International law beyond the nation state? From people power to ISIL/Daesh.

Author:Van Engeland, Anicee
Position:Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law

This panel was convened at 11:00 a.m., on Friday, April 1, 2016, by its moderator, Scott Lyons of the United States Agency for International Development, who introduced the panelists: Anicee Van Engeland of Oxford University Centre for Socio-Legal Studies; Steven Feldstein of the U.S. Department of State Bureau of Democracy, Human Rights, and Labor; and Boris Mamlyuk of the University of Memphis School of Law.

REMARKS BY SCOTT W. LYONS *

The dominance of a traditional state-centric prism has arguably constrained much of the international legal and policy development. In an unfortunately common dynamic, there are regularly bad actors behaving poorly to a population and this leads to the question of whether the old constraints on international intervention should still exist. Current crises expose questions of whether and at what point do serious abrogations of domestic rights implicate international law even though they occur within a traditional nation state.

As established in the Peace of Westphalia in 1648, and later enshrined after a lengthy debate on the UN Charter (1)--there are basic legal principles of sovereignty and justified intervention. Sovereignty reigns and the exceptions are solely UN Security Council resolutions and Article 51 self-defense, which can be anticipatory---given the nineteenth century Caroline Test. (2) At the same time, there is now possible uncertainty affecting the established legal norms--such as the emerging Responsibility to Protect (R2P) principles, (3) questions of what qualifies as a state, and the global reach of both threats to security and opportunities for foreign state intervention. The emerging dynamics challenge legal and policy approaches.

As there is no true central lawmaker or enforcer of both sovereignty and the protection of human rights, questions emerge as to how to address situations where there is at least a Western consensus that international norms have been violated, but there is no recourse through a Security Council framework.

Richard Haass, formerly Undersecretary of State under George W. Bush and now head of the Council on Foreign Relations, had advocated a waiver theory. This theory advocates that states constructively waive their traditional sovereignty and invite international intervention when they massacre their own people, harbor terrorists, or pursue weapons of mass destruction. (4) He argued a framework that sovereignty is not absolute, even though it has been the central pillar of world order for the last three and a half centuries.

The Montevideo principles (5) define a state, and thus the entities that have sovereignty, as having a permanent population, defined territory, a government, and a capacity to enter into foreign relations. But at the same time, states are also defined as being based upon having a primary interest in the "conservation of peace." (6) Is there a point where the failure to conserve peace justifies intervention?

In the past twenty years, political and legal actions have humanized international law to conserve peace--and there have been various forms of intervention in response to crises in Iraq, Kosovo, Liberia, Haiti, Somalia, Libya, and, to some extent, Syria--in some instances with and some instances without Security Council resolutions. The intervention in Kosovo without a Security Council resolution, while effectively humanitarian, but enacted through military violation of sovereignty, left significant uncertainty that still impacts the sovereignty debate today. (7)

Previously, humanitarian intervention was attempted to be justified through protection of one's own population abroad. Along these lines, both ISIS and Russia have, with specious arguments, stated that their use of force was to unify and protect Sunnis and Russians, respectively. Yet these forceful actions have both involved serious violations of international law.

While there is a key value system--that with rights come obligations--there are also questions of a slippery slope, even if you set the bar for intervention very high. The slippery slope matters as some states arguably may manipulate international law to pursue their own interests. Sovereignty reigns supreme, but where do we balance between the rights and responsibilities of states so that we are not making a case-by-case determination. These are some of the questions and constraints as international law tries to tackle how to address and resolve difficult crises.

There are many factors that can be evaluated in the determination of intervention, but none are determinative in the absence of an established framework. For example, how much does a basic attempt to seek, even if not to succeed, to secure a Chapter VII Security Council resolution matter given geopolitics? A resolution was sought and achieved for arguably an R2P action in Libya (8) and justified for Iraq, but not sought for Syria, Ukraine, or Georgia. How much does it matter that Russia claimed that it was acting to protect ethnic Russians for sovereignty claims--for the debatable pretense of humanitarian intervention? Does it matter that there was no evacuation of a population by Russia, like Israel's violation of Ugandan sovereignty in its rescue of hostages in Entebbe, or the U.S.'s violation of Liberia's sovereignty to evacuate threatened citizens during a conflict? Without attempting to seek a Security Council resolution or evacuate a population, the end result could be that Russia's actions are more similar to the arguably unlawful U.S. actions in Grenada and Panama, where the sovereignty violations were more difficult to justify under legal norms. For ISIS, how much does Secretary Kerry calling ISIS' actions against the Yazidis genocide (9) change the legal dynamics, regardless of whether ISIS is a state or a nonstate actor? Other questions involve the impact of the ever-expanding definition of crimes against humanity and its nexus to invoking the Responsibility to Protect. As a result of the various international criminal tribunals, the threshold has changed to widespread or systematic as alternatives and the killing of a few high-profile people to intimidate a population could be characterized as a crime against humanity. Do mass killings of protestors reach this threshold? As demonstrated by concerns about the slippery slope, both Russia and Ukraine contended that crimes against humanity were committed against their respective ethnic populations. With regards to fighting ISIS in Syria and Russian intervention in Ukraine, does arming rebels start to fall into a violation of sovereignty based upon the principles espoused in the International Court of Justice's decision regarding U.S. interference in Nicaragua? (10)

The entire debate about thresholds results from the dominance of the state-centric prism. The international legal community is not ready, nor should it be, ready to completely upend the legal principles of sovereignty that have governed politics and law for centuries. However, more and more crises will challenge this framework with no consensus as to when and where it is appropriate to respond. Theories that advocate methods for addressing these crises must at least be given careful review and scrutiny before being hamstrung by possibly outdated legal norms.

REMARKS BY STEVEN FELDSTEIN **

My remarks will examine the extent to which antidemocratic behavior and serious human rights violations obligate intervention by the international community. I will argue that in addition to situations involving the commission of genocide or mass atrocities, other circumstances involving antidemocratic behavior and major human rights abuses may also warrant international intervention; policymakers should carefully define the parameters and scope for such interventions. To assist policymakers in determining which interventions may be appropriate, I outline a four-part framework to guide decisions.

The end of World War II ushered in a new consensus that certain acts--genocide, crimes against humanity--were so appalling that they superseded sovereignty considerations. The last two decades have seen an acceleration of this shift, especially with the endorsement by member states of the Responsibility to Protect (R2P) in the Outcome Document of the 2005 UN World Summit. (1a) R2P stipulates that the international community has an obligation to intervene when a sovereign state is unable or unwilling to protect citizens from the commission of genocide, war crimes, crimes against humanity, ethnic cleansing, or their incitement. The 2011 international humanitarian intervention in Libya, where the UN Security Council authorized a no-fly zone in response to relentless civilian attacks by Muammar Gaddafi, represents a recent practical application of R2P.

There is far less consensus about whether there is a basis for the international community to intervene when the acts in question do not fall neatly into the category of genocide or mass atrocities, such as the commissioning of gross human rights violations (e.g., extrajudicial killings, torture, mass incarceration), or the propagation of repressive and antidemocratic behavior leading to violence and civilian death.

In the latter situations, there remains a strong deferral to state sovereignty. I believe this presumption deserves rethinking; it fails to recognize that widespread human rights violations accompanied by antidemocratic behavior can facilitate years of human rights abuses and a higher likelihood that...

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