Obama has threatened Syria on Monday with military force “if there were signs that its arsenal of unconventional weapons was being moved or prepared for use”. While professor Julian Ku has called it a “pretty sound” “policy basis for the U.S. to use military force”, he did not give any argument why this would also be legal. The threat of force is illegal in International Law.
Eugene Volokh is a Machiavellianist but sometimes he has good arguments. This time he has a good one. In his latest blog he tries to answer the question whether laws are illegitimate if they are inspired by religious motives. His answer is no and he is right about that.
Professor Tai-Heng Cheng has a new book: “When International Law Works: Realistic Idealism After 9/11 and the Global Recession”. It has already been prized as essential reading. I know I’m a fool for writing about it, but from what I hear I already fear.
Inside the International Court of Justice, judges hush. Outside, when they don’t fear for their reputation or re-election, they speak about the elephant in the courtroom. This elephant is the lack of means for individuals to sue states in the courts of other states and in international courts. Two examples of such judges: Hersch Lauterpacht and Dame Rosalyn Higgins.
Hersch Lauterpacht pleaded for an International Court of Human Rights, criticizing the positivistic statist view of International Law (IL): “Once the cobwebs of that antiquated theory have been swept aside, the procedural incapacity of individuals is deprived of its logical foundation.”1 Dame Rosalyn Higgins argues that “there is nothing in the nature of international law which”2 dictates that individuals should not be parties to the ICJ and continues:
“Power, to be sure, rests still to a substantial degree with sovereign states: it is within their power, for the moment, to block the access of the individual to certain international tribunals and to continue to assert the old rule of nationality of claims. But the very notion of international law is not predicated upon this assumption, and the international legal system survives conceptually even were this to change. Additionally, these assumptions about access to international tribunals and force are in fact changing rapidly, with significant consequences in the delicate balance between the state and the individual.”3
Today we have got a presentation about the International Court of Justice from Judge Kenneth Keith. And I have asked the same question I have asked Judge Abdul G. Koroma last time. Of course I have received again a diplomatic answer. Here comes my question:
Judge Keith,
Some international legal scholars are mesmerized by the concept that states are free to do whatever they please and they cannot be bound by any rule without their consent. (There seems to be a correlation between the fact that the gross of this trend is citizen of a state with huge number of weapons and veto power in the Security Council.) For instance Austen Parrish, Professor of Law and the Vice Dean at Southwestern Law School, does not seem troubled by the fact that “some states, like the U.S. remain opposed to restricting their conduct abroad.”
International Law Professor Julian Ku has produced a very nice logical fallacy. He claims that Amnesty International (AI) has “jumped the shark” in presenting the Canadian Government with an 1,000 page memorandum, claiming Bush’s “responsibility for crimes under international law including torture.” According to AI, Canada has a legal obligation, during his visit, “to arrest and prosecute [or extradite] former President Bush given his responsibility for crimes under international law including torture.” This obligation arises at least from the “United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”
I have asked professor Ku to illuminate his claim, by refuting the AI’s legal argument. How can he refute the argument? It’s so simple:
In your “1998 Frankel Lecture: Bringing International Human Rights Home” you urged us “to promote obedience to international law” and told us that “we have a duty not simply to observe transnational legal process, but to try to influence it.” This is what I’m going to do, try to influence the U.S. through you. As a philosopher I am not convinced by your above arguments, I’ll have a couple of questions and two suggestions for improvement of the International Law.
Imagine that the relatives of Osama bin Laden disagree with your legal argument and wish to challenge it in a court of law, as they told New York Times. Is there any court where they can do that?
