Intervention: Some Food for Thought on a Fletcher Favourite

I was watching the Biden-Palin (or Palin-Biden, if you wish) debate on Thursday. In the course of observing the “thrust and parry” between the two, I was struck by the unanimity in which they both agreed that something had to be done about the situation in Darfur. That something would take the form of a no-fly zone over Darfur. Sudan claims that government aircraft are being used to fight bandits and protect humanitarian convoys. Both Vice-Presidential candidates will probably beg to differ.

More pertinently, the exchange between both candidates probably signals a continuation of US policy with respect to intervention and continues the “responsibility to protect” debate. This ties in to a pet Fletcher School international law topic: the limits of use of force in international law. Prof. Glennon suggests the UN Charter Art .2(4) provision has fallen into desuetude. I.e. it no longer functions as a relevant rule of international law.

Can there be no international law governing use of force by states?

Doctrinally, there are two rules at stake, the treaty rule in Art. 2(4) and the customary international law (“CIL”) rule which reflects Art. 2(4) in the North Sea Continental Shelf Cases sense. The pertinent question is ask is where the two rules stand. The answer for the CIL rule is easily answered by Prof. Glennon. Repeated violations of Art. 2(4) have resulted in the CIL rule falling into disuse and desuetude. But the treaty rule remains. Can a treaty rule fall into desuetude to the extent that the obligations contained in it are eliminated?

Conventional international law embodied in the Vienna Convention on the Law of Treaties says no. Treaties are products of the strictest consent and only consent can terminate their operations. However, treaties are also contextual instruments which are interpreted with regard to circumstances. Further, treaties become irrelevant depending on context as well. For example, the treaty obligations of a state vary in occasions of state succession, doctrinal international lawyers have placed distinctions between personal treaties and dispositive treaties.

Treaty rules also become irrelevant because of developing CIL rules. If all of us sign a treaty to purchase each other’s apples today, what happens in ten years when none of us want to eat or purchase any apples at all? We are still obliged to purchase each other’s apples, but, we tacitly agree that no one of wants apples and will not enforce that treaty. We, by CIL, have agreed to do so.

Applied to the Art. 2(4), the response in my mind, when Prof. Glennon speaks of desuetude is not shock and awe over how such an important rule has gone into demise and how can we live without it. In my mind, it is a simple question of CIL trumping treaty rules. A new CIL rule on use of force has emerged which is different from Art. 2(4). If we look back in history, the story of CIL’s primacy over treaty rules is a trite one. JL Brierly did not even consider treaties to be real international law. He opined that the only real international rules were CIL rules.

So what is the new rule governing use of force? I can’t give anything close to an answer, though I suspect some scientific analysis (rather than anecdotal evidence) of state practice and opinion juris may be necessary. Can any empiricists out there help us out?

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One Response to “Intervention: Some Food for Thought on a Fletcher Favourite”

  1. […] What does an Obama administration bode for international law? During the Presidential Primaries, ASIL conducted a survey of the various positions taken by candidates on international law issues. Obama’s responses in this survey generally signal a shift in US policy from unilateralism to multilateralism as well as an emphasis on the need for better compliance with international law so as to enhance US ability to influence international law creation and promote American values abroad. However, on particular issues, the existing international obligations and rules seemed unsatisfactory. For instance, he, in the course of the campaign, strongly advocated the re-negotiation of NAFTA as well as supported humanitarian intervention in Sudan. See http://www.asil.org/obama.cfm as well as a previous post on intervention: https://fletcherfila.wordpress.com/2008/10/06/intervention-some-food-for-thought-on-a-fletcher-favour…. […]

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