Academic journal article Proceedings of the Annual Meeting-American Society of International Law

International Law beyond the Nation State? from People Power to ISIL/Daesh

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

International Law beyond the Nation State? from People Power to ISIL/Daesh

Article excerpt

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.


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. …

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