES/25/2625) containing the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, provides as follows:

The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.,,,

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Nothing in the foregoing paragraphs shall be construed as reflecting the relevant provisions of the Charter relating to the maintenance of international peace and security.

(2) In addition, the U.N. General Assembly “Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States,” Resolution A/RES/36/103), adopted on December 9, 1981, specifically provides:

1. No State or group of States has the right to
intervene or interfere in any form or for any reason whatsoever
in the internal and external affairs of other States.

2. The principle of non-intervention and
non-interference in the internal and external affairs of States
comprehends the following rights and duties:

II

(k) The duty of a State, in the conduct of its
international relations in the economic, social, technical and
trade fields, to refrain from measures which would constitute
interference or intervention in the internal or external
affairs of another State, thus preventing it from determining
freely its political, economic and social development; this
includes, inter alia, the duty of a State not to use its
external economic assistance programme or adopt any
multilateral or unilateral economic reprisal or blockade
and to
prevent the use of transnational and multinational corporations
under its jurisdiction and control as instruments of political
pressure or coercion against another State, in violation of the
Charter of the United Nations;

Analysis

While the exact limits of the principle of non-intervention in the internal and external affairs of another state are not completely defined, in the present case where Russia has threatened or already implemented economic measures which whould have a crippling effect on the Ukrainian economy if the country signs the pact with the European Union, Russia’s threats and actions would appear to be well over the line and to constitute a clear case of intervention in the internal or external affairs of the Ukraine in violation of customary international law.

The Trenchant Observer

Note: U.N. General Assembly Resolution 2625 (XXV) of 24 October 1970, (A/RES/25/2625) is also of direct relevance to China’s recent claimed establishment of an aire defense zone in the area of the islands known as Senkaku in Japan and Diaoyu in China, in the East China Sea, as well as any military pressure it may exert in the future regarding territorial claims. Resolution 2625 specifically provides:

The General Assembly
1.Solemnly proclaims the following principles:

The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations

Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. (emphasis added)

President Morsi and Muslim Brotherhood express condolences for American losses in Benghazi, offer reassurances concerning defense of U.S. embassy in Cairo; Vienna Conventions require effective defense in all cases

Friday, September 14th, 2012

In response to what was reported as a less than robust defense of the U.S. embassay in Cairo by Egyptian security forces on Wednesday, September 12, President Obama called President Mohamed Morsi and demanded effective defense of the embassy and clear statements and efforts  aimed at defusing the situation.

See

David D. Kirkpatrick, Helene Cooper and Mark Landler, “Egypt, Hearing From Obama, Moves to Heal Rift From Protests,”

Catherine Poe, “An angry President Obama warns Morsi and Egypt to protect American Embassy or else,” The Washington Times, September 14, 2012.

Morsi and the Egyptian government, headed by the Muslim Brotherhood, got the message. In a letter to the editor of the New York Times, dated September 13, Khairat El-Shater, the Deputy President of the Muslim Brotherhood, wrote the following:

To the Editor:

Today’s world is a global village; nations are closer than ever before. In such a world, respect for values and figures — religious or otherwise — that nations hold dear is a necessary requirement to build sustainable, mutually beneficial relationships.

Despite our resentment of the continued appearance of productions like the anti-Muslim film that led to the current violence, we do not hold the American government or its citizens responsible for acts of the few that abuse the laws protecting freedom of expression.

In a new democratic Egypt, Egyptians earned the right to voice their anger over such issues, and they expect their government to uphold and protect their right to do so. However, they should do so peacefully and within the bounds of the law.

The breach of the United States Embassy premises by Egyptian protesters is illegal under international law. The failure of the protecting police force has to be investigated.

We are relieved that no embassy staff in Cairo were harmed. Egypt is going through a state of revolutionary fluidity, and public anger needs to be dealt with responsibly and with caution. Our condolences to the American people for the loss of their ambassador and three members of the embassy staff in Libya.

We hope that the relationships that both Americans and Egyptians worked to build in the past couple of months can sustain the turbulence of this week’s events. Our nations have much to learn from each other as we embark on building the new Egypt.

KHAIRAT EL-SHATER
Deputy President, Muslim Brotherhood
Cairo, Sept. 13, 2012

–‘Our Condolences,’ the Muslim Brotherhood Says, Letter to the Editor, New York Times, September 13, 2012.

It may be that Morsi feels he has to consult with other Muslim Brotherhood leaders on critically important issues. That does not justify bad decisions. Still, his reassurances through various channels, though tardy, are welcome.

There can be no excuse for the failure of Egyptian security forces to effectively defend the U.S. embassy in Cairo on Wednesday, September 12. Egypt, and virtually all other countries are obligated to defend and protect foreign diplomatic and consular missions under customary international law and under the specific terms of the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.

Article 22 of the Vienna Concention on Diplomatic Relations provides, for example,

Article 22

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity (emphasis added).
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Article 31 of the Vienna Convention on Consular Relations contains similar language.

There are no reasons whatsoever that would justify the host country (or “the receiving state”, in the language of the treaties) to fail to comply fully with these provisions.

The Trenchant Observer

REPRISE: Goals to guide the international community in Syria—Obama’s Debacle in Syria — Update #62 (July 11)

Wednesday, July 11th, 2012

Originally published May 29, 2012

With talk of orchestrating a Yemen-style transition in Syria through agreement between Russia and the United States, it may be useful to address the question of what the legitimate goals of the international community in Syria should be.

To start the discussion, the following goals are suggested:

1. Immediately halt the commission of war crimes and crimes against humanity;

2. Ensure that any transitional regime fully respects the international “responsibility to protect” as set forth in U.N. Security Council Resolution 1674 (2006).

3. Establish an interim government committed to immediately respecting the fundamental human rights of the citizens of Syria, of all sects including Alawites, Christians and other minorities.

These fundamental human rights are set forth in the U.N. Declaration on Human Rights, and further articulated in the U.N. Covenant on Civil and Political Rights, the U.N Convention Against Torture, and other international human rights treaties.

(The Security Council, through adoption of a mandatory resolution under Chapter VII of the U.N. Charter, could provide that even those of these norms that have not become customary international law will be binding on Syria.)

4. Within this context of the interim government’s guarantee of respect for fundamental human rights, provide for the organization of political parties, the election of a constituent assembly to draft a constitution, and the subsequent holding of elections to a National Assembly followed by presidential elections to select a new, legitimate government to replace the interim transitional government.

5. Establish a Truth and Reconciliation process through which those responsible for war crimes and crimes against humanity will be held morally, and potentially legally, responsible for the crimes they have committed. This process could involve creation of a National Truth and Reconciliation Commission, with optional referral to domestic judicial authorities or to the International Criminal Court, depending on the whether the individual concerned cooperated fully with the Commission and acknowledged the crimes he or she may have committed. (The South African and Argentine models might be taken into account in designing the appropriate truth and reconciliation process.)

6. Establish a United Nations Authority in Syria with a mandate to assist Syria in developing mechanisms designed to ensure observance of “the responsibility to protect”, and with residual powers to ensure compliance with the goals set forth in paragraphs 1-5 above.

7. Establish a United Nations Peacekeeping Force in Syria for an interim period of 1-2 years to ensure the safety and security of all citizens of Syria, incuding in particular the members of all ethnic and religious groups in Syria.

Any discussion of a possible Yemen-style “solution” to the situation in Syria should be measured against the 21st century goals set forth above.

The outcome of the actual negotiated, transitional “solution” in Yemen is far from evident, with al-Qaeda operating through large portions of the country’s territory and a revival of earlier civil wars between diferent regions of the country remaining a realistic threat.

Moreover, Syria obviously represents an entirely different political and social reality than Yemen, with a recent history of barbarism on a wholly different order of magnitude than anything done by the Saleh regime in Yemen.

The goals of the international community do not include maintenance of Russian control of the port of Tartus, just as they do not include agreement with the U.S. that it can conduct drone strikes on targets in Syria. These issues can only be decided by the interim government and then the elected government of Syria.

Instead of giving al-Assad more time to commit atrocities against his opponents as diplomatic negotiations continue, and to help focus his mind and those of his inner circle on what is to come, it will be essential to develop and if necessary undertake vigorous military actions to halt the crimes referred to in paragraphs 1-3 of the list of suggested goals above.

These options should be developed–and if necessary exercised–even in the absence of Security Council authorization. Russia must not be allowed to use negotiations as a cover for supporting al-Assad’s continued commission of war crimes and crimes against humanity.

It is time for the international community to act on an urgent basis to halt the atrocities in Syria, and to commence the transitional process that will lead to a future government based on respect for fundamental human rights, implementation of the “responsibility to protect”, and the establishment of a process that will lead to a government that reflects the aspirations and desires of the Syrian people.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here.

Goals to guide the international community in Syria—Obama’s Debacle in Syria — Update #47 (May 29)

Tuesday, May 29th, 2012

With talk of orchestrating a Yemen-style transition in Syria through agreement between Russia and the United States, it may be useful to address the question of what the legitimate goals of the international community in Syria should be.

To start the discussion, the following goals are suggested:

1. Immediately halt the commission of war crimes and crimes against humanity;

2. Ensure that any transitional regime fully respects the international “responsibility to protect” as set forth in U.N. Security Council Resolution 1674 (2006).

3. Establish an interim government committed to immediately respecting the fundamental human rights of the citizens of Syria, of all sects including Alawites, Christians and other minorities.

These fundamental human rights are set forth in the U.N. Declaration on Human Rights, and further articulated in the U.N. Covenant on Civil and Political Rights, the U.N Convention Against Torture, and other international human rights treaties.

(The Security Council, through adoption of a mandatory resolution under Chapter VII of the U.N. Charter, could provide that even those of these norms that have not become customary international law will be binding on Syria.)

4. Within this context of the interim government’s guarantee of respect for fundamental human rights, provide for the organization of political parties, the election of a constituent assembly to draft a constitution, and the subsequent holding of elections to a National Assembly followed by presidential elections to select a new, legitimate government to replace the interim transitional government.

5. Establish a Truth and Reconciliation process through which those responsible for war crimes and crimes against humanity will be held morally, and potentially legally, responsible for the crimes they have committed. This process could involve creation of a National Truth and Reconciliation Commission,  with optional referral to domestic judicial authorities or to the International Criminal Court, depending on the whether the individual concerned cooperated fully with the Commission and acknowledged the crimes he or she may have committed. (The South African and Argentine models might be taken into account in designing the appropriate truth and reconciliation process.)

6. Establish a United Nations Authority in Syria with a mandate to assist Syria in developing mechanisms designed to ensure observance of “the responsibility to protect”, and with residual powers to ensure compliance with the goals set forth in paragraphs 1-5 above.

7. Establish a United Nations Peacekeeping Force in Syria for an interim period of 1-2 years to ensure the safety and security of all citizens of Syria, incuding in particular the members of all ethnic and religious groups in Syria.

Any discussion of a possible Yemen-style “solution” to the situation in Syria should be measured against the 21st century goals set forth above.

The outcome of the actual negotiated, transitional “solution” in Yemen is far from evident, with al-Qaeda operating through large portions of the country’s territory and a revival of earlier civil wars between diferent regions of the country remaining a realistic threat.

Moreover, Syria obviously represents an entirely different political and social reality than Yemen, with a recent history of barbarism on a wholly different order of magnitude than anything done by the Saleh regime in Yemen.

The goals of the international community do not include maintenance of Russian control of the port of Tartus, just as they do not include agreement with the U.S. that it can conduct drone strikes on targets in Syria. These issues can only be decided by the interim government and then the elected government of Syria.

Instead of giving al-Assad more time to commit atrocities against his opponents as diplomatic negotiations continue, and to help focus his mind and those of his inner circle on what is to come, it will be essential to develop and if necessary undertake vigorous military actions to halt the crimes referred to in paragraphs 1-3 of the list of suggested goals above.

These options should be developed–and if necessary exercised–even in the absence of Security Council authorization. Russia must not be allowed to use negotiations as a cover for supporting al-Assad’s continued commission of war crimes and crimes against humanity.

It is time for the international community to act on an urgent basis to halt the atrocities in Syria, and to commence the transitional process that will lead to a future government based on respect for fundamental human rights, implementation of the “responsibility to protect”, and the establishment of a process that will lead to a government that reflects the aspirations and desires of the Syrian people.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here.

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World

Sunday, July 17th, 2011

Recently a number of articles have been published that are of particular interest with respect to the development and use of drones.

See

William Wan and Peter Finn, “Global race on to match U.S. drone capabilities, Washington Post, July 4, 2011

Elisabeth Bumiller and Thom Shanker, “War Evolves With Drones, Some Tiny as Bugs,” New York Times, June 19, 2011

Peter Beaumont, “Campaigners seek arrest of former CIA legal chief over Pakistan drone attacks: UK human rights lawyer leads bid to have John Rizzo arrested over claims he approved attacks that killed hundreds of people,” The Guardian, July 15.2010

Michael Tennant, “U.S. Begins Drone Strikes in Somalia,” The New American, July 14, 2011

In previous articles, The Trenchant Observer has pointed to some of the troubling issues in international law raised by the use of unpiloted aircraft or drones in situations removed from the active battlefield in an on-going armed conflict.

Now, with other countries driving to develop comparable military capabilities in the form of drones, some as tiny as bugs, the short-sightedness of U.S. military policy regarding drones has come fully into view.

Moreover, as far as is publicly known, the United States has done nothing to develop in cooperation with other countries new international legal regimes and norms that might help to control what appears to be a headlong rush toward real anarchy among the nations of the world.

President Barack Obama rarely, if ever, speaks of international law. In his Nobel Prize acceptance speech, he spoke not of international law and legal norms, but rather of international “rules” or “norms”. The words “international law” are absent from his discourse.

One consequence has been an approach to international law that can be summed up as “If I can get away with it I can do it,” a formulation that goes back to Justice Oliver Wendell Holmes Jr.’s famous dictum about “the bad man theory of law”.

The system of international law is different from the domestic system in which a “bad man” might focus on the law only in terms of what he might be able to get away with. For the nations that are subject to international law are themselves the creators of the norms of international law. They are at once the legislature, the sheriff and the potential offender. This creates a dual responsibility on the part of nation states and their lawyers: They must not simply interpret international legal norms in a permissive way that allows them to do what they want, but also act to safeguard and strengthen the system of international law, and the way international legal norms wiil be interpreted by other countries. This is sometimes referred to by international lawyers as the “double-function” (or “dédoublement fonctionnel”) of international lawyers and states: in choosing a course of action they must not only seek to pursue their own short-term objectives, but also the critically-important longer-term objectives of building a viable international legal order that will contribute to their own security.

It is precisely in this area, of the obligation to build future international norms and regimes, while not weakening those that exist, that the United States has utterly failed with respect to drones. In past eras, legal regimes to prevent the use of space for military purposes, or the seabed, were developed in order to shape the future environment in which force might be employed. This the Obama administration has failed to do with respect to drones, both as a result of a very short-sighted pursuit of immediate military advantages through their use, and as a result of the fact that President Obama does not seem to understand very deeply the function of international law in safeguarding the nation’s security.

To facilitate reflection on these issues and the legality under international law of the use of drones, a review of the following articles previously published here might be useful.

See

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes, August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council, June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications, February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

As Thomas M. Frank (1931-2009), a distinguished international lawyer and professor of international law at New York University, and Edward Weisband once observed, we should be careful whether to observe and how to interpret international law, because “the law you make may be your own.”

See Thomas M. Franck and Edward Weisband, “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own,” Stanford Law Review, Vol. 22, pp. 979-1014 (1970).

The Trenchant Observer

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