Is this the “End of International Law”?

by Julian Ku

So asks Robert Dreyfuss of The Nation, in his interesting piece about the recent U.S. cross-border raids into Pakistan and Syria, with Iran looming (see this NYT article for background).  Dreyfuss is very worried about this doctrine, and suggests that its acceptance could result in the “end of international law.”  I wouldn’t go that far, but it is definitely a challenge to traditional norms of international law, although as I suggested here, the doctrine does have some pedigree in the Law of the Sea.  Supporters appear to have grafted a new element to the traditional “hot pursuit” doctrine: the idea that raiding a “failed”  or at least “failing” state that cannot maintain its sovereignty is more justifiable.  President Obama (yes, I’m trying to jinx him) may have a particular interest in this doctrine since raiding Pakistan was something he first raised a couple of years ago.

http://opiniojuris.org/2008/10/28/is-this-the-end-of-international-law/

8 Responses

  1. I am constantly amazed by commentaries such as these. Since when are ‘breaches of international doctrine’ to be construed as ‘the end of international law’ rather than internationally unlawful acts. I don’t think a couple of isolated incidents change this. It would take an awful lot more than these incidents, in my view, to change such a fundamental principle.

  2. Well said

  3. Yes, it is probably just one in a long line of violations of international law. But when the most powerful states do it. the consequences for international law are graver, since they cannot be punished in any way.

    Allowing attacks on “failed states” doesn’t really promise much, either, since it is easy to characterize one’s targets in just this way.

    From a Canadian perspective, “failed states” are those which fail to offer a universal health plan to its citizens. You know, “failure to protect”.

  4. It takes more than the actions of one state to make a change to international law, no matter how powerful that state is. In any case, the US’ status as a powerful state in the context of being able to shape international norms especially relating to human rights law and the use of force appears so diminished at the moment that I can’t imagine sufficient state practice would build around this to bring about the development or expansion of a customary international doctrine. Maybe in another eight years, but not now in my opinion.

  5. Indeed, these recurring populist announcements of the (imminent) death or end of international law are becoming annoying, even when one leaves aside the sheer conceptual emptiness of such declarations (what on earth is the »death« or »end« of international law supposed to mean, anyway?). I think that neither international law as a whole nor its perhaps most sensitive part, the framework governing recourse to force built on Art 2(4), can be pushed to the edge of extinction through such blatant, yet relatively isolated violations (in the big scheme of things); that hasn’t happened in the context of Iraq 2003, as some have then suggested (e.g. Glennon 2003, Perle 2003) and doesn’t seem to be happening now (presuming that despite the conceptual unclarity, one would »recognize the death of international law when one saw it«).
    To a certain logic, pushing for a change of some rules of international law through deliberate violations would on its own not amount to an attempted murder of international law, but would in a way even prove its relevance – why bother to justify some action in terms of international law if that is (soon to be) irrelevant?
    At the same time, I agree with the previous commentators stressing that one country, regardless of its relative power (and this is not to say that power is not at all a factor in processes of legal change), cannot transofrm some »non-paradigmatic« behavioural pattern or political doctrine into a legal rule without some sort of participation or (explicit or implicit) support by other states, certainly not when it comes to such fundamental rules of international law as the prohibition on the use of force in international relations. Besides, what seems to be missing in this case that we’re discussing is some more information on the actual position of the US – is the administration justifying the acts in Pakistan and Syria in legal terms at all and if so, does it base its justifications on some »new« legal doctrine of hot pursuit/targetted killings/whatever else consistent with the framework of the use of force? I’ve not come accross (or searched for) such justifications yet, so maybe somebody could comment on that?
    Much more to be discussed, but these are just some brainstorming thoughts. Hope more comments will follow.
    There’s a thought I share with Dreyfuss, though: these issues are no small potatoes.
     

  6. Indeed, these people can’t appreciate what a breach of law is. It actually c o n f i r m s the law behind it. Put differently, not even the atrocities of the Second World War were able to put an end to international law. Quite to the contrary, it came out stronger than ever before.

  7. There is no clear demarcation line between Afghanistan and Pakistan. It meanders through the Pashtun tribal area and is in heavy dispute. Afghanistan and Pakistan use different maps…and Pakistan has moved that border westward to strategic high ground over the past decade. What defines Pakistan’s borders, in Pakistan’s eyes, isn’t the nebulous Durand line but the places they park their forces (some of whom work with the Taliban).

    It could therefore be argued that Pakistan is the nation violating soveriegnty here, rather than the contrary. So the question of the hour would be…can a nation make the case that there is a sovereignty violation if there exists no set line of demarcation as to whether the territory belongs to Pakistan or Afghanistan? If so, Pakistan certainly holds no moral high ground.

  8. Edited to add…and if the answer is no, there’s little to support the charge that international law has been violated. Either way, the issue is far more nebulous than posters above seem to either understand and/or want to admit.

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