This is what I meant. You seem to be under the impression that the UN has a mandate to prevent "tyranny" or if ever installed, take it down by force. It does not.
No. What I'm saying is it can not. (I've also said in some of my previous posts that if can not prevent or remove tyranny then there is a serious problem with it given that the UN passes plenty of Resolutions against "tyranny" and its Purposes as shown in the Charter are also rendered to a large extent meaningless or irrelevant. Despite what you might think this does have consequences.)
Take a look at Article 2 (7):
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state
I trust that this is clear.
Never thought it was not
What you would like to see happen, I presume, is to establish another entity that would not fret about such sovereignty issues and go into countries and shape them according to its will. That would be tyranny in an unprecedented, international scale.
I've thought about that and I've never brought up the subject because I expect it it would possibly be tyranical and because there are other options.
In my original post I said it was worthwhile, and a good thing , and justifiable for the US to invade Iraq simply because of the terrible humanitarian crimes committed by the regime. You said it was not because it would be a violation of the UN Charter.
Many people including as far as I can tell, you, seem to think if the (eg) US decides, that either alone or with allies, invades another country to stop tyranny and genocide, that some how this is illegal - "that is a violation of international law," and so forth.
There are at least two ways we can go looking for alternatives. I believe the hard way and incorrect way is to re-interpret some of the articles of the UN Charter. The Charter in its Purpose and Principles and what follows is open to that. But there are practical and political objections to that - the biggest is trying to get a zillion people to agree. Similarly with amending the Charter or reforming the Security Council (although eventually, someday, that's going to have to happen).
A better way of going at it which I brought up in the analysis of the Charter you dismissed is this: where the UN Charter does not have application to a problem, accept that and carry on.. You must carry on because the problem is still there.
Indeed that's what's been done in the past:
The US, EU and Nato intervened in what's now the ex-Yugoslavia and came to some arrangements via Dayton and Rambouillet conferences. The UN 'validated' this later with resolutions.
The Iraq matter is in some ways clearer than than Kosovo, The UN authorized the US and allies intervene upon Iraq's invasion of Kuwait which it did, fought a war to drive Iraq out of Kuwait and, authorized by the UN the US negotiated surrender terms which Iraq never fulfilled. The UN passed several resolutions enjoining Iraq to fulfill the terms and also to stop killing its citizens which Iraq disregarded. The Allies set up the no fly zones to protect these people and the UN imposed sanctions on Iraq's trade in an effort get compliance from Iraq. Iraq has not complied. It probably never will.
Intervention in such crimes against humanity inside the borders of a country as as represented by Kosovo and Iraq are without UN permission in violation of the UN Charter.
Shinya Murase argues,
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.
216.239.33.100
An analogy: if state or provincial law doesn't have application or remedy perhaps federal or common law does.
He mentions as precedents circumstances from the Korean War, The Iran hostage taking, Falklands dispute in which international law other than that deriving from the UN and it's Security Council declarations. applied. These are worth reading.
He qualifies the conclusion,
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.
International law does not give the US or any other nation carte blanche to intervene in any way it wants in the affairs of another nation but it does have room for urgent response to humanitarian crimes
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.
Not surprisingly, (to me), the assessment seems pretty well in agreement with what the US says its trying to do in the case of Iraq.
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.
The Iraq matter is not the same as Kosovo but nonetheless the general idea is applicable.
This is very rough and ready but perhaps someone would like to read the Murase paper and see if I got any of the ideas wrong. |
