That verbose post is your personal take on the UN Charter, going over where you think it is "reasonable" and where you think it is not.
This reasonable. Whenever anyone analyzes something it is their "personal take." What else could it be?
Meanwhile you reach some strange conclusions like "So the UN declared itself the world's policeman" and conclude that "The UN will die - deservedly...".
Hey. those were argued conclusions derived from a reading of a text you cited as a buttress for your assertions. A text which provides the framework for what the UN can and can't do.
You may think they are "strange conclusions" but that doesn't impeach their validity, does it? You have to deal with my arguments if you want to show them invalid. Declaring them such because they're my "personal take" isn't even hand waving.
Excuse me if I could not bring myself to reply to all that.
Nope.
I probably have to be the one to tell you that you are in no position to judge the UN Charter . You are not a lawyer. You are not a scholar of international affairs. Your take on the UN Charter is a layman's understanding of a multinational agreement.
Oh dear, I wish you hadn't said that. When I was at university my profs, especially the ones with big reps, always enjoined us to read the original texts before straying too far afield in commentary. (They were wise and self protective in this - they didn't want to produce ignoramuses, but I digress).
You have done a terrible deed. You have appealed to authority in answer to an argument. Worse, you haven't cited the authority.
Now I'm going to do a worse thing. I'm going to cite an authority. In fact I'm going to quote an authority in the entirety of his analysis. And we shall plunge into jargon. Be sure you are clear on 'opposability'.
Remember that lawyers may be experts but they have to read the same texts and look at the same material world as we do.
216.239.33.100
The Relationship between the United Nations Charter and General International Law regarding Non-Use of Force: The Case of NATO?s Air Campaign in the Kosovo Crisis of 1999
Shinya Murase
Sophia University Faculty of Law, Tokyo
s-murase@db3.so-net.ne.jp
It is my great pleasure and privilege to speak to you this afternoon on the legal questions involved in NATO?s actions last year. Having heard the comprehensive and scholarly discourse by Professor Thomas Franck for the past three days, I feel a bit awkward to address the same issue. However, I have the benefit that I can start my talk from where he left off. I chose this topic not so much to either justify or condemn NATO?s actions, but rather because I thought that this case offers a good example of unilateral measures whose legal effects are characterized in terms of opposability rather than legality. Unilateral measures are prevalent in various fields of our international life today such as trade, the environment, human rights and security. However ?pathological? the phenomena may be, I believe that it should be considered within the framework of general international law.
Nonetheless, by taking up the case of NATO?s actions for our discussion this afternoon, I must admit that I am a bit dissatisfied with some distinguished international lawyers in America and Europe who maintain that NATO?s actions were ?illegal, but justified?, or ?unlawful, but necessary?. I agree that this position is a more responsible one than simply saying that the actions were illegal without demonstrating effective alternative solutions for the then on-going atrocities. I believe, however, that the necessity and justification for the measures taken by NATO should be given in legal terms and not simply in terms of extra-legal or moral grounds if one is faced with the question as a professional international lawyer.
I understand, and strongly support, the position that legal evaluations should be distinguished from appraisals of political processes; mixing law with politics would be dangerous business, even a professionally fatal mistake, for any international lawyer. However, I also believe that it is very important for us to have a methodological framework which facilitates the proper legal analysis of political realities in international relations. If one delimits the role of international law to the narrowly defined province of ?legality?, I am afraid that the result is the marginalization of the function of international law as a tool to regulate the conduct of States. Frankly, I feel that such an attitude would be irresponsible for those involved professionally in international law, and I believe that we should try to establish a certain normative relevance to the actual relations of States. It is from this perspective that I propose to incorporate the concept of opposability into the usual criteria for the determination of legality or illegality in our debate on NATO this afternoon.
I share the view held by many that NATO?s air strikes were in violation of UN Charter provisions, particularly its Article 2(4). We all know that there has been debate regarding the interpretation of Article 2(4) over whether the use of all force is prohibited or whether certain exceptions are permitted. In particular, regarding humanitarian intervention, some people take the position that it is illegal, while others feel that it may be permissible depending on the purpose, form and scale of the action. Some of those who try to justify the NATO actions also rely on a theory of the Security Council?s ?implied authorization?. However, as long as we consider the UN Charter our applicable law, no matter how broadly or strictly we try to interpret relevant provisions, at the very least large-scale uses of force carried out without the explicit authorization of the Security Council, such as the NATO air strikes, cannot be considered acceptable under an interpretation of the UN Charter.
However, the point I would like to take up is, this: what meaning is there in emphasizing this kind of UN Charter violation in cases such as the NATO air strikes? In other words, my position is that in these cases the UN Charter is not properly maintained as the exclusive applicable law; and therefore, the application of general international law should be considered. I believe that when the Security Council is stalled in the resolution of a conflict and we are faced with a situation where the measures ordered by the Security Council have not been fulfilled, then the function of Chapter VII must be deemed ?inoperative?. As a result, lex specialis ceases to be used and lex generalis comes back into effect. Thus, in my view, a shift of applicable law from the UN Charter to general international law takes place in such a situation.
Precedents bear out this argument. For example, the Korean War began in 1950 in the form of the application of the Charter as an enforcement action of the UN, although there was some irregularity caused by the absence of the Soviet Union from the Security Council. Then, with the return of the Soviet Union to the Security Council in August 1950, the Council?s activities were paralyzed, and beginning in January 1951, the issue of Korea was removed from the Security Council?s agenda. The conflict then ended with an armistice agreement that was concluded under the system of general international law following well-known processes. The General Assembly at that time merely welcomed the truce, and recommended that the Korean question should be settled by a political conference of ?the member States contributing the forces?, rather than the UN itself. This action can only be interpreted as an expression by the UN of its intention to withdraw from involvement in the Korean situation. Thus, the Korean Conflict, which began as an application of the UN Charter, was concluded under the system of general international law.
The hostage crisis in Teheran can also be considered from this viewpoint. Immediately after the crisis began in November 1979, the Security Council passed a unanimous resolution to free the hostages. At the end of December, it again demanded the immediate release of the hostages. The Security Council decided to reconvene and take effective measures based on Chapter VII of the UN Charter if its most recent demand was not complied with within a week. However, the U.S. proposal of economic sanctions against Iran was vetoed by the Soviet Union, subsequent mediation attempts by the UN and other organizations failed, and the hostages remained captive.
At the end of its rope, the U.S. attempted its own hostage rescue operation in April 1980. The International Court of Justice criticized this use of force by the U.S. as having undermined respect for judicial process. However, the Court never considered this action from the viewpoint of illegality and responsibility but did so merely as a matter of opposability, and in effect, the Court appeared to consider the problem on the basis of general international law rather than the UN Charter.
Another case we can view in this light is the Falklands dispute of 1980. The Security Council recognized Argentina?s military invasion of the Falklands as a breach of peace and demanded the immediate withdrawal of the Argentine army. However, Argentina refused to comply, and subsequent mediation attempts by the UN Secretary-General, the U.S. and others all proved unsuccessful. As a result of this turn of events, the UN Charter took a back seat to the applicable law, and a battle was fought in the form of a military clash under general international law. In the end, the matter was resolved when the U.K. forcibly took back the islands. I know that it was the position of the British Government that this was the exercise of the right of self-defense on the part of the United Kingdom, but even so, it seems to me that the right of self-defense in this case is based on general international law rather than Article 51 of the UN Charter due to the Security Council?s inaction.
My position is not to link this shift of applicable law from the UN Charter to general international law unconditionally to the inability of the Security Council to function due to the use of veto power. This shift of applicable law should be recognized under the following sets of conditions: First, the Security Council has determined a certain incident as a situation falling under Chapter VII by referring to breach of peace or other action specified in the Chapter. Second, the Council has ordered the aggressor State to take specific measures, for example, the cessation of hostilities and withdrawal of army units. And third, the Security Council is unable to secure compliance with the conditions it has demanded. In these circumstances, Chapter VII is deemed unenforceable or inoperative. In such a case, the legal evaluation of the actions taken by the injured State or other related States to restore the original status quo should be performed under general international law rather than under the UN Charter.
It appears that the UN Charter and its principle of the non-use of force in particular have been rather excessively praised in Japan, while it is my impression that Europeans and Americans seem to have a more realistic view of the Charter. In any event, it is natural to think that the reason that a State accepts the prohibition of the use of force under the Charter to begin with is because collective security functions effectively, and that if worst comes to worst the State?s own security is guaranteed through this collective security system. In this sense, Article 2 (4) should be considered a ?function? of Chapter VII; the principle of non-use of force relies on the actual functioning of Chapter VII.
It is said that the UN Charter has two sets of norms: constitutional and institutional. These two are integrally linked and cannot be separated. Moreover, I submit that the UN Charter is one of a number of ordinary multilateral treaties. The idea that it is the constitution, quasi-constitution or higher law of the international community is difficult for me to support in light of the realities of international relations, much less that it be defined as jus cogens.
By now, you realize that there are two ways to justify the NATO actions. One is to rely on the ?margin of flexibility? in the interpretation of the Charter provisions that Professor Franck was trying to demonstrate. The other approach is mine that shifts the applicable law from the UN Charter to general international law. One may think of the phrase saying: ?Who killed Article 2(4)?: Tom Franck did. Who killed the UN Charter?: Shinya Murase did.? Of course, neither proposition is valid. As far as I am concerned, I never have had even the slightest intention of undermining the UN or the UN Charter, either in my current research and teaching roles or as a former legal officer of the UN. However, we should not uphold it inappropriately, nor entertain disproportionate expectations or illusions about it. If one gives unduly high status to the UN Charter, I am afraid that it may invite a paradoxical result of risking the very life of the Charter, which I would call the ?Titanic paradox?, named after that wonderful Hollywood movie. In any event, I believe that there is a need to decide upon the positioning of the UN Charter appropriately within the context of general international law. In the end, this would be the way leading to the Charter?s sustainable development over the long term.
Next we have the question of how, under general international law, to assess forcible humanitarian measures as in the case of the NATO air attacks. I cannot agree with the view that the principle of non-use of force has been established as a principle of international customary law with an identical normative content with, but independent of, Article 2(4). True, Article 2(4) was recognized also as a principle of customary law in the ICJ?s majority opinion of the Nicaragua Case. However, no basis whatsoever for this was indicated in the judgment, which was one of the points criticized, among others, by Judge Jennings in his dissenting opinion. While one may refer in this regard to the 1970 General Assembly declaration on Friendly Relations of States, I would take a rather restrictive view on the legal effect of this document.
As I discussed earlier, I find it difficult to support the method of interpretation of the existing international law on the issue of prohibition of force that equates the UN Charter, which embodies collective security mechanisms, with general international law, which lacks such a system, in the same argument. The distinction between the two is very important, because as we know, the method of legal evaluation, particularly the burden of proof, becomes quite different, depending on which of the prohibitive norm or permissive norm is set as preconditions.
When I refer to general international law, naturally, I am speaking of the general international law of 1999, and not that of the 18th or 19th century. The cases of humanitarian intervention in those days were primarily based on the egoistic and selfish motives of the intervening States which were nonetheless considered permissible then, whereas the measures taken by NATO countries could well be said to have been based on the unselfish intentions for safeguarding the general interest of the international community rather than their individual interests, however unwise or improper the actions might have been considered from the political point of view.
Now, I would like to offer my provisional view on how we should consider the NATO bombings under general international law. This action by NATO can be seen, in my view, as a unilateral measure taken by a group of States, and as such, must be regarded as having opposability vis-à-vis the Federal Republic of Yugoslavia.
With regard to the concept of opposability, you will recall that the ICJ first referred to it in the Fisheries case in 1951, and again in more detail in the Fisheries Jurisdiction case in 1974. Professor J.G. Starke shed light on this concept in the late 1960s, and in Japan, Professor Soji Yamamoto, now a judge at the Law of the Sea Tribunal, each made significant contributions in clarifying the implications of the concept of opposability in international law. I elaborated on the concept in my Hague Academy lectures in 1995 as well as in my course at the Thessaloniki Institute in 1997, both of which are cited in my handout1.
First of all, it is very important to distinguish between a unilateral act and a unilateral measure. A unilateral act is a juridical act whose conditions and legal effects are clearly defined in the established rules of international law, whether by customary law or treaty law, and thus is presumably based on the prior consent of the States concerned. By contrast to a unilateral act, a unilateral measure is an action taken by a State, a group of States or in some cases an international organization with external or extraterritorial effects, and is based on urgency and equity. Unilateral measures in this sense may be close to what the French jurists have called ?les actes unilatéraux hétéronormateur? (heteronormative unilateral acts) imposing obligations or burdens on other States without their consent, as distinct to ?les actes unilatéraux autonormateurs? (autonormative or self-imposing unilateral acts). With regard to unilateral measures, the ICJ has rendered judgments on the basis of opposability rather than legality in several cases.
The most striking aspect of a unilateral measure is the fact that it is taken in a situation where there is lacuna in international law where the law is emerging or undergoing change. Thus, for example, in the Fisheries Jurisdiction, the Court concluded that the Icelandic Regulations extending Iceland?s fisheries zone to 50 nautical miles ?[were] not opposable to the United Kingdom?. In other words, the Court reached no conclusion regarding the United Kingdom?s initial position that the extension was ?ipso jure illegal and therefore invalid erga omnes?. Rather, the Court held only that the measures in question were not opposable. Such a judgment was inevitable in view of the fact that, while the case was pending before the Court, some countries were already beginning to assert 200-mile exclusive economic zone.
Thus, a special problem with unilateral measures occurs when the content of the applicable law is not yet clearly established. The response to large-scale human rights violations within a country?s borders, as in the Kosovo crisis, is, I think, a perfect example of a situation where the international law has not yet been clearly established.
Although primary substantive rules of international law stating that human rights violations are actions that violate international law are quite well developed, this is not the case with secondary international law rules regarding procedures and mechanisms that should be used to handle such grave violations. The development of such secondary rules is not yet complete. In this kind of ambiguous normative situation, I believe that the actions against Yugoslavia should at least be recognized as being opposable ?humanitarian measures.?
Now, you may ask, ?What are the component elements of opposability?? First, the objective elements necessary to comprise opposability are effectiveness and legitimacy. Effectiveness refers to the factor of power needed to guarantee realization of a measure in question. If a measure is not implemented effectively, it is simply non-opposable. The measure in question should also be supported by legitimacy, and must conform to the general interest of the international community in a manner that outweighs the special interest or interests of a particular State or a group of States. The NATO actions appear to have been fully in accordance with the effectiveness requirement due to NATO?s overwhelming military power. As to legitimacy, NATO had the strong support of the international community, including the G-8 Summit, OSCE and the so-called Rambouillet Process, and Security Council resolution 1160 and its subsequent resolutions could be invoked in this regard.
Whereas effectiveness and legitimacy are objective elements of opposability, the principle of ?good faith? is very important as the subjective standard in evaluating whether the measures in question can be considered opposable under an imminent situation in which there are no available alternatives. I believe that the efforts made by the NATO countries in this regard should also be positively assessed.
If that is the case, then the NATO action could be considered ?opposable? as measures undertaken to prevent further deterioration of the situation, while no effective measures were forthcoming from the Security Council. I do not think that we can rely on simple legal/illegal, or black or white, criteria in assessing a situation such as the Kosovo crisis. On the contrary, we should look at the gray area of normativity, and apply a ?relative? normative scale. In other words, instead of all-or-nothing, or zero-or-ten argument, it should be balanced, say, in the 3 to 7 range, recognizing the legal effect of relative degree of opposability. If you agree with this analysis, then the NATO bombings can be considered as an ?opposable? use of force taken as an unavoidable measure for the purpose of preventing a worsening of conditions in an emergency situation where large-scale human rights violations were being committed, and UN Security Council measures had no effect whatsoever.
I am hoping that, if the current dispute between Yugoslavia and some NATO countries pending before ICJ proceeds to the merits phase, the Court will examine the case on the basis of opposability criteria.
Furthermore, I believe that the idea of ?the emerging customary principle of forcible countermeasures? elaborated by Professor Antonio Cassese last year in the European Journal of International Law is quite attractive. However, the legal basis for countermeasures by a third party is not yet clearly established. In addition, when one considers that the ILC?s draft text of State Responsibility that Professor James Crawford has been working on prohibits the use of force in countermeasures, the invocation of this idea seems somewhat difficult.
Whatever the case, measures based on opposability are provisional and transitional by nature and their legal effect is in principle limited to particularized relations between the States concerned. Therefore, the clear and early authorization of these measures by a competent organization must occur. The opposability of the NATO air attacks was confirmed and legalized ex post facto by Security Council resolution 1244. As you know, this resolution officially recognized the factual situation created by the NATO actions and laid the foundation for an international peace presence in Kosovo comprised primarily of NATO troops.
To add here something that is slightly off our main subject, the first paragraph of resolution 1244 that I just mentioned quoted the Chair statement of the G8 Foreign Ministers? Meeting of May 1999, noting that a political settlement of Kosovo crisis should be based on that statement. As G8 Summit Meeting includes Japan and Germany, it seems to me that this speaks to the inability of the current Security Council system to adequately deal with the security of the present day international community. In this sense, I believe that the reform of the Security Council is our most pressing task of all.
In closing, I would like to state that I believe that no unilateral measure is desirable. However, it is largely because of structural defects in the international system, including the UN system, that unilateral measures are prevalent in the present-day world. The ineffectiveness of institutions in responding to crises creates a situation ripe for unilateral actions. Because of their status, the world?s major powers are most capable of taking such actions. Precisely because of their preponderant power, however, abuses of unilateral action are difficult to control. Some unilateral measures are opposable, while others are not. Opposability is assessed according to the normative criteria of effectiveness and legitimacy. To be opposable, the action taken should meet international standards for disciplined behavior, and in any case, all unilateral actions must ultimately meet tests of international lawfulness. Opposability is thus a useful concept in differentiating between cases of permissible and non-permissible unilateral measures.
Needless to say, no use of force is desirable, and the NATO actions were deplorable in many ways. However, I believe that there are circumstances where the unilateral use of force is not only permitted but also perhaps required in order to prevent the worst conceivable situations from taking place. Under such circumstances, we, as international lawyers, cannot and should not merely say that the actions were illegal but were necessary and legitimate. I believe that we should try to make every effort for accommodating the ethical considerations for necessity and legitimacy, as well as the normative elements reflecting the actual power relations, into the province of international law. |
