Customary International Law and Iraq

Those of us old enough to remember the Bowery Boys recall this shtick: the heroes find themselves in a pickle with the bad guys or under the baton of a policeman who is unaware of their community-minded vigilante efforts. One of them shouts “OK boys, routine 43” or “routine 11″. Quicker than you can say ‘bam pow kerbang,’ the Boys’ acrobatic jujitsu turns the tables on their adversaries. There was comedy in the slapstick and comedy in the pretense that there really was such a thing as a routine 43 or a routine 11, as if the Bowery Boys actually hit the streets with a polished repertoire of dozens of escape routines.

Credulous observers of President Bush’s acrobatics in the international arena suppose that President Bush, the United Nations Security Council and opponents of the US on that body are sparring in accordance with their own commonly agreed routine, rules of procedure that contemplate the UN Security Council in the role of the world’s legislature, interpreting and supplementing the UN Charter as if the Charter were a Code Napoleon binding on all nations. Observers assume, in other words, that while the routines of international law are unfamiliar to them, they are well known to and accepted by the players.

Little understood is that there is no such thing as international law in the sense that there is a Food and Drug Act or that there are rules respecting the operation of motor vehicles. International law — the term law is a misnomer — is in fact a pattern of custom and practice which states, in the sovereign exercise of state power, elect to follow. Why? Because of the centrality of state sovereignty in the conduct of international relations. Even the argument that France uses to paint the United States as unilateralist, that the United States may not violate Iraq’s sovereignty, elevates state sovereignty to primus inter pares among international values.

International law — better understood as international practice — has two sources, custom and treaties. As to treaties, the United States is legally bound to the terms of its tax treaty with Britain and it is bound to its treaty obligations with Canada and Mexico under NAFTA, in each case because it is a signatory to those documents. In other words, a treaty is a contract, and the United States, as is the case with any party to a contract, is expected to meet the obligations undertaken.

The other source of international law, custom, is more diffuse. A traditional formulation of a customary international law is that it consists of a general practice evidenced by sovereign states which is accepted in the international community as law. Customary international law, therefore, has two components. First, it must actually be descriptive, to some meaningful extent, of the actual conduct of actors on the international stage, and, second, those actors must view that pattern of conduct as a binding principle.

The international law issues over which the United States and France are fighting involve the interpretation of the United States’ treaty obligations, and the extent to which certain principles of international customary law override those obligations. Article 2(4) of the UN Charter, a United States treaty obligation, proscribes the “threat or use of force against the territorial integrity or political independence of any state.”

By placing state sovereignty as the centerpiece of international relations, and in allowing for a self-defense exception to that rule, the UN Charter amounts in effect to a codification of customary international law. Furthermore, although not codified in the UN Charter, nations retain the right to self defense. As it is phrased in the 1911 Catholic Encyclopedia definition of just war, a nation may attack if “menaced by foreign aggression.” In addition, it has become a widely held view since World War II (and especially in the last twenty-five years1 ) that the rule against violation of state sovereignty yields to the right of other states to intervene to prevent gross violations of human rights.

France insists on a contract-oriented interpretation of those international rules, arguing that the US can avail itself of exceptions to the nonintervention principal only through the procedures of the UN Security Council. The US contends that, as state sovereignty is the paramount value in customary international law, the US may make its own determination of when its self-defense rights and concerns over human rights override Iraq’s right to be free of violations of its sovereignty.

Prior to World War II, customary international law evolved by incorporating principles derived deductively, that is, from observance of patterns of international conduct. That is the traditional formulation: general practices which are accepted as law. Since World War II, customary international law has also evolved inductively, from aspirational language in international treaties (the U.N. Charter being the most prominent example), declarations of international bodies and decisions of international courts.

This modern trend towards viewing institutional declarations as a source of customary international law has both accelerated the evolution of customary law and changed the nature of obligations that arise in the international arena. Specifically, while a quintessential example of traditional international law would involve rules relating to the conduct of international commerce, rules of the road, so to speak — piracy, salvage, and so forth — modern customary law tends to concern itself with more substantive matters, matters of moral concern. The process of incorporating human rights concerns into customary international law has largely been driven by this modern, treaty and institution-driven process.

The traditional sources of customary international law, political and military events, however, continue to play a significant role the evolution of values-based customary law. For example, the emergence of democratic states in East Asia, eastern Europe and South America suggests an emerging customary law consensus that the right of all peoples to be governed democratically is a human right, and therefore a matter of international concern. In addition, President Bush has used an expanded interpretation of the self-defense grounds for intervention based on worries over the proliferation of weapons of mass destruction.

The modern breed of customary international law sources, exemplified by the United Nations Charter, lies at the heart of the dispute between the United States and France. More specifically, the point of friction lies in the clash between the deeply embedded traditional customary law value placed on state sovereignty, embedded, indeed, in the charter of the United Nations, and the modern trend of embedding new rules through the workings of international bodies. It is a battle over what will serve as legitimate sources of customary international law in the future. Understood as a battle over procedure — whether or not international bodies are the sole source of new customary international law — it is the United States which is the traditionalist — however novel its substantive grounds for intervention — and France which is the radical.

A demonstration of the problem of translating, or even identifying international norms, and then translating them into action is evident in a Reagan-era case decided in 1986 by the International Court of Justice (a creature of the United Nations charter). Nicaragua sued the United States for arming the Contras, claiming that fomenting insurrection violated the United Nations Charter ban against the threat or use of force against the territorial integrity or political independence of any state.

The Court’s analysis turned on whether customary international law had evolved to allow the United States’ actions to come under the self-defense exception to the nonintervention rule. “Reliance by a State on a novel right or an unprecedented exception to the principle might,” the Court noted, “if shared in principle by other States, tends towards a modification of customary international law.” The Court concluded that arming the Contras was an exceptional act and not typical of a general practice of nations. As such, it was not a valid act of self defense and the United States had therefore violated the UN Charter. (The Court also ruled, by the way, that Nicaragua had violated the UN Charter by arming insurgents in neighboring Guatemala, Costa Rica and El Salvador.)

That would have settled it, except that the United States never accepted the jurisdiction of the court over the issue. The United States used traditional and treaty based sources of international law, just as the Court had done in ruling against the United States, to argue that arming the Contras was essentially a political issue, and therefore belonged, rather than in the International Court of Justice, in the UN Security Council (where, conveniently, the United States could exercise its veto).

The Nicaragua case is interesting in this context for two reasons. First, it is a rehearsal of the same issue — who shall decide — which vexes the world community today in connection with Iraq (and is a likely rehearsal of the resolution of that issue). Second, it is useful, for the purposes of understanding the dynamic of customary international law, to examine the facts of the case in light of later events. Nicaragua subsequently joined the world-wide trend toward more democratic rule. Had the United States elected to participate in the case and had it argued that the undemocratic nature of the Sandanista regime justified intervention on human rights grounds, it may not have prevailed in court, but it would, as events — and the current trend of customary law — proves, have been in the right.

So now that we’ve digested the disappointing news that there is no such thing as international law, where does that leave us in assessing the present standoff between France and the United States?

Let’s start with what we knew prior to the current crisis over Iraq. First, no major power has ever consistently conformed its actions to the premise that UN bodies and agencies are the sole source of new customary international law. Though bound, in the aspirational sense, to edicts from either of the UN General Assembly or UN Security Council, states are understood to be free, as sovereign actors, to interpret resolutions in accordance with their own reading of customary international law.

Second, the UN Charter is chock full of high-minded language which is laughably out of sync with the actual conduct of even the most responsible of nations. To paraphrase Marx (Groucho, that is), any organization that enforced the UN Charter against its members wouldn’t have much of the UN membership as members.

What would M. Chirac’s international lawyer argue for France? (for Iraq?) That the UN Charter is explicit in contemplating only the UN Security Council authorizing acts in derogation of the sovereignty of Iraq. That it is customary international law — a general practice of nations which is accepted in the international community as law — that nations refer such matters to the UN and defer judgment to that body. France’s evidence? UN resolutions in 1990 authorizing the first Gulf War and the request made to the Security Council this past fall to Issue Resolution 1441 in order to force the issue of inspections.

And what would President Bush’s international lawyer argue? That traditional customary law is on his side in terms of substance and procedure.

In terms of substance, the stated intention of invading Iraq is consistent with evolving human rights law. This includes the danger of proliferation of weapons of mass destruction, the right of populations to be governed by a democratically elected government and Iraq’s failure to comply with twelve years’ worth of U.N. Security Council resolutions.

Procedurally, the case of Nicaragua v. United States reflects a consistent practice on the part of the United States in reserving the right to pick its forum for resolving international disputes. Furthermore, while the United States wasn’t big enough to address the issue directly at the time, subsequent democratization trends in Central and South America and elsewhere suggest a value in not vesting in United Nations organs the exclusive power to assert international norms. The recent embarrassment of Libya taking the chair of the United Nations Human Rights Commission supports that premise as well.

Finally, the vast majority of European states, as well as most of the states surrounding Iraq, support the U.S. position. That widespread acceptance indicates, under a traditional analysis, that President Bush’s position is in accord with international norms.

The bottom line? When President Bush shouts out “1441″ later this month, not only is he likely to prevail militarily, but unlike the improvisers in the Bowery Boy films, there really is a method in the madcap. The future may belong to M. Chirac’s French accented transnational judges and legislators, but precedent, and the present, belong to Mr. Bush.

1Consider, notably, President Carter’s unprecedented and, at the time, controversial elevation of human rights to a U.S. policy priority. Consider also Vietnam’s invasion of Cambodia in response to the Khmer Rouge genocide and later humanitarian interventions in Uganda and Yugoslavia.

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