Unilateral Coercive Measures and International Law

1
Unilateral Coercive Measures and International
Law

• by
• Ben Chigara, Ph.D. (University of Nottingham)
• LL.M. With Distinction, Best performance award
  (Hull University)
• BA Hons. (Law Psychology) University of Keele
• Professor of Law, Brunel University, London, UK

2
Universalism Unilateralism /-?

• The chains of habit are too weak to be felt until
  they are too strong to be broken.

3
How clear can Public International Law be?

• Lotus Case (France v Turkey) PCIJ Reports Series
  A, No.10. p.253 (1927) Held There exists a
  hierarchy of restrictions against States in their
  relations one with another. The first and
  foremost restriction imposed by international law
  upon a State is that failing a permissive rule
  to the contrary it may not exercise its power
  in any form in the territory of another State.
• Island of Palmas Case (Netherlands v USA) 1928 -
  Held In the relations between States, title to
  territory is the single most important signifier
  of sovereign status. It demonstrates
  independence in regard to a portion of the globe
  to exercise therein, and to the exclusion of any
  other State, the functions of a State - per
  Judge Huber, Island of Palmers Case (1928) 2
  R.I.A.A. p. per Judge Huber

4
How clear can Public International Law be?

• Corfu Channel Case, ICJ Reports (1949) p.35 Held
  Between independent States, respect for
  territorial sovereignty is an essential
  foundation of international relations
• ICJ Advisory Opinion on the probable use of NW
  1996 Held Whatever the consequences, the Court
  could not exclude that such use would be lawful
  in extreme cases of self-defence, where the very
  survival of a state would be at issue
• Case Concerning Military and Paramilitary
  Activities in and against Nicaragua (Merits) ICJ
  Reports (1986) para. 227-8 Held Art 2.4 UN
  Charter not only requires that States refrain
  from the threat or, actual use of force but also
  balances this requirement on the promise of an
  effective collective security regime under the
  control of the Security Council for the
  protection of States from violators of the peace.
• ICJ stated that this requires States not to just
  renounce war, but also all the other forms of
  interstate violence.
• WHERE DOES THIS LEAVE UCMs?

5
Normative Effects of Unilateral Coercive Measures

• Reject Lotus Case idea of a hierarchy of norms
• Reject authoritative interpretation of Art 2.4
  in Nicaragua Case
• Reject notion of statehood under Monte- Video
  Convention (1933)
• Exaggerate demise of idea of sovereignty in MIL
  even in light of ICJ Advisory Opinion in Nuclear
  Weapons Case and Germany v Italy (2011)
• Reject rule of law in interstate relations and
  substitute primitive instincts for enlightenment

6
Normative Effects of Unilateral Coercive Measures

• Reject effect of Article 2.1 of UN Charter
  according to which all States are sovereign
  equals
• Germany v Italy (3 March 2012) ICJ stated
  sovereign equality of States, which, as Article
  2, paragraph 1, of the Charter of the United
  Nations makes clear, is one of the fundamental
  principles of the international legal order. This
  principle has to be viewed together with the
  principle that each State possesses sovereignty
  over its own territory and that there flows from
  that sovereignty the jurisdiction of the State
  over events and persons within that territory.

7
Resort to primal instincts

• Law is unreliable, because of state of normative
  ambiguity (Daphne Richemond, 6 Yale H.R. Dev
  Law Journal
• Consequently we cannot wait until it has
  developed through the phases of lex lata and
  messiah, resulting in strict normativity
• in the absence of a prohibitive rule, there is
  indeed a rule of unilateral humanitarian
  intervention D.R. ibid.
• Earlier slides suggest the law against UCM is
  clear
• In any event, strict normativity is unlikely to
  deter HR violators more efficiently than the
  current framework Daphne Richemond (in my view
  wrongly construed)

8
Social effects of Unilateral Coercive Measures

• For lack of wood the fire goes out, and where
  there is no whisperer, quarrelling ceases. Prov.
  2620
• Give appearance of taking sides between parties
• Promote rigidity between conflicting parties
  prolongs exacerbates human suffering sought to
  be contained
• Parties focus on clinching victim status more
  than on resolving their differences
• Intensify the conflict (Cuba v USA 50yrs)
• Promotes/Escalates the very suffering used as
  basis for UCT
• Confuses dialogue about who is responsible for
  human suffering between the Coercive Measure
  Implementing State the Target State Authorities

9
Certitudes in target State

• Disruption to national economy
• Consequential illicit trading grows/takes over
• Consequential reduction in national income
• Outpouring of economic and often false
  political refugees impacting family relations
• Consequential fracturing of cultural ties built
  over centuries between (i) concerned States
  (ii) nationals of target State and coercing
  State (iii) entrepreneurs on either side

10
Procedurally counter-productive

• Cannot ensure desired effect during regime!
• Cannot guarantee the proportionality requirement.
• Demonstrate primal instincts to humiliate

11
Observations

• UCM throw out the rule book and threaten new
  illegalities in inter-State relations except to
  the extent that the actor presumes the target
  State's incompetence to react in a manner that
  also throws out the rule book.
• This is because
• 1. A 'unilateral action' is an act by a
  formally unauthorised participant which
  effectively pre-empts the official decision that
  a legally designated official or agency was
  supposed to take. Yet the unilateral action is
  accompanied by a claim that it is, nonetheless,
  lawful" Reisman, M.W. (2000) Unilateral Action
  and the Transformations of the World Constitutive
  Process The Special Problem of Humanitarian
  Intervention EJIL (11) 1
• 2. A unilateral action effectively replaces
  lawful decision, by obviating it entirely or
  forcing official processes to endorse it.
  Reisman, ibid.
• 3. Other unilateral acts do not pre-empt or
  replace authoritative decision they merely
  stimulate its operation and are ultimately
  reviewed by it. Reisman, Ibid.
• Enforcing State cannot prove at any point of its
  UCM regime that the human suffering that it
  sought to contain has been abated by the
  intervention. Often it gets worse. Even if it may
  abate, other factors exclusive to the UCM may be
  responsible for the change.
• Research suggests that during UCM regimes, in the
  target State the poor get poorer women and
  children suffer as family relations break up,
  children are forced into prostitution for food to
  survive, refugee problems for immediate
  neighbours and false refugees appear in distant
  countries, etc

12
Observations and Recommendations

• The question of legality under international law
  of UCM can appear as complex for the untutored
  mind just as easily as easily as it can appear
  wilfully ambiguous for the trained lawyer, social
  scientist or diplomat.
• Why?
• Because as presently constructed it is a question
  for constitutional law. Look at all the advisory
  opinions of the ICJ. Always formulated along the
  question of legality of this or that
• However, the justifications for this formulation
  point to an entirely different constituency of
  law, namely enforcement of International Human
  Rights Law.
• The apparent and inevitable mingling in the
  discourse on UCM of principles of constitutional
  law on the one hand, and the protection of
  fundamental human rights law in target States as
  the basis of UCM on the other manifests in my
  view an innocent and genuine frustration of
  Unilateral Coercive Measure Centric States with
  the absence of a more efficient mechanism or
  system for the protection of HR. However, they
  appear too timid to admit it or determined to
  tackle.

13
Recommendations

• It shows that UN Human Rights Commissions, Human
  Rights Committees and Councils are not the best
  way to stop systematic and widespread human
  rights in sovereign States when they occur.
  Schennin and Nowak who are both exemplary in
  their service to the UN HR movements now advocate
  the establishment of a World Court of Human
  Rights.
• Such a development would, I am sure cancel out
  apologist claims that nothing in the present
  world order is more capable than UCM to deter
  human rights violators
• Secondly, it would tackle the conceptual void
  that allows the question of UCM to be presented
  as a constitutional court (ICJ) matter on the
  enforcement of HR
•  The UN must make haste to establish a World
  Court of Human Rights
• The jurisdiction of such a Court and its mandate
  should be limited to inter-State complaints and
  exclude individual petitions and class actions
  States