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 lexlata 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. 26:20 • 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 – 50+yrs) • 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. Schenninand 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