treaties & custom

icjDevoid from much of the U.S. debate about whether to use military force against Syria is any exploration of nonviolent ways to condemn the use of chemical weapons and to push for an end to Syria’s multiyear civil war. (Prior posts.)

While it’s true that Russia, in particular, says it will veto action in the U.N. Security Council, we’ve not seen any public effort to apply effective pressure on Russia to do otherwise. No threat of a Western boycott of the Sochi Olympics – to hearken to one tool used during the Carter Administration – or any other action that similarly might sting the Putin regime. (By no means am I advocating a boycott, which does unwarranted harm to athletes. I mention it, rather, as an example of the kind of out-of-the-box thinking we haven’t seen voiced in this runup to a possible Syrian intervention. As posted months ago with respect to Syria, in this sense diplomacy hasn’t been tried.)

And while there’s been much hand-wringing over Russia’s apparent opposition to a Security Council referral of the situation in Syria to the International Criminal Court, we’ve heard no exploration of another Carter-era tool – a lawsuit in the International Court of Justice. (photo credit) My students and I have just studied that suit, brought against Iran after the November 1979 takeover of the U.S. Embassy in Tehran. The ICJ’s May 1980 decision in the Diplomatic & Consular Staff Case (U.S. v. Iran) pronounced the wrongfulness of Iran’s failure to protect the embassy and its personnel during and after the takeover. The court’s order that the two sides negotiate an appropriate remedy fueled a bilateral settlement which resulted in the release of the 52 U.S. hostages and the establishment of the Iran-U.S. Claims Tribunal, which to this day arbitrates disputes between the 2 countries.

Why not pursue a similar course in the current crisis, in lieu of or in tandem with other avenues?

A possible vehicle for such a suit would be the 1984 Convention Against Torture. Article 1(1) defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Surely, this definition is satisfied by the conduct alleged against the Syrian government: attacking civilians with chemical weapons – nerve agents that bring long-lasting injury or death to human beings – for the purpose of exacting punishment against or coercing capitulation by rebel forces.

The Convention Against Torture may serve as a vehicle for litigation because Article 30(1) contains a clause conferring ICJ jurisdiction:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

The United Nations’ online treaty database indicates that when Syria joined the Convention on August 19, 2004, it did not limit the effect of Article 30. That seems to open a path for a state party – if not the United States, which did place some limitations on its own joinder, one of the many other countries calling for action against Syria – to insist on negotiation of this dispute over chemical weapons use, with an eye to suing in the ICJ 6 months’ hence if negotiations come to naught.

An ICJ judgment that explores the relation of a chemical attack to the universal ban against torture could do much to enhance the current claim that such an attack crosses an “international redline.” Even if some snag prevented the issuance of a judgment as unequivocal as that in the Diplomatic Staff case (maybe a lex specialis concern, to name one), resort to negotiation/litigation might enable a more deliberate, less violent resolution to this grave situation.

instrument - CopyWith the joinder last week of the Republic of Nigeria, the 2013 Arms Trade Treaty has 4 states parties. That leaves 46 to go for entry into force – a number that seems achievable, given that 83 states have taken the 1st step of signing the treaty since its April 2 approval by the U.N. General Assembly. As previously posted, the Assembly’s vote (154 aye-3 nay-23 abstain) became necessary when Iran, Syria, and North Korea blocked adoption by consensus at the late-March conclusion of a final treaty-drafting conference.

Secretary of State John Kerry proclaimed in June: “The United States welcomes the opening of the Arms Trade Treaty for signature ….” But to date the United States is not a signatory.

As detailed in the final text and previously posted, the treaty is intended to regulate “conventional arms”; that is: heavy weapons like battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles, and missile launchers; ammunition; and small arms and light weapons.

After depositing the instrument of ratification, Olugbenga Ashiru, Nigeria’s Minister of Foreign Affairs, was quoted as follows:

‘This landmark event represents our deep commitment to a treaty which establishes common international standards for the import, export and transfer of conventional arms … We remain resolute and unyielding in our efforts to uphold the principle of ATT and, in particular, ensure that small arms and light weapons are appropriately transferred and access denied to terrorist groups, pirates, bandits and the like.’

His reference to nonstate actors occurred against the backdrop of Nigeria’s struggle against Boko Haram, a group responsible in recent years for attacks against civilians in the northern and central parts of the state. (According to the BBC, “Boko Haram,” “roughly translated means ‘Western education is forbidden’ in the local Hausa language.”) Earlier this month, a report by the Office of the Prosecutor found reasonable basis to characterize some attacks as crimes within the jurisdiction of the International Criminal Court. And just this week, a report surfaced that the armed group’s leader may have been killed.

Nigeria joins Antigua and Barbuda, Guyana, and Iceland as an early ratifier of the Arms Trade Treaty.

(above, detail from August 14, 2013, photo of Nigeria’s instrument of ratification, in the hands of Minister Ashiru, left, and D. Stephen Mathias, the UN’s Assistant Secretary-General for Legal Affairs)

shipsRomantic allusions to Years Before the Mast aside, working aboardship is hard labor. That work gained more protection today, as the Maritime Labour Convention of 2006, aimed “to secure the right of all seafarers to decent employment,” entered into force.

Promulgated within the framework of the International Labour Organization, the convention collects rights and norms contained in many earlier treaties. MLC 2006, as it’s been dubbed, complements 3 treaties advanced within the framework of another intergovernmental entity, the International Maritime Organization. These 3 are; SOLAS, the 1974 International Convention for the Safety of Life at Sea; MARPOL, the 1973 International Convention for the Prevention of Pollution from Ships; and STCW, the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers. (photo credit)

In Article III of the newly-in-force Maritime Labour Convention, member states pledge to respect 4 “fundamental rights”:

► “freedom of association and the effective recognition of the right to collective bargaining”
► “elimination of all forms of forced or compulsory labour”
► “effective abolition of child labour”
► “elimination of discrimination in respect of employment and occupation”

Article IV, meanwhile, proclaims that each member state “shall ensure, within the limits of its jurisdiction,” what’s been called a seafarers’ “bill of rights” –  rights to:

► “a safe and secure workplace that complies with safety standards”
► “fair terms of employment”
► “decent working and living conditions on board ship”
► “health protection, medical care, welfare measures and other forms of social protection”

Entry into force followed upon the recent ratification by a 48th state, the United Kingdom. The United States has not ratified, but 3 out of 5 permanent members of the Security Council have (France and Russia as well as Britain). Eight of the top 10 flag states – leaders in the registry of ships – also have joined: Bahamas, Cyprus, Greece, Liberia, Malta, Marshall Islands, Panama, and Singapore. (China and Hong Kong are the 2 leaders not listed.) Other ratifying states include island countries as large as Australia and as small as Barbados, and landlocked lands like Switzerland.

peace - Copy“The Art of Peace Making: Lessons Learned from Peace Treaties” is the name of an upcoming Netherlands conference marking 2 big international law anniversaries, the centennial of the Peace Palace and the tricentennial of the Peace of Utrecht. Cosponsors are the Carnegie Foundation, the University of Leiden, and the University of Utrecht; sessions will be held on September 19 at Utrecht and on September 20 at the Peace Palace Academy Hall in The Hague.

Examined in addition to the 1713 Peace of Utrecht – a set of treaties that helped bring  an end to protracted wars in Europe – will be the 1919 Versailles Treaty that ended World War I, the 1995 Dayton Accords related to the former Yugoslavia, and the 2005 Comprehensive Peace Agreement that led eventually to the establishment of the independent state of South Sudan. The effects of the absence of peace treaties also will be discussed.

Speakers, from Europe and Australia, will include: Martii Koskenniemi of the University of Helsinki; Jaap de Hoop Scheffer of peaceLeiden University, formerly the Secretary-General of NATO; and Sarah Nouwen of Cambridge University. Many other experts will contribute perspectives, not only from law, but also from fields such as history and international relations.

Full program, other details, and registration available here.

UNMy colleague, Vermont Law Professor Stephanie Farrior, Chair of the Section on International Law of the Association of American Law Schools, has put together a great lineup for the 2014 AALS annual meeting in New York – and she seeks an additional speaker to round out the panel.

The title for the section’s panel will be “International Law-Making and the United Nations.” Already set to speak on that topic at the meeting, set for 8:30-10:15 a.m. Friday,  January 3, are:

Mahnoush Arsanjani, whose 3-decade career in the U.N. Office of Legal Affairs included stints as Director of Codification, as Secretary of the International Law Commission, and as Secretary of the Committee of the Whole of the Rome Conference on the Establishment of the International Criminal Court.

► International Law Commission member Marie Jacobsson, who’s the 3d woman ever to be appointed to this 65-year-old U.N. body. Also the Principal Legal Adviser on International Law at the Swedish Ministry for Foreign Affairs, Jacobsson serves as the ILC’s Special Rapporteur on the protection of the environment in relation to armed conflicts.

Kimberly Prost, UN Security Council Ombudsperson for the Al Qaida Sanctions Committee and also the Head of the Legal Advisory Section, Division of Treaty Affairs, U.N. Office on Drugs and Crime. Prost is a former judge of the International Criminal Tribunal for the former Yugoslavia.

aalsLogoThe section further invites eligible law faculty members to e-mail manuscripts or detailed abstracts addressing “any of numerous issues in United Nations law-making, including players, processes, or practices” to international@vermontlaw.edu no later than the deadline of September 10, 2013. Full call for papers is here.

In retrospect, the early 2000s were the salad days of U.S. Supreme Court citations to foreign and international law.

As I wrote in International Law and Rehnquist-Era Reversals (2006), 3 milestone decisions included overt evidence that a majority of Justices, in the course of deciding to overrule precedents, had given consideration to norms contained in international treaties and found in the practice of foreign countries:

► Justice John Paul Stevens dropped a footnote citation to a brief by the European Union in his opinion for the Court in Atkins v. Virginia (2002), which held that the execution of mentally retarded persons violated the Cruel and Unusual Punishments Clause of the 8th Amendment to the Constitution.

► Outlawing the execution of juveniles, Justice Anthony M. Kennedy’s opinion for the Court in Roper v. Simmons (2005) stressed that international treaties and states’ practice forbade such executions.

► And in his opinion for the Court in Lawrence v. Texas (2003), Kennedy discussed British legal practice and a decision of the European Court of Human Rights to refute a prior judgment’s assertion that governmental bans on “homosexual conduct” were “firmly rooted in Judeao-Christian moral and ethical standards.”

That refutation paved the way for the invalidation of an anti-sodomy law in Lawrence – a decision on which the Court relied on June 26 of this year, when it, again through a majority opinion by Kennedy, invalidated a law denying federal benefits to married same-sex couples. (Prior posts here and here.)

antonin_scalia-photographThe trio of early 2000s decisions prompted criticism, even specious calls to impeach members of those majorities, as I have written here and here. Dissenters likewise inveighed against such citations. For example, Justice Antonin Scalia (photo credit), quoting an earlier opinion by Justice Clarence Thomas, wrote in Lawrence:

The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court … should not impose foreign moods, fads, or fashions on Americans.”

Members of the Court’s majorities in those 3 decisions pushed back in public speeches. They defended consideration of foreign norms as a responsible deliberative practice, an examination of nonbinding yet potentially persuasive sources not unlike their frequent, and accepted, examinations of useful law review articles.

Nevertheless, the criticism seems to have taken its toll: although amici continue to file briefs informing the Court of pertinent foreign norms, in the last decade citations to such sources largely vanished. The June 26 judgment in the same-sex marriage case, United States v. Windsor, stands as a curious exception.

To be sure, Windsor and a related case, Hollingsworth v. Perry, attracted amicus briefs discussing foreign and international law. Indeed, international lawyers filed briefs that cited international developments both in favor of and against gay marriage. Moreover, as I then posted, the global legal landscape on gay marriage continued to shift even as the cases were argued and under advisement.

Yet not a word about any of this in any of the opinions in Perry or Windsor. With one exception, that is.

Challenging the Court’s decision that it had jurisdiction to decide Windsor, Justice Scalia took on the majority’s contention that Chief Justice John Marshall’s opinion in McCulloch v. Maryland (1819) had made clear that the Court has power to review the constitutionality of federal statute. In a dissent joined by Chief Justice John G. Roberts Jr. and by Justice Thomas, Scalia contended that the refusal of President Barack Obama to defend the statute meant that both the government and the claimant agreed, so that there was no issue left to decide. (The majority disagreed because the government still required the claimant to pay taxes owed under the disfavored  statute.) Ridiculing the Court’s view of its power, Scalia wrote:law

The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.

One senses not only Scalia’s disagreement with the majority on an issue of standing, but also, perhaps, his frustration that Justices were aware of global changes, and likely read the briefs discussing them, yet eschewed including a citation that marked such consideration. That 2d point has merit. Supporters of foreign-norm consultation no less than opponents ought to urge – in service of the values of transparency and reasoned judgment – that Justices who have looked to such norms write that they have done so.

‘[S]uggestions that cyber means and methods of warfare exist in an extra-normative space beyond the reach of IHL are completely counter-normative.’

Michael N. Schmitt, contributing a post to a series on “International Humanitarian Law & New Technologies” sponsored at Intercross, the blog of the International Committee of the Red Cross. Schmitt, who heads the U.S. Naval War College International Law Department and is a Senior Fellow at the NATO Cooperative Cyber Defence Centre of Excellence, is among the experts who maintain that Intercross ID logo_0international humanitarian law enjoys what he calls “inherent adaptability”; therefore, consideration of what uses of new technology are lawful ought to occur within the frame of that body of law. It’s the stance he took on release of the Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), about which I previously posted, and to which he refers in his Intercross post. Schmitt does not argue that IHL is static. Rather, he predicts that some legal concepts may be “reinterpreted”; for instance, what constitutes an “attack” within cyberspace. What I’ve titled “human-free weapons” – that is, autonomous or robotic weapons, able to make targeting decisions without human intervention – pose particular interpretive challenges. Schmitt notes others’ posts in the series and “join[s] the ICRC in calling for further informed examination of the issues the systems arise.”

srENFully 71 countries have signed the Arms Trade Treaty since it was opened for signature last week at the United Nations in New York. The United States is not among them: via State Department press release, Secretary of State John Kerry said:

‘The United States welcomes the opening of the Arms Trade Treaty for signature, and we look forward to signing it as soon as the process of conforming the official translations is completed satisfactorily.’

Interpretation of that statement no doubt will be a part of an upcoming, topical forum.

The American Society of International Law will host a lunchtime talk entitled “Arms Trade Treaty: Domestic and International Implications” from 12 noon-2 p.m. Eastern time next Monday, June 17, at Tillar House, its headquarters at 2223 Massachusetts Avenue, N.W., Washington, D.C. If you’re unable to be present in person, you can watch it via live webstream.

As I’ve posted, the treaty emerged out of a final round of negotiations in March. At that point the United States was on board, but other countries balked, and so it fell to the U.N. General Assembly to adopt the text, available here.

On Monday speakers will discuss, in ASIL’s words, “a plethora of issues surrounding the Arms Trade Treaty such as the objectives and scope of the treaty, the rationale behind U.S. support for it, challenges to the implementation of the treaty, implications on the national legal system, and the international humanitarian law aspects of the treaty.” Scheduled are Thomas M. Countryman, the State Department’s Assistant Secretary for International Security and Nonproliferation, as well as representatives of 2 nongovernmental organizations that have worked for approval of the treaty: Andrea Harrison, Deputy Legal Advisor, Regional Delegation for the United States and Canada, International Committee of the Red Cross, and Scott Stedjan, Senior Policy Advisor for Humanitarian Response, Oxfam America. Moderating will be Professor David Koplow, Director of the Center for Applied Legal Studies at Georgetown Law.asil_logo

Registration and details here.

Sovereignty is dear to the People’s Republic of China. We international lawyers all know that. But we may have only a vague sense of why; that is, why Chinese jurists hold close to the concept of sovereignty. Nor are we likely to know what China thinks about other aspects op170f international law. I’ve just come across a few essays which provide some answers.

Each was published in the Chinese Journal of International Law by Dr. Xue Hanqin (right), on whose American Society of International Law intervention (video now available here) I recently posted. Xue wrote the articles while she was China’s ambassador to the Netherlands and, in 2 cases, a member of the International Law Commission. Today, she’s a judge on the International Court of Justice. Her status makes her take on China and international law well worth a read.

In “China’s Open Policy and International Law” (2005), and again in “Chinese Observations on International Law” (2007), Xue posited as the structural foundation  the Five Principles of Peaceful Coexistence, agreed upon in 1954 by Burma/Myanmar, China, India, and Indonesia. As she described them, the 5 are:

  1. “mutual respect of sovereignty and territorial integrity”;
  2. “mutual non-aggression”;
  3. “non-intervention in international affairs”;
  4. “equality and mutual benefit”; and
  5. “peaceful-coexistence.”

Xue wrote that China values sovereignty from the perspective of its history – a history marked by decades of invasion and occupation, which came to an end only in the mid-20th C. “I must say frankly,” she wrote in 2005:

‘[T]he first introduction of international law into China from the western world in the late 19th century left the Chinese people with little fond memories, as it was done through cannons and warships.’

cjil(Regarding this history, she referred to the 1990 Hague Academy lectures by the Professor Wang Tieya.) In her 2007 article, Xue situated China within the “viewpoint of the developing countries,” that “international law is based on a foreign legacy.” By this view, the U.N. Charter won acceptance because it enshrined “certain values” that postcolonial states “had been fighting for: sovereignty, equality, democracy, and self-determination.” She argued that the international legal system depends on “diversity of autonomous political communities,” and would falter if all members were forced to adhere to “one single social model.” She expressed concern lest the concept of responsibility to protect become a vehicle for usurping “multilateral mechanisms” for determining whether states may intervene against another. And even as she repeated China’s statements in support of “a just, impartial and effective” International Criminal Court, Xue argued, in the name of sovereignty, against ICC exercise of its Article 12(2) nonconsensual jurisdiction. (My own exploration of that provision is here.)

The 2 essays, along with “International Treaties in the Chinese Domestic Legal System” (2009), which Xue coauthored with Jin Qian, demonstrate the extent to which China has embraced such cooperation. (No doubt this theme is further developed in Xue’s own Hague Academy lecture, published here in 2012.) The country has entered more than 300 multilateral treaties, the vast majority since 1979.  And through a complex process that is neither entirely monist nor entirely dualist, it has implemented treaty obligations domestically – with respect to its World Trade Organization accession alone, China altered nearly 3,000 domestic laws and regulations.

China’s human rights record is, of course, an easy target for outside criticism. Yet Xue’s articles indicate that the framework for compliance is there: China has ratified thematic human rights treaties, such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as comprehensive treaties like the International Covenant on Economic, Social, and Cultural Rights – none of which the United States has ratified. (The countries switched sides on the International Covenant on Civil and Political Rights, with the United States a party and China a nonparty.) Xue further emphasized a 2005 amendment to China’s Constitution, by which Article 33 now provides:

‘The state respects and guarantees human rights.’

Xue acknowledged the growing participation of nongovernmental organizations and other nonstate actors. Indeed, she pointed out that she herself once introduced delegates at a U.N. conference on desertification “our peasants,” whom she’d brought as “grass-roots representatives” of the problem. Yet Xue questioned whether their presence had “changed the basis of decision-making”; in her view, “national interests remain a determining factor for international cooperation.”

China_revisedforState_480_1On these and other critical topics – law in the South China Sea, for instance, or climate change –  reading these 3 essays will help the Westerner contemplate the international legal system from the standpoint of the world’s most populous state.

(What follows are the remarks I delivered earlier today at the annual meeting of the American Society of International Law in Washington. The footnoted version of this speech is available at SSRN here.)

asil_logoI am very honored, and most deeply humbled, by this Prominent Woman in International Law award. I am humbled when I look at the list of prior recipients. They include: Pat Wald and Mireille Delmas-Marty, two women whose lifework has inspired my own. Stateswomen like Pat Schroeder and Geraldine Ferraro. ASIL leaders like Lucy Reed and Edie Weiss. Another woman who serves as a Special Adviser to the International Criminal Court Prosecutor, Patti Sellers. And Carol Lee, a woman who, like me, once clerked for Justice John Paul Stevens. (Indeed, as of today Justice Stevens may add “feeder judge for PWIL award” to his long list of accomplishments.)

I am even more humbled when I think of all the amazing international law women who deserve this award. Let me name a very few: Our new ASIL President-Elect, Lori Damrosch (who is here with her mother, Jean Fisler, a WILIG stalwart), not to mention ASIL fearless leader Betsy Andersen. Joan Donoghue and her sisters on the International Court of Justice. The ICC Prosecutor whom I am honored to serve, Fatou Bensouda, as well as my sister Special Advisers, Leila Sadat and Brigid Inder. Stateswomen like Mary Robinson and Hillary Clinton. And still another woman whose lifework has inspired my own, Martha Minow.

(You know, I never had a sister, and my mother has been gone for more than a decade now. But I would like to give shout-out to the men in my life: my husband, Peter O’Neill, and our son, Tiernan O’Neill. Tiernan is in school today, so they had to stay at home, but they are here today in my heart.)

I am humbled, finally, to accept this award not only on my behalf, but also on behalf of my three co-editors, Kate Doty, Jaya Ramji-Nogales, and Beth Van Schaack, and, indeed, on behalf of the more than 300 women (plus a few men) who have contributed to IntLawGrrls. Those of you who are with us here today, please stand. Thank you. This award belongs to every one of you.

Even though we are all winners, our general dislike for cacophony demands that only one of us speak today. That honor falls to me, and given that this is a lunch talk, I have chosen a light and modest topic. Well, no, I’m afraid I have not. My title is, in fact, “International Law and the Future of Peace.” For this audience, it might more fittingly be called “Peace: A Feminist Project.”

As many of you know, IntLawGrrls often dedicated their contributions to transnational foremothers. Consistent with the assumption that we women are more nurturing than other humans, helena3contributors frequently chose to honor pacifist heroines. Many from this group of foremothers rode what is sometimes called the first wave of feminism – that period in the late nineteenth and early twentieth centuries when many women (plus a few men) campaigned for change. Members of this movement are best known for winning women the vote. That goal, however, was but one of several that animated them. Equally important to many of these feminists was pacifism. Theirs was an all-out quest to end war. One such campaigner was Jeannette Rankin (above). (photo credit) As a rare woman member of Congress, Rankin voted “No” on legislation by which the United States entered World War I – and twenty-three years later, World War II.

Another was Jane Addams (below), who lectured for peace and against war, and led the U.S.-based Women’s Peace Party. In 1915, Addams chaired the International Congress of Women at The Hague and became the founding President of the Women’s International League for Peace and Freedom, an organization that thrives to this day. For her efforts Addams eventually would receive the Nobel Peace Prjane-addams-3ize. (photo credit) It must be noted that despite her achievements, the American Society of International Law denied Addams’ application for membership. As chronicled in a 1974 AJIL article co-authored by Alona Evans, Addams was “invited, instead, to subscribe to the Journal ‘for the same amount as the annual dues ….’” In fact, no woman was admitted to membership until 1921, when the Constitution’s guarantee of women’s suffrage appears to have forced the Society’s hand.

It must also be noted that not every foremother was a woman of peace. Quite to the contrary. The pirate Gráinne Ní Mháille, or Grace O’Malley, was cited by me and by nearly every other Irish IntLawGrrl. Selected from Asia were Lakshmi Bai and Trưng Trắc; from Africa, Ndaté Yàlla; and from the Caribbean, Anacaona and Nanny of the Maroons. At times, each of these women resorted to combat as a means to keep her people free from conquest or exploitation.

That we IntLawGrrls chose to honor warriors and pacifists alike points to a central paradox of peace. In its purest sense, pacifism connotes opposition to violence. And surely, the human condition is advanced every time that a life-threatening attack is averted. But the absence of that sort of violence – the non-use of force, as we lawyers call it – is not, in and of itself, peace. Whenever a careful examination reveals an apparent absence of violence to be little more than a veneer that masks exploitation, there is no peace.

mlkIt is in recognition of this fact that the peacemaker who died forty-five years ago today, Dr. Martin Luther King, Jr. (left), made clear his preference not for “negative peace which is the absence of tension,” but rather for “positive peace which is the presence of justice.”  (photo credit) Similarly, a leading theorist of peace, the Norwegian sociologist Johan Galtung, distinguished attacks, which he called “direct violence,” from exploitation, which he called “structural violence.” Galtung insisted on attention to the latter as well as the former, “not only because exploitation may lead to direct violence,” but also, and perhaps most importantly, because exploitation “is violence in itself.” This fuller understanding of peace, this acknowledgment that exploitation is itself violence, poses a challenge, Galtung wrote. The challenge is to reduce direct violence – to promote the non-use of force – without simultaneously enabling exploitation. In short, there is a line to be drawn. And in our world, the task of drawing that line often falls to the shapers of international law.

We all know in broad outline the rules that govern the use of force. They appear in the foundational text of modern international law, the Charter of the United Nations. From 1945 onwards, U.N. member states promised to “settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,” and further to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” States reserved an “inherent right” of self-defense, but only “if an armed attack occurs, until the Security Council has taken measures necessary to maintain international peace and security.” We know too that at Nuremberg and in Tokyo, convicted leaders were hanged for committing aggressive war – called crimes against peace – and for the atrocities that ensued. Taken together, these developments signaled that no state would be permitted to launch an offensive attack, that none therefore would need to exercise self-defense, and that leaders who acted in violation would be punished. That legal framework ought to have put an end to war, or at least to war between states. It did not. Read Full Article