Due Process in the Context of Transitional Justice

Transitional justice has only recently become a field of its own. Despite the novice character of the field, it has expanded in an increasingly larger area in which a plurality of actors is in constant participation. In the same vein, transitional justice comprises an intricacy of elements that are closely intertwined: political, societal and legal. To analyze them in their entirety would be a herculean task that would go beyond the purpose of this essay. The purpose is to inquire in a specific facet within the normative framework and which reverberates across the aims of transitional justice. The right to due process is a central tenet of the rule of law and of any Western democracy, in particular of the liberal character. Its importance is evidenced by the fact that it is enshrined by the most relevant human rights treaties including the International Covenant on Civil and Political Rights (ICCP) specifically in its Article 14, among others. Nonetheless, it is posited that in times of transitional justice the right to due process must be interpreted according to the exceptional circumstances in which the trial is being carried out. The burden that complying carries regularly with the requisites of due process during ordinary times can, rightly so, impair a correct healing of a given society under a period of transitional justice. Thus, a plausible response to the dilemmas posed by that is to establish a lower threshold or the employ of alternate methods. Part I roughly analyzes the concept of transitional justice. For a correct understanding of the conditions surrounding the right to due process, it is essential to put in proper context what constitutes transitional justice and its objectives. Part II consists of two sections, a first one dedicated to developing a brief overview of the rule of law and the second one drawing the contours of the right to due process. Part III studies the problems with the right to due process related to a transitional justice background. Part IV is none other than the conclusion.

I. What ‘transitional’? What ‘justice’?

The fact that transitional justice is constantly evolving as a maturing field – and as a buzzword – does not exactly spell out to what it is referring to. The notion of transitional evokes a movement from one state to the other. But at the same time it conveys the assumption that a society is stalled in a particular moment and now is moving elsewhere. This is misleading. Several scholars have pointed out the deceptiveness of such thoughts. Any society is in continuous transformation, it is in transitional condition as it never stays the same[1]. It is irrelevant if these changes are for better or for worse, the fact is that no society is frozen within a certain setting. Hence the lack of clarity to what the transitional is related to.

The concept of justice equally suffers of an even bigger definitional problematic. It is one of the main philosophical and moral ideas of humankind and for that reason there have been bitter arguments over its content and delimitations.

Nonetheless, taken together transitional justice has an explicit content and it is circumscribed to a certain state of affairs. Transitional refers only to those societies changing to a liberal democracy direction after a period of authoritarianism. Justice has too specific a meaning. The UN contributes a concept of justice closely connected to the abovementioned definition of transitional justice. For the Organization, justice is

an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant[2].

Then, transitional justice can be defined as “a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse”[3].

What is occasionally omitted by certain authors is a description of the surroundings on which transitional justice happens, details that influence the possibilities of a successful process. These countries do not only come from a situation of moral bankruptcy and more often than not with the large shadow of the former regime hovering above them but also from a dire economic situation: rampant corruption, lack of resources, shabby infrastructure, and so forth. All these make the process harder as hard choices have to be made that can hamper the purposes of transitional justice[4]. Similarly, these purposes encompass “a multitude of discrete, though overlapping, and often conflicting themes”[5]. Clark has at least found six objectives; all of them interrelated to greater or lesser extent: reconciliation, peace, justice, healing, forgiveness and truth[6]. It is beyond this essay to divulge them but it is worth indicating that the right to due process for those people in charge of or responsible for gross violations of human rights have an effect on all of them. They are intertwined. There is no peace if there is no justice and justice is necessary for achieving the truth and subsequently to heal the wounds so there can be forgiveness and reconciliation. Before delving into the right to due process, it requires a step back. One central aspiration of transitional justice is to restore the rule of law. And because due process is subsumed in the rule of law, it is a precondition to analyze it before delving into due process.

II. The rule of law and its meaning in regards with the right to due process.

The rule of law is surrounded by the same uncertainties concerning transitional justice. Whereas transitional justice is at least confined to a particular situation in order to give it a workable meaning, the rule of law has varied faces and at the same time the existing different legal traditions put the accent over one trait upon another. In this regards, it is worth noting that many authors have done the enormous task of coming with a definition and with an explanation on what it consist of. Unfortunately, this would go well beyond this essay. However, despite the enormity of the rule of law, it is possible to locate certain characteristics that shed light over its importance and how crucial it is for countries that just came out from a long history of abuses to have it.

What underpins the rule of law is the idea of limitation. The rule of law came into being predominantly during the advent of liberal democracies during the eighteenth and nineteenth centuries. It is a barrier against untamed power. Under its premise, society must be a rule-governed enterprise. Power ought to be channelled through rules and norms. There cannot be arbitrariness or abuse of power. Thus, it has a positive and negative mandate. It establishes how a government must exercise its authority; how it should restrain its dominance through predictability and certainty. At the very same time, as a corollary of the concept, it promotes certain rights indispensable for a correct functioning under the rule of law.

Among those rights benefitting individuals, it comprises the right to a due process. It is not included in the basic core of human rights, but it illustrates splendidly how the rule of law operates. Due process is simultaneously a limit to power and a guarantee for the individual. For practical reasons of time and space, the right to due process used in this essay is taken from the Spanish Constitution. The choice of this text is due to the fact that its redaction was heavily influenced by the several human rights covenants existing at the moment of its enactment. Article 24.2 asserts that anyone has the right to a judge predetermined by law, the defence and assistance by a lawyer, to be informed of any charge against him, to a public process without unlawful delay and with all guarantees, to use any piece of evidence necessary for the defence, to not declare against oneself, to not confess guilt and to be innocent until proven guilty. The scope of the entitlement plainly reduces the government’s space in manoeuvring, and imposes a pro-active duty to demonstrate that someone is guilty. Consequently, “due process is designed in part to protect the innocent from punishment and prevent excessive punishment of the less guilty. But due process is also what gives legitimacy to trials and convictions”[7]. Under normal circumstances of a democracy running its usual course, due process reflects the respect for human rights and of a functioning democracy. It is true that it makes it harder to punish a criminal but it similarly permits the innocent to present their case fairly and to avoid an unwarranted sentence. Unfortunately, this presupposes a stringent and expanded interpretation of due process, something that can oddly enough affect negatively a society in transitional justice phase.

III. The conflictive nature of due process when applied during transitional justice.

Transitional justice refers to an extraordinary moment of any given society. This exceptionality is derived from the circumstance that the society is attempting to cut ties with the former regime so it can begin with a new liberal democratic society. It is backward-looking and forward-looking at the same time. It is a paradoxical situation where institutions are set up but are concurrently in a sui generis status. Take for instance the use of legal instruments which are according to Teitel

between the past and the future…between retrospective and prospective. Transitions imply paradigm shifts in the conception of justice; thus, law’s function is inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation[8].

However transformative legal instruments can be, not all are equally effective. Part of them can obstruct the restorative process. This inadequacy stems from the uniqueness of the period encompassing transitional justice. During this process a society is not only recovering from ordinary crimes, but from exceptional crimes as well. In the former state of affairs, a society was massively affected by gross violations of human rights. The state is frequently the main culprit as those committing and planning the wrongdoings are part of or are aided by the state. It could be a whole society – e.g. the Nazi Germany against the Jews – or one part of the society against other – e.g. Rwanda – or perhaps the suffering was inflicted mainly upon a minority – e.g. Muslims in Bosnia. What characterizes this situation is the active participation of a great segment of the fabric of the society in continuously abusing a relevant portion of the population. An involvement of this magnitude supersedes those legal responses that underline the rule of law in ordinary times. Equally, the other outcome is the presence of a whole social stratus being affected by the perpetrators. A massive crime generates massive suffering. It comes to no surprise that those who have endured exceptional pain (morally and physically) demand recognition of their suffering during transitional period: an acknowledgement of the negative experiences that disturbed their social condition during the former regime, as individuals but also as a collective[9]. Here enter the demands of justice. If there is no treatment of the gross violations committed during the former regime, there is no chance of reconciliation and the chance of moving forward because the wounds of the past haunt them. The exceptionality of the situation creates a requirement of a contextual justice especially elaborated during the transitional period. “What is deemed just is contingent and informed by prior injustice… legacies of injustice have a bearing on what is deemed transformative”[10]. In this context, the concept of justice shoulders a great importance because it directly leads to dealing with past injustices. As Stahn asserts, there is an intimate relationship between “restoration of justice and security in post-conflict situations”[11]. A failure in bridging the past atrocities with the establishment of a healthy society can lead to the reversal of the transitional justice, but by another collective. To bring justice is to choose one model depending on how backward or forward-looking it is: retributive, deterrent and restorative[12]. Irrespective to which model one leans to, there is a common attribute: prosecution of the perpetrators; normally through trials. And that is where due process comes into action. While it is true that there are other means of punishment, it has generally been understood as a necessary element of any transitional justice to process the prosecution of those responsible for egregious violation of human rights[13] bearing in mind the impact of an existing possibility of duty under international law to prosecute[14].

To begin with, prosecution of criminals through criminal law entails the assumption of individual, criminal liability. This is problematic. Under due process, anyone accused of wrongdoing must be proven guilty beyond certainty. That imposes an extra burden for instance in cases where the prosecuted formed part of the machinery of the state where the responsibility can be diluted except in case of top leadership. To punish them according to a strict understanding of due process could be equated to punishing under criminal law for political liability, eventually challenging the rule of law[15]. Equally, the evidences enough for proving an accused guilty are stringent. A lack of sufficient evidence along with the high threshold of the evidentiary requirements “of due process may make it not only generally more difficult to convict, but also particularly difficult to convict those who are most culpable”[16] because they were in a position to take advantage of the resources available, they could get rid of the evidences and because of their political position. By the same token, to make a veritable case against the perpetrator and demonstrating that he was guilty in taking part of the crime beyond reasonable doubt, is expensive[17]. Each trial requires time and resources to convincingly attribute the offence to someone that can be quite an issue in underdeveloped countries that are forced to spend their scarce resources on the trial of criminals while the victims of the atrocities are victimized for a second time as their basic needs are not fulfilled. Even more damaging, the scarceness of resources together with the lack of evidences and the requirements of due process force the prosecutors to be selective in their efforts. The mass character of the crimes does not help either. This puts the prosecutors in the dilemma against whom to press charges. The upshot is twofold: on the one hand, not all victims will be satisfied as not everyone who tortured, raped or murdered will be judged. On the other hand, the most culpable will not be targeted because those lower-level offenders are easier to prosecute under due process requisites[18]. In a similar stance, Kritz adds the political prism as he writes that “prosecution of every single participant in the planning, ordering or implementation of the atrocities in question – not to mention all those who collaborated with them – would be politically destabilizing, socially divisive, and logistically and economically untenable”[19]. The phenomena of “limited criminal sanction” come then to no surprise. This concept is espoused by Teitel, to whom this

constitutes compromised prosecution processes that do not necessarily culminate in full punishment…Depending on just how limited the process, investigations may or may not lead to indictments, adjudication, and conviction. Convictions are often followed by little or no punishment. In transition, the criminal sanction may be limited to an investigation establishing wrongdoing[20].

She ascribes this situation to the difficulties in subsuming systemic wrongdoings during the former regime in individual criminal liability. In other words, that the limited criminal liability is based on a thorough understanding of the complexities of crimes of a mass scale[21]. Although it is a valid assertion, the influence of due process in conjunction with the dire economic situation of a country in transitional justice also cannot be discarded.

Another inconvenience is the search of truth of past egregious violations. A trial’s primary role is in elucidating the defendant’s guilt. This is a direct consequence of due process demands of knowing under what charges one is being prosecuted. This restricts the story to the specific accusation brought up by the prosecutor. Truth then becomes a legal truth which covers only a small proportion of the narrative. Evidences that would aid in construing the story of past abuses are not deemed relevant if they are not related to the charges. They are discarded and not included in the discourse. Needless to say, this affects the victims as there is no space for expressing the abuses committed to them.

Last but not least, the turn to a legal response for former abuses has the drawback of the accused taking advantage of the process, and subverting further the right to due process[22].

IV. Conclusion

This essay noticeably exhibits the inconveniences of using a guarantee designed for ordinary times and essential in democracy as due process in extraordinary times and its inadequacy when coping with mass crimes where the state as a whole or a relevant part of the community has participated in their commission. If prosecution remains as one of the primary tools as a response in transitional justice, it is advocated a sui generis reading of due process. This is not tantamount to a complete disrespect of the human right, but an attempt to take victims into consideration. Based on Teitel’s, it is submitted that this distinctive reading does not endanger the foundations of the newly liberal democracy because, as its name suggests, transitional justice refers to a specific moment. A community is trapped between two regimes, thus the transitional period is by definition limited, which gives rise to a contextual notion of justice based on past grievances but with the purpose of remedying the victims[23].

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[1] M. Freeman and D. Djuckic, “Just Post Bellum and Transitional Justice” in C. Stahn & J.K. Kleffner (eds.), Just Post Bellum – Towards a Law of Transition from Conflict to Peace 213, 214 (2008).

[2] UN Doc. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary General, 4 (2004).

[3] Definition given by the International Center for Transitional Justice. Available at http://www.ictj.org/en/tj/ (last time checked on 20th October 2009).

[4] See S.W. Daniel Han, “Transitional Justice: When Justice Strikes Back-Case Studies of Delayed Justice in Argentina and South Korea”, 30 Hous. J. Int’l L. 653, who argues in favour of delayed transitional justice, giving priority first for the economic development of the country.

[5] P. Clark, “Establishing a Conceptual Framework: Six Keys Transitional Justice Themes” in P. Clark and Z.D. Kaufman (eds.), After Genocide – Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond 191, 191 (2008).

[6] Id., 195-204.

[7] M.J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice”, 15 Harv. Hum. Rts. J. 39, 49 (2002).

[8] R. Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, 106 Yale L.J. 2009, 2014 (1996-1997).

[9] F. Hadelmann, “Another Kind of Justice: Transitional Justice as Recognition”, 41 Cornell Int’l L.J. 675, 678-680 (2008).

[10] Teitel, op. cit., 2014.

[11] C. Stahn, “Justice Under Transitional Administration: Contours and Critique of a Paradigm”, 27 Hous. J. Int’l L. 311, 315 (2004-2005).

[12] See Clark, op. cit., 197-198.

[13] See R. Teitel, “Transitional Justice Genealogy”, 16 Harv. Hum. Rts. J. 69, 72-74 (2003).

[14] See D.F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime”, 100 Yale L.J. 2537 (1990-1991).

[15] Teitel, op. cit., 2038.

[16] Aukerman, op. cit., 51.

[17] Id. 52.

[18] Id. 61.

[19] N.J. Kritz, “Coming to Terms with Atrocities: A Review of Accountability for Mass Violations of Human Rights”, 59 L.& Cont. Prob. 127, 138-139 (1996).

[20] R. Teitel, “Transitional Rule of Law” in A. Czarnota, M. Krygier and W. Sadurski (eds.), Rethinking the Rule of Law after Communism 279, 281 (2005).

[21] Id. 282-283.

[22] Teitel, op. cit., 848.

[23] Teitel, op. cit., 2013-2014, 2019-2020.

Nothing new under the sun

Ya que Neoprogs se ha remodelado, creo que es una buena ocasión para celebrarlo con la entrada de otro post largo y aburrido. Espero participar más activamente en la dinámica.

I.

War has been a constant throughout history. It has been a recurring tool used by several actors in order to achieve power[1]. As Clausewitz famously stated, war “is a continuation of political intercourse with a mixture of other means”[2]. This circumstance has unsurprisingly provoked the constant necessity of tackling the phenomenon, whether disapprovingly or accepting it as a matter of life. Likewise, this permanence of war has allowed appreciating certain common traits. For Neff, these traits represent the “hallmarks of war” which has allowed the identification of a “body of legal ideas about war as such”[3]: collective and public character, against a foreign state, war as a rule-governed enterprise, and as marking off peace from war[4]. But these characteristics are a product of an empirical analysis of war not a product of a theoretical or legal systematization. Thus, the objective of the following paragraphs is to compare if these steady traits are present in the just war tradition and in the UN Charter.

The just war traditions

War as a collective enterprise. Even though the just war prescriptions are directed towards individuals, war is seen as a public institution. Not anyone could wage war against another, only certain people could do it. This requirement is known as the auctoritas principle. According to this principle, a political community can go to war “only if the decision has been made by the appropriate authorities, according to the proper process, and made public, notably to its own citizens and to the enemy state”[5]. Private individuals were not allowed to initiate a war, only those rulers with the appropriate competence could as they had superior rights[6]. Because the just war theorists believed in the inherently sociability of human beings, they considered the existence of government as an instrument which permits to a given collectivity to reach certain goals as crucial[7].

This emphasis on the public character of war is strengthened by the justa causa principle. Not any claim was valid for waging war, it could only be justified by claims of legal validity[8] and normally those were the “protection of innocents within its borders […] and […] any violation of its […] political sovereignty and territorial integrity”[9]. Accordingly, only claims affecting the community and its well-being were considered as a just cause. It is worth repeating, that even though the just war traditions were directed to individuals and to a single unitary unit encompassing a whole community, the two aforementioned principles required war to be a public and collective enterprise as only certain people entrusted with public duties could wage war and for public causes.

Against the “other”. A war always opposes two sides; it pits one’s demands against someone else’s. As stated by Neff, it has to be a foreign state or political entity, not any actor is included[10]. In these regards, just war traditions fall easily within this trait. Justa Causa is the most obvious case as the claims for going to war are of a political nature or as a response to violations upon a given community. Neff provides a good illustration with the war in defence of the Christian world, whereby two distinctive polities clashed as well as the reconquista where the Spanish Catholics waged war against the Muslims living in Spain at that time[11].

Law’s empire. Wars require rules. Despite the fact that war could be considered as an antagonist of law, because of its collective character the presence of rules is needed in ordering the phenomenon. In this sense, the just war traditions heavily regulated war, before, during and after. The very same just war traditions were designed to regulate when a community could go to war, the ius ad bellum. Equally, it states how to waged war, ius in bellum, which individuals could participate, which ones could and could not be considered objectives and even to which extent military force could be used; and although just war theorists focused mainly in when and how to manage war, it is possible also to find traces of just post bellum resolutions[12]. Whatever the deficiencies, it did regulate profusely war.

Peace/War. As shown by Neff, it is a recurrent feature from diverse societies to mark a division between peace and war[13]. Now, when applied to the just war traditions, it is harder to grasp such stark distinction between both spheres. In this framework, war is seen as law-enforcement tool[14]. War is used as a last resort instrument. Only when the previous mechanisms have proven ineffective, resorting to war is allowed[15]. This conception is derived from the very same notion of just war, which implies that only one side is acting ‘justly’ in order to correct the deviating behaviour of the other side, meaning that the basic bonds remain intact. Consequently, the same norms that apply during peace time are also applied during a conflict[16].

However, in my opinion it is true only to a certain extent. Maybe there is not a rigid barrier between times of peace and times of war, but the just war traditions’ attempts to regulate war also displays an internal recognition of the circumstances on which war is handled. When describing how to conduct it, it does establish a distinction between peace and war times. It introduces rules that do not apply during peace times. Thus, there is a set of rules, however small[17], that can only be applied during war times and that stop being in force when the war has ended. Even within the just war traditions, where the separation is the blurriest, there is a minimal distinction.

One Charter to rule them all

War as a collective enterprise. Undoubtedly, “war”[18] is undertaken as a collective enterprise. This is more evident in this case than within the just war traditions because the latter addressed first and foremost upon the individuals, even though it retained a collective character as war could only be waged by those with auctoritas. The UN Charter is the constitutive document of an international organization which is composed by states, who are subjects representing diverse polities. Furthermore, the main organ within the UN entrusted with the objective of maintaining international peace and security is the Security Council, which is not as representative as the General Assembly – it is composed by fifteen states – but is equally collective. Article 25 clearly establishes the main purpose of the SC which is the maintenance of international peace and security. Thus it is instructed to achieve that on behalf the international community. It is an international collective enterprise. This is confirmed by the fact that the Charter allows a right to self-defence not only individually but also collectively[19]. The security system enshrined by the UN Charter is primarily a collective effort.

Against the “other”. As with the just war traditions, the UN Charter confronts anything that goes against the maintenance of international peace and security. Primarily, it was conceived against states endangering international affairs, mainly through a literal interpretation of peace and security as an absence of war. But this has changed. Especially after the end of the cold war, the term has been expanded to include a positive conception of security and peace, meaning that not only the absence of war is enough but disarmament, decolonization, among others as well[20]. Consequently, it does not go alone against a state breaching the international peace and security; it goes against certain notions, as well as other political entities.

Law’s empire. The UN Charter tightly regulates the use of force as it is banned as a general rule and it is allowed in a few instances. Currently, the Security Council holds a quasi-monopoly over the use of force. According to Article 42 - after the SC has determined that there is a situation endangering the international peace and security - it can undertake any necessary action, including the use of force. States, on the contrary, can only resort to the use of force in case of self-defence, according to the (in)famous Article 51. Thus, the UN Charter regulates war but only partially, it is circumscribed to the ius in bellum, when to resort to war. This is different from the just war traditions which also regulate how to wage war. But that is because it is regulated heavily in a different set of norms: in international humanitarian law. The only exception is the law of neutrality[21].

Peace/War. The founding of the UN, and of what was established in the Charter, marked a return to some basic assumptions of the just war traditions. The most relevant feature was a renewed conception of the state of peace as the basic condition of international relations[22]. As Neff points out, the UN Charter rejected the basic assumptions of positivists from the nineteenth century who viewed war as a fact of life as states tried to compete with each other aggressively[23]. With peace being the normal condition of international affairs, any disturbance is seen as a breach in the usually pacific state of foreign affairs. As a result, the actions that the UN carries out are perceived as being law enforcement in nature, to restore the situation to the previous state of peace[24]. The logical effect based on that assumption is the lack of a proper distinction between times of peace and war. Similarly to the just war traditions whoever breaches the Charter is in the “unjust” side as the Charter describes exhaustively when to resort to war, and otherwise is a violation of the UN Charter and of the state’s obligations toward it. This means that the principles and purposes that overview the Charter remain on place. That is, that the Charter is still applied when there is an outbreak. The bonds and values enshrined on the Charter continue to exist; there is no appearance of a completely distinctive set of norms for when the use of force is used.

Now, this is true only to a certain extent. In most of the cases the line between peace and war will be blurred or non-existent, but there will be cases in which the presence of war will make both states distinctive. This does not imply that the UN Charter will stop being in force. Quite the contrary, it will continue to be applied. But as highlighted earlier, there is a set of norms, rules and principles that come into force when there is a war situation. In other words: international humanitarian law, because it embodies and assumes an objective conception of war[25]. That is to say, it comes into action when there is according to the articles a situation resembling war. This set of rules only functions intermittently and temporarily. Accordingly, there will be occasions in which there will be a distinction between both states, however minimal.

II.

The rise and fall of the state[26]

In the outlook of both situations, the differences between the “war as a state policy” versus “new wars”, due to change of circumstances, seem significant; in particular if the material aspects of both are compared. The crucial distinctive feature is the relevance of the state. In Neff’s account, the state is its pinnacle of strength and power. The nineteenth century embodies its splendour. In Kaldor’s description, the state still exists but is a ghost of its former self. Here, the state is unable or has lost the capacity to control its own territory. This can occur for many reasons: an ineffectual government ridden with corruption, mismanaged and under a great amount of pressure by the impact of globalization. Likewise, the inability to have an effective state is heightened by sectarian fights ravaging the infrastructure, towns and so forth. These contrasting situations greatly influenced – and still influence - the handling of war.

First, in the “war as a state policy”, war is conducted between states; interstate fight is the paradigmatic condition. This is in stark contrast with the “new wars”. The state disappears from the scene and it is overtaken by non-state actors. Even the state becomes one of the many factions battling in the arena. Now the war is an internal and transnational condition. As a result of this change of paradigm, the traits of war adjust in every aspect. The military army, with its centralized command, bureaucracy, professionalism and heavily armed, yield to scattered groups, where there is no formal hierarchy, where there are untrained and where being a combatant is only one of their many faces.

However, these superficial divergences can obscure the fact that both types of war are of the same nature but only quantitatively dissimilar. That human condition is difficult to modify. Take for instance the goals of war. As Neff explains the objectives during the “war as a state policy” was purely political. There was no room for other sorts of influences. The war was carried out on the basis of cold, calculated, and rationalized interests, as a means of maximizing their power. There was no special animosity against the other counterpart when pursuing the objectives. Compare this with the “new wars” as presented by Kaldor, where identity politics hover all over the roaring combats. Utilitarianism is substituted to national, ethnic or religious politics. It is not merely a quest for power, but equally a moral duty and a hatred for the “other”. These two images cannot depict a stark contrast between both, but it fails to exhibit the entire film. Already during the nineteenth century wars were waged for identity politics. It is the century of romanticism and nationalism. States increasingly resorted to war alongside policy reasons as a sense of national sentiment. This is reinforced by the fact that occasionally armies were aided by civilians who wanted the best for their motherland and fought remorselessly[27]. This group of people does not differ much from present-day combatants. The only real separation is that the goals are varied: not only the motherland but religious or ethnic causes are also at stake. But the peculiarity is the active participation of organized-crime groups that profit from war and for who war is not seen as a means for end, but as an end in itself. That is the most remarkable feature of these “new wars”.

Likewise, the presence of non-state actors already during the nineteenth century demonstrates that they are not a new phenomenon. What has changed is the intensity of their activity, and only in places where the state is weak enough so as to have a proper monopoly of violence over the territory. Another similarity is how they wage wars. While it is true that the tactics and the armaments employed in both sorts of wars are not equal, the results are similar. Even though there were attempts to regulate the exercise of war – and there were undoubtedly regulations concerning it – reality was messier. As with the “new wars”, the distinction between the public and private sphere was not as sharp as it should be as the way the armies waged war also affected greatly the civilians. Like with the identity groups that expel civilians different from them in order to gain control over the territory, the fact that the “idea of total war against populations was never thoroughly drained”[28] from that period meant that the whole population was held responsible during the war. The only difference between both types of wars was that the state was using this tactic mostly derived from policy and not for ideological reasons. It was not a mean and an end itself (yet). It was mostly a matter of degree. The greatest distinction is the existence of neutrality during the nineteenth century, and what fits within the framework of war as policy. If the war is waged for identity reasons, there is no space for neutrality because even if they are not interested in the fight, in the eyes of those groups combating they are wrong because of their identity and it marks them as enemy. Neutrality becomes outdated.

Overall, what distinguishes both eras is not that different. As has been mentioned, on the surface the distinctions look vast. A state and a guerrilla for example are worlds apart. One epitomizes a whole polity, the other maybe a fraction of a fraction of a group. But when handling war, the image is not apparent. It becomes a matter of gradation, of quantity. What stands out is that during the nineteenth century war was treated amorally in those occasions where ideological motives were not part of the decision-making process. War was one of the many options that a state could pursue in order to gain power. In the “new wars”, war is not only an option, but it is a means through which they can pursue their goals. War has become a moral duty, however deviated.

Back to basics?

To compare the just war traditions according to Neff with Kaldor’s cosmopolitanism seems like a futile exercise as they represent two different eras with nothing in common but a thirst for violence. Looking closer, however, there are elements that are similar. These similarities are more pronounced on an ontological plane. These are three specifically: the appeal to universalism, the law-enforcement approach to war and its offensive nature

What differentiates the just war traditions from subsequent frameworks dedicated to cope with war is that it is directed to individuals. As Neff writes, the strong natural-law influence in the just war traditions meant that the rules dealing with this issue addressed individuals, not states[29]. The same occurs with Kaldor’s approach. In her description, she argues in favour of a humanist universalist stance whereby the civil society is the central element in around which her argument revolves. However, it is not only directed to the individual, it goes beyond it and the state. It is a calling for civic values[30] that have to be spread by NGOs, collectives, international organizations, and so forth. It is an inclusive attitude. It could be seen as an update of the natural-law universalism from the Middle Ages[31].

The just war traditions considered peace as the given state of affairs. A violation of peace was seen as an exception that ought to be punished and solved. The corollary was the fact that the ties that bond the states together continued to subsist during the conflict. The commission of a crime was a rupture of peace and consequently it had to be restored[32]. This law enforcement mind-set blurred any distinction between peace and war as the same rules were applied before, during and after the conflict. Kaldor’s cosmopolitanism reflects the same but with different (secular) values[33]. A recurrent condition of these “new wars” is a brutalization of violence, aimed predominantly against civilians. These actions lead to massive violations of human rights which is the condition that ties the warrant parties. The request for a stronger response by the international community in order to avoid human rights violations, not only war crimes, presupposes a permanent state of peace in which human rights are respected and promoted[34].

Another interesting feature of the just war traditions was its offensive nature. They were undertaken to undo an unjust situation. They were never taken in self-defence, as it was considered egoist[35]. Cosmopolitanism requires a pro-active stance as well. It compels stopping whatever armed conflict threatens human rights, deploying peace enforcement operations, and the reconstruction of the state from bottom to top among other actions. As with the just war traditions, there is an unjust situation that must be put to an end.

These conceptual similarities do not fade away when comparing the specific characteristics that adorn the just war traditions with Kaldor’s cosmopolitanism. As emphasized by Neff, if a war was to be considered as just it had to fulfil the five criteria developed by the scholars: auctoritas, personae, res, justa causa, animus[36].

With regards to the authority, Kaldor put the onus over the international community, which has the right/obligation to act when human rights are violated. Certainly, the mention alone of the international community does not solve the conundrum, as it is vague enough and could include potentially everyone. There is no clarity in knowing who has the authority to decide. Nonetheless, she has confined the authority in the Security Council and if the organ is blocked or unable to proceed, she advocates certain rules that would allow third states to perform[37].

Cosmopolitanism seems mute over which people can participate during combats, but it can be identified if one reads closely. “New wars” are characterized by a confusion of the military and the society where civilians take arms but do not differentiate from other civilians. On the other hand, those who have to stop the mass atrocities are the professional armies of the states taking over the situation of those soldiers lent to the UN for peace enforcement operations.

Res would be the continuous violation of human rights, the casus belli. This would be accompanied with the just causa in which the legal claim is the obligation of states and international organization to prevent and to halt human rights violations[38].

Finally, a cosmopolitan outlook requires the existence of an animus, the rightful intention when acting. Those who participate in petering out the situation in places suffering “new wars” must do it because they want to uphold human rights and to reconstruct the state. If cosmopolitanism is a humanist approach, then the assistance is provided because those suffering are considered as equals.

III.

In light of the aforementioned, the just war doctrines more or less fit the hallmarks of war. The only clear divergence is in the peace/war distinction. A similar conclusion can be held regarding the UN Charter.

Kaldor’s “new wars” do not differ much from the “war as state policy” as described by Neff. The differences are quantitative more than qualitative. The main qualitative divergence is in the use of war as a means or as an end in itself according to Kaldor’s characterization.

Likewise, the cosmopolitan approach significantly resembles the just war traditions as it is similar ontologically and it does fulfil to a great extent the criteria that delineate a just war.

---

[1] H. Morgenthau, Politics among Nations 11 (1973, 5 ed.). Cited in K.N. Waltz, “The Origins of War in Neorealist Theory”, XVIII:4 J. Inter. H. 615, 616 (1988).

[2] As quoted in M. Sheehan, “The changing character of war” in (eds.) J. Baylis, S. Smith & P. Owens, The Globalization of World Politics 210, at 213 (2008, 4 ed.).

[3] S.C. Neff, War and the Law of Nations 15 (2005).

[4] Id. 15-29.

[5] B. Orend, War and International Justice: A Kantian Perspective 49 (2000) (Emphasis added).

[6] A.J. Bellamy, Just Wars – From Cicero to Iraq 39 (2006) and M. Taghi Karoubi, Just or Unjust War? 65 (2004).

[7] Id. 38.

[8] Neff, op. cit. 50.

[9] Orend, op. cit., 49.

[10] Neff, op. cit., 18.

[11] Neff, op. cit., 53, 56.

[12] See R.P. DiMeglio, “The Evolution of the Just War Tradition: Defining Just Post Bellum”, 186 Mil. L. Rev. 116 (2005) and Neff, op. cit., 66-68.

[13] Neff, op. cit., 26.

[14] Id. 57.

[15] Bellamy, op. cit., 38.

[16] Neff, op. cit. 57-58.

[17] Id. 65.

[18] Since the inception of the UN Charter, war is proscribed, literally and literally. As stated in Article 2.4., states shall refrain in their international relations from the threat or use of force. Consequently, from now on the Charter refers euphemistically to war as use of force.

[19] Neff, op. cit. 326.

[20] R. Wolfrum, “Article 1” in (ed.) B. Simma, The Charter of the United Nations: a commentary 37, 41 (2002, 2 ed.).

[21] See among others Article 25 UN Charter.

[22] Neff, op. cit., 316.

[23] Id.

[24] Id. 325.

[25] For the meaning of objective conception see Neff, op. cit., 172ff.

[26] The arguments drawn from Kaldor’s book New & Old Wars (2007, 2 ed.) are from chapters 3, 4 and 5. Similar case with Neff with chapters 5 and 6.

[27] Neff, op. cit., 206.

[28] Neff, op. cit., 204.

[29] Neff, op. cit., 56.

[30] Kaldor, op. cit., 187.

[31] As she states: “the rights of individuals supersede the rights of states, and that, therefore, international law that applies to individuals overrides the laws of war. In other words, jus in pace should not be suspended in wartime.” in M. Kaldor, “From Just War to Just Peace” in M. den Boer & J. de Wilde (eds.), The viability of human security 21 (2008).

[32] Neff, op. cit., 57-58.

[33] See Kaldor, op. cit., 21.

[34] Id.

[35] Neff, op. cit., 60-61.

[36] Neff, op. cit., 49-52.

[37] Kaldor, op. cit., 29.

[38] Kaldor, id., 21.

Don Alejandro

Es política de esta bitácora el no comentar nada en lo relativo a aspectos personales. Para lo que se propone - o proponía viendo el ritmo de actualizaciones - es innecesario relatar detalles que no afectan en lo más mínimo al contenido de las entradas. Sin embargo, hoy es una gran excepción.

Ayer falleció uno de los más ilustres publicistas españoles: Don Alejandro J. Rodríguez Carrión. Catedrático desde 1982 en la Facultad de Derecho de la Universidad de Málaga, fue uno de los referentes más importantes de la disciplina en lengua castellana. Siempre mordaz e ingenioso, fue uno de los mejores profesores de aquella facultad. Como a muchas otras personas, tuve la suerte de que me diera clases, no todo un curso pero si lo suficiente como para disfrutar de sus ocurrencias y de su deseo por enseñar y de transmitir su pasión por la disciplina. Hacía simple algo que en otras manos sería catastrófico. A él le agradezco una cosa: si no me lo hubiera encontrado no estaría donde me encuentro ahora. Él hizo que abriera los ojos ante una carrera que había desconocido totalmente, hizo que estudiar la carrera de derecho tuviera sentido, pues era el primer paso hacia algo fascinante y en completo cambio. Obviamente, no todo han sido luces, pero en una circunstancia como ésta es un sinsentido.

Este es mi pequeño homenaje a él.

The ICJ advisory jurisdiction: the "wall" case

 

The advisory jurisdiction is different from the contentious. The most relevant difference is that the Court – any - does not have to solve a problem between two parties. It has to give on opinion about a question. Nonetheless, it has been an option which has had more success in the international legal order.  The application of the advisory function has encountered more problems in the national sphere, the own nature of what is the function of the courts has impede its proper implementation[1]. But a reflection of those difficulties can be traced back in the ICJ. Despite using the advisory function, the Court has used the procedure rules of the contentious process, maintaining the jurisdictional nature of the Tribunal[2]. This can be showed in article 68 of the Court’s statute:

“In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable”.

But the own particularity of the international legal framework has allowed its development and, because of the Court, it has had an important impact. This is done in a two-step process. The first thing judges have to see is if they have jurisdiction for hearing the case and then, if that is the case, they have to analyze if there are not compelling reasons to not giving the opinion.

The two relevant articles are article 96 of the UN Charter, which allows the General Assembly or the Security Council to request an advisory opinion on any legal question, and to other organs of UN and specialized agencies only if this arise within the scope of their activities, and article 65.1 of the Statute which says that the Court may give an advisory opinion on any legal question.

The purpose of this assignment is to analyze the application of that jurisdiction, paying more attention to the legal nature of the question, in respect with the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[3] case.

 

2. JURISDICTION

 

In order to give an opinion the Court has to see if there is jurisdiction. There are two requisites: rationae personae, that is, that the organ who requested the opinion was competent to do so and rationae materiae, which means that the judicial organ can only answer those questions of legal character[4].

 

2.1. Rationae Personae

 

The General Assembly, which was the organ who requested the advisory opinion of the Court in Resolution ES-10/13, had the competence to ask for an opinion in the Wall case. As the ICJ stated in the Legality of the Threat or Use Nuclear Weapons case “the General Assembly has competence in any event to seize the Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to ‘any questions or any matters’ within the scope of the Charter”[5]. The Court would repeat the same in the Wall case, namely, that the construction of the wall in the Occupied Palestinian Territory was considered a threat to international peace and security, which is part of the General Assembly’s functions according to article 11 of the Charter[6]. The Court also concluded, despite the contentions, that it did not exceed its competence because of requiring an opinion and in spite of the fact that the Security Council was also treating the issue[7].

 

2.2. Rationae Materiae

 

Maybe the organ who submitted the question had the competence to do so, but the Court can only answer legal questions otherwise it will not have jurisdiction. It was expressly stated in Certain Expenses case that if “a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested”[8]. But the terms alone does not help to comprehend what is a legal question. According to Visscher is about any problem susceptible of receive an answer based in law[9], but let’s observe how the Court has treated the matter and in the Wall case.

 

2.2.1 Any legal question?

 

The Court will answer any legal question within the realm of International Law. That is a limitation in accordance with the limits of the system[10].

 

2.2.2 Only Law?

 

As we can observe, the expression any legal question can be interpreted in the sense that excludes any legal question entangled with facts. The problem was solved in the Namibia case. The Court established that “the contingency that there may be factual issues underlying the question posed does not alter its character as a ‘legal question’”[11]. So there is no need for a pure legal one[12].

 

2.2.3 The Abstract Nature of the Question

 

Due to the different nature of the advisory procedure, the Court has answered any type of question it did not matter if it was an abstract one or related to a factual situation[13]. This was one of the issues raised by Israel objecting the Court’s jurisdiction, which rejected it stating its own jurisprudence. The Court said that “to contend that it should not deal with a question couched in abstract terms is a ‘mere affirmation devoid of any justification’ and that ‘the Court may give an advisory opinion on any legal question, abstract or otherwise’”[14].

 

2.2.4 A Political Question

 

Another recurrent argument used by States against the Court’s jurisdiction is that the question posed is political, not a legal one and, therefore, the Court cannot treat it. As a jurisdictional organ and according to its statute can only solve those problems limited in the legal sphere. However, the Court has never rejected a request on these grounds. Quite the contrary, it expressed that “as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’ and to ‘deprive the Court of a competence expressly conferred on it by its Statute’”[15]. “Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task (…) an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by International Law”[16]. This would be the constant attitude of the Court about these allegations, including in the Wall.

We can say then that the Court “regards all questions submitted to it as ‘legal’ regardless of their political implications as long as the requested question can be answered by the application of legal rules”[17].

 

2.2.5 The Clarity of the Question

 

Another requirement about the legal question is that it has to be drafted with enough clarity. Article 65.2 of the Statute clearly states that the written request must contain an exact statement (en términos precisos in spanish) of the question. That is why one of the reasons laid down against the jurisdiction of the Court was as regards the lack of clarity thereof. Despite that the Court rejected the argument[18]. It has been a normal pattern of the jurisdictional organ to reformulate or to ascertain the relevant legal question. Despite the request being, in Judge Kooijmans’ words, “phrased in a way which can be called odd, to put it mildly”[19] there was no reason to dismiss the request in these grounds.

 

We can observe, therefore, that the Court applied correctly the requirements for having jurisdiction. The arguments against it were not strong enough in the light of the previous jurisprudence.

 

3. PROPRIETY REASONS

 

In the Court’s own words:

“When seized of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and whether, should the answer be affirmative, there is any reason why it should decline to exercise any such jurisdiction”[20].

That means that after analyzing its own jurisdiction the Court maybe has found that it has it, but that does not mean that there will be automatically a discussion of the request. As article 65.1 points out, the Court may give an opinion, so it leaves up to the organ whether to render a decision or not. Since saying in 1950, in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, that “Article 65.2 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such character as should lead it to decline to answer the request”[21], the Court has maintained the same approach.

As a result, the Court has argued that, because of its “responsibilities as the principal judicial organ of the United Nations (Article 92 of the Charter), the Court should in principle not decline to give an advisory opinion. Only due to compelling reasons could the Court disregard a request[22]. More difficult is to ascertain what those reasons are by which the Court would decide not to render an opinion because until now it has never rejected one. That has not stopped the Court to explain when would that occurred and to States to convince the jurisdictional organ not to continue.

 

3.1 The consent of the parties with regards to an advisory opinion related with the controversy

 

In order to explain it is unavoidable to refer to the Eastern Carelia case, where the PCIJ refused to give an advisory opinion. The relevant paragraph is the following:

“It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement”[23].

States have relied on that paragraph in order to avoid an opinion of the Courts for matter related to disputes between States. The clearest example is the Western Sahara case, and similar to the Wall case. Spain argued that because the Court would give its opinion about an issue that was contentious between Morocco, Mauritania and Spanish itself and because it did not consent to the Court hearing the case. The ICJ would reject the argument stating, quoting the Peace Treaties case that:

“The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it”[24].

And that the lack of consent could in some circumstances “constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion”, especially when the effect would be the circumventing of the consent of the State[25].

Based on that, the Court would reject Israel’s contention, considering that the judicial organ should assistance the General Assembly and that it was not circumventing Israel’s consent. But we could add that here the problem was also that the issue was not between two States, because Palestine is still not one, and therefore not a subject of International Law which would mean that there is a contentious issue as such, due to Palestine’s lack of subjectivity[26].

 

3.2 Lack of Information

 

In this case, the Court might not render an opinion because of the lack of information, which would impede to have all the facts and thus would lead to an invalid decision. This requirement is a subjective one; there is no standard definition that can help to dilucidate if there is enough information. Moreover, this has to be linked with the principle of equality. Because if all parties are not hear that would mean that the Court would only decide by the facts and arguments presented by one party.

This was an important factor in the Wall case. Israel, due to its refusal to collaborate, did not participate in the merits of the case. That is why it was argued that the Court should not continue, it would not have listened to all the parties. As with many other issues raised against the proceedings, the Court rejected it. It considered that it had enough information[27]. Judge Buergenthal was the only judge who considered that there was not enough information. He stated that the lack of information vitiated the Court’s findings on the merits[28].

This can be one of the most debatable issues of the case. We need to bear in mind that if one of the parties do not collaborate or do not participate on the process that would lead to a not very legitimate solution[29]. The fact that all the judges except one supported giving an advisory opinion and thus considering that there was enough information could have helped to avoid the undesirable consequence of having an opinion with a lack of legitimacy.

 

3.3. Usefulness

 

The function of the Court, through the advisory opinions, has been to guide the UN organs in several matters, to clarify a situation in order to take action. That is why it was argued that the Court should not discuss the merits because the General Assembly had already declared that the Wall was illegal and as a result there was no need for assistance. This was rejected on the grounds that it was up to the General Assembly to decide what to do with the findings; it was not the Court’s role to decide that[30]. This reasoning is also a debatable one. If we analyze to past opinions we can observe that the organ which requested the opinion did not prejudice beforehand the merits of the case. A clear example is the Certain Expenses case where the General Assembly requested the opinion of the Court about what was consider part of the budget according to article 17.2; it did not say what the interpretation of the precept was. It left it to the Court. Accordingly, it can be argued that it undermines the reasoning if the organ has decided beforehand about the issue.

 

3.4. Political Influence

 

Another argument usually used in order to convince the Court that it should its discretionary power and not rendering an opinion is that it released would impede a political solution; it would interfere with the discussions between the actors. In our case, the Court decided that it was not sufficient. It considered that because of the divergent views of the actors about the opinion it was not possible to really appreciate the impact of it[31].

 

4. CONCLUSION

 

Using Falk’s words we can say, with regards to jurisdiction, that “the advisory opinion seems on extremely solid ground, relying on past patterns of practice and widely accepted views of the institutional role of the ICJ within the United Nations system”[32]. Another conclusion is that the supposedly unfettered discretion of the Court deciding to render an opinion is not that clear. Article 65 is “significantly offset by other Charter articles that oblige the organs of the United Nations to cooperate with each other”[33].

---

[1] C.D. Esposito, La jurisdicción consultiva de la Corte Internacional de Justicia, at xxvii-xxx (1996).

[2] Id. 103 et seq.

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, at 136 (hereinafter Wall).

[4] M.M. Aljaghoub, The Advisory Function of the International Court of Justice 1946-2005, at 38 et seq. (2006); and Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1982, 333-334.

[5] Legality of the Threat or Use Nuclear Weapons, Advisory Opinion, ICJ Rep., 1996, at 22.

[6] Wall, 145.

[7] Ibid. 148-150.

[8] Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Rep. 1962, at 155.

[9] C. de Visscher, Teorías y realidades en Derecho Internacional Público 387 (1962).

[10] Esposito, 82 and note 90.

[11] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. 1971, at 27.

[12] I. Scobbie, “Issues of competence and procedure in the Wall advisory opinion” available at COMPLETE, at 13.

[13] See Esposito, 89-91 and  Aljaghoub, 61-63.

[14] Wall, 154.

[15] Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1973, at 172.

[16] Legality of the Threat or Use Nuclear Weapons, 234.

[17] Aljaghoub, 59.

[18] Wall, 153-154.

[19] COMPLETE

[20] Wall, 144.

[21] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, ICJ Rep. 1950, at 72.

[22] Wall, 44 and the jurisprudence cited.

[23] COMPLETE

[24] Western Sahara, Advisory Opinion, ICJ Rep. 1975, at 24.

[25] Ibid., 25.

[26] Scobbie, at 9.

[27] Wall, 160-162.

[28] Declaration of Judge Buergenthal, COMPLETE.

[29] Esposito, 100.

[30] Wall, 162-163.

[31] Ibid., 159-160.

[32] R.A. Falk, “Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall”, 99 AJIL 42, at 44 (2005).

[33] Aljaghoub, 67.

Is there (already) a right to democracy in international law? The case for the West

Democracy is a polysemous idea with a multifaceted contour; a powerful word which elicits heated discussions. Similar to self-determination, it has evolved from being a philosophical and political concept to also being a juridical one. Despite its elusiveness – what is in reality a good democracy? – it has been incorporated in the most relevant legal documents. The Spanish Constitution, for instance, states in article 1.1 that Spain is a “Estado social y democrático de Derecho”[1]. Similar references can be found in other texts, which reflect the evolving character of law as a social construction. This development is, however, circumscribed to the national sphere; the situation of democracy in the international legal order diverges completely. One main feature of international law is its liberalism, inextricably linked with the notion of sovereignty. Traditionally, states are not compelled to be ordained in a specific political system; it is a free choice. As the ICJ affirmed in its 1986 case about Military and Paramilitary Activities in Nicaragua:

 

“[A]dherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State.”[2]

 

Nevertheless, the changes occurred in the last decades have radically altered radically the panorama in which the ruling was delivered. These events have led some scholars to argue the appearance of a fledgling internationally customary norm by which there is a right to democracy. Now individuals could internationally assert a right to enjoy a democratic regime. Undoubtedly, this argument has been contested. The objective of this assignment is to observe if such a norm does already exist. It is submitted here that in general international law there is not yet a right to democratic governance; rather there is such an entitlement in the Western world as a special customary norm.

 

1. THE DEMOCRATIC ENTITLEMENT SCHOOL

 

The end of the Cold War marked the end of an era and the success of the West over the East, according to the triumphalists. The liberal democracy, with its multi-party elections, freedom of voting, expression and association concurrent with a free-market economy proved to be a better form of governance, or at least more durable. Indeed, it triggered major changes in the international sphere, and international law was not alien to the development. As underlined by Fox, “[i]nternational law, like all law, is essentially reactive in nature. Norms and institutions…arise not in a vacuum or as part of a coherent theoretical scheme, but in response to specific events.”[3] Indeed, for certain scholars one of the mayor alterations was the emergence of the right to democratic governance. The so-called “democratic entitlement” school - named after and led by Franck’s seminal article[4] - considers that it could be observed as a nascent norm by which citizens could now enjoy a right to democracy.

 

Their assertion was based fundamentally on three premises. First, the demise of the Soviet Union and the subsequent termination of a bipolar world ended the struggle for power. In other words, realpolitik stopped being the only driving force behind both superpowers, putting an end to disregarding the respect for human rights and democracy in favour of ideological affinity; at the same time permitted the termination of discussions over what was a real “democracy”. Second, the collapse caused the flourishing of democracies throughout the world that were committed to the model which just won the Cold War, which was holding free and fair elections as the liberal model. Moreover, states were willing to overthrow or punish those prepared to oust democratically elected leaders – e.g. Haiti. Last but not least, the entitlement could be inferred from a vast amount of “hard” and “soft” law proliferated since the inception of the UN. The Universal Declaration of Human Rights, the ICCPR, the ICESCR, the multiple General Assembly Resolutions or the 1999 Resolution of the Commission on the Human Rights entitled “Promotion of the Right to Democracy”[5] create, as the argument goes, a consistent normative body expressing this entitlement. The conjunction of these elements expresses both a sufficient practice and opinio juris to materialize as a customary norm as well as the shaping of a new paradigm. “[I]nternational law recognises only one legitimate way to ensure that a people’s rights to self-determination and free expression have been respected: through genuine and periodic elections.”[6] This last assertion is capital for the argument because it gives determinacy to the concept of democracy and “which makes its message clear”[7]. Otherwise it would not be possible to give right to something undefined; it would be a vacuous entitlement.

 

Indubitably, the consequences of the advent of such a norm in the international legal framework would have far-reaching upshots. The most obvious would be the prohibition upon nations to not depose their own democratic governments.[8] In other words, any action that would provoke a democratic reverse would be forbidden.[9] Furthermore, the rationale behind the idea is that democracy is the ultimate human rights as it is deemed the best guarantor of them. A democratic governance is more open to a compliance system of human rights by a teleological notion of democracy. Thus, democracy as such would become the central thrust of the international community and of the legal order. Subsequently, it would allow the use of force upon those states that could be depicted as undemocratic. Even more dangerous than an arbitrary use of force by some states upon others using as an excuse “a right to democratic governance”, is the fact that it divides the international legal order between two different types of regimes, which could have the potential to fracture one of the system’s mainstay. Predictably, the argument advanced by this school of thought has several inconveniences that can impair the transformation of the emergence of this rule into a proper, fully established norm.

 

2. THE LIMITS OF A GENERAL CUSTOMARY RIGHT TO DEMOCRACY

 

The main inconvenience, which goes against the effectiveness of it, is the exact content of democracy - despite Fox’s lengthy explanation justifying it.[10] Democracy is a contested concept, which sometimes provokes the spill-over of the implicit problems by its vagueness in the legal sphere. This lack of consensus[11] over minimum requirements hinders the efforts by the democratic entitlement school. Their emphasis on a Western based democratic model collides with other equally democratic types. As asserted by Mutua, the standard proposed by them is built in a series of core rights that “can only be realized and protected in a political society organized through the liberal democratic framework”[12]. Likewise, its admissibility could have the potentially devastating effect of silencing and concealing different democratic movements along with their knowledge.[13] By the same token, their minimalist approach towards democracy – a process-oriented version based on free and fair elections, freedom of expression, free market economy and so on – could drain its “emancipatory potential.”[14] It could sustain states that only pay a lip-service to democracy. Koskenniemi goes even a step further by simply denouncing the difficulties of grasping a universal rule of democracy and therefore proposing to drop any attempt of conceiving a common precept, proposing instead the adoption of a either mere modest account.[15] All these explanations only stress what has been stated at the beginning of the paragraph: the absence of conformity over a given definition is the crucial element, as will be shown later, in the existence of a right to democracy. Reservations about the obnoxious influence of the model proposed by the democratic entitlement school ignore how other equally contested - and Western - concepts have evolved. Self-determination, for instance, is a paradigmatic case; it was borne out of the French Revolution as a political entitlement. Despite its origin, it became normative; and it helped to emancipate all those countries that had been colonized. For this reason, Koskenniemi’s argument should be dismissed. Democracy, despite its problematic, is being used increasingly in more legal instruments. It is therefore unrealistic to simply ignore the treatment given to it, because it will not be the last appearance of a contested concept in the juridical sphere.

 

More relevant and which also undermines the case for a right to democratic governance is their “selective bias” with regards to justifying the existence of the norm. In Macdonald’s words – though he is talking about Franck’s article, the criticism can be also extended to his accolades:

 

“[I]n looking for the emergence and crystallisation of a norm into a rule of custom by means solely of an investigation into its legitimacy… here is a sense in which he assumes the existence of that which he seeks to demonstrate. An examination of whether a rule is more or less legitimate only makes sense if the existence of the rule is taken for granted, and it could thus be argued that [his] conclusions are undermined by a selective bias in the evidence he produces to support his propositions, occasioned by uncritical acceptance of a contestable premise.”[16]

 

This leads me to their use of sources for backing up their arguments. First, the employment of normative instruments like the covenants on human rights is done after a “wishful reading.”[17] They ignored the reservations made to them. The same can be argued with respect to the GA Resolutions. The organ can pass resolutions that contradict themselves. In one it can endorse Franck’s proposal and in other can state that the diversity of states impedes the application of a unique formula, and both resolutions accruing similar supports.[18] Indeed, if we combine them with the declarations issued by several states-representatives – especially from Asia – claiming the difference of values, it undermines the existence of sufficient opinio juris coming from the international community. A similar obstacle is encountered respecting the practice. Here, Carothers claims, despite the fact that they were made long ago, that the augment of the number of democracies all over the world was overstated because it was mainly a Western phenomenon remain as true as before.[19] After the dramatic increase of the 1990s, the tide of democratization has remained stable even with some setbacks. Pakistan can be an illustrative case of lack of normative force behind the entitlement to democratic governance. Despite the coup d’etat, Musharraf remained as Head of State for almost nine years. The (political) complains about his authoritarian rule was washed away after September 11. The US decided that it needed his help more against the Taliban, than pressuring him for becoming a democracy. Only after political problems, he abandoned power, not before. The attitude of the US in this case is exemplary of a broader trend. In short, the practice is wildly inconsistent.

 

From the conjunction of all these reflections can be inferred that the democratic entitlement is still a lege ferenda right, there is not enough proof of the establishment of a general customary rule. After almost twenty years since Franck’s article, the emerging right to democratic governance persists as an emerging right, or as Petersen argues as “a right to the emergence of democratic governance”[20]. How ironic to end with fashionable sophistication after so many years of discussing the topic with a similar idea already advanced by Steiner more than a decade ago.[21] Nonetheless, that cannot obscure the present importance of democracy in the international legal grammar. As Crawford notes, “[r]eferences to democracy…are entering into the justification of legal decision-making in a new way.”[22] But the lack of a general customary rule does not automatically entail the dismissal of the existence of such a norm in a different plane.

 

3. THE CASE FOR THE WEST

 

As a general rule, customary law is of universal character, binding all states regardless of their participation in its elaboration. Occasionally, as an exception, the emerging law can arise affecting only certain states. This divergence is labelled as a special or local customary law “which [by definition] are applicable only within a defined group of States.”[23] The ICJ admitted the possibility of its reality in the Asylum case[24]. Consequently, it can be argued that there is a special customary norm within the Western world by which citizens have a right to democratic governance. The problems encountered at the universal level are partially the very same that confirm the existence of the entitlement at a lower level.

 

On the one hand, the competing definitions hovering around the concept of democracy disappear once the focus is directed towards the Western world. In other words, there is a constant consensus of what has to be a democracy, and which is the one furthered by the democratic entitlement school. A procedural version which emphasizes the relevance of freedom of expression and association, the celebration of free and fair multi-party elections along with a free market system is rather the norm and what is accepted as democracy than an exception. On the other hand, there is a constant practice and opinio juris over the existence of the rule by the people. An illustrative example is the European Union, which makes direct references to democracy, even stating in the Treaty of Lisbon that the basic form of democracy is the representative; that is the process-oriented definition[25]. Moreover, this is not limited to a European phenomenon. The failed 2002 coup d’etat steered to oust Hugo Chávez from the Venezuelan Presidency displays how entrenched  the idea of democracy is nowadays within the West and that any change of government has to be done by means of ballots and not through illegitimate methods anymore. To put it briefly, there is the evidence of a regional or special customary rule. Here practice, in particular after the Cold War, has been consistent, states do really have the belief to be legally bound to a norm stating that individuals have a right to democracy, and there is a clear determinacy of the content of such an entitlement.

 

4. CONCLUSION

 

International law as it stands is the consequence of social encounters which as a result mirrors the community directed to regulate. The lack of agreement on the content of democracy, and subsequently over the right to democracy, reflects the situation of the international community. Therefore there is not yet a general customary norm expressing a right to democratic governance. However, the cultural and political homogeneity of the West produces the opposite: the reality of the entitlement.

---

[1] Emphasis added.

[2] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 1986, ICJ Reports 14, at 133.

[3] Fox, G., “Election Monitoring: The International Legal Setting”, 19 Wis. Int’l L. J. 295, 295 (2000-2001).

[4] Franck, T., “The Emerging Right to Democratic Governance”, 86 AJIL 47 (1992).

[5] Com. Human Rights, Res 1999/57, 27th April 1999.

[6] Macdonald, E., “International Law, Democratic Governance and September the 11^th”, 3 GLJ 9 (2002).

[7] See Franck, op. cit., 56ff.

[8] D’Amato, A., “Human Rights as Part of Customary International Law: A Plea for Change of Paradigms”, 25 Ga. J. Int'l & Comp. L. 47, 91 (1995-1996).

[9] Petersen, N., “The Principle of Democratic Teleology in International Law”, 34 Brook. J. Int’l L 35, 81 (2008).

[10] Fox, G., “The Right to Political Participation in International Law”, 17 Yale J. Int’l L. 539 (1992).

[11] Whitehead, L., Democratization: Theory and Experience 14 (2002).

[12] Mutua, M., “The Ideology of Human Rights”, 36 Va. J. Int’l L. 589, 594 n. 12 (1995-1996).

[13] Otto, D., “Challenging the ‘New World Order’: International Law, Global Democracy and the Possibilities for Women”, 3 Transnat’l L. & Contemp. Probs. 371, 384 (1993)

[14] Marks, S., “The ‘Emerging Norm': Conceptualizing ‘Democratic Governance'”, 91 ASIL Proceedings 372, 376 (1997).

[15] Koskenniemi, M. “Intolerant Democracies”: A Reaction”, 37 Harv. Int’l L. J. 231, 235 (1996).

[16] Macdonald, op. cit., par. 7.

[17] Roth, B., Governmental Illegitimacy in International Law 231 (1999).

[18] Fox, G. & Roth, B, “Introduction: The Spread of Liberal Democracy and its Implications for International Law", in Fox & Roth (eds.) Democratic Governance and International Law 1, 3 (2000); and Macdonald, op. cit., par. 8.

[19] Carothers, T., “Empirical Perspectives on the Emerging Norm of Democracy in International Law”, 86 ASIL Proceedings 261 (1992).

[20] Petersen, op. cit., 84.

[21] Steiner, H., “Political Participation as a Human Right”, 1 Harv. Hum. Rts Y.B. 77, 129ff (1988).

[22] Crawford, J., “Democracy and the Body of International Law", in Fox and Roth (eds.), op. cit., 91, at 102 (2000).

[23] Thirlway, H., “The Sources of International Law”, in Evans, M. (ed.), International Law (2^nd ed.) 115, at 125 (2006).

[24] See Asylum Case (Colombia v. Peru), Judgment 1950, ICJ Rep. 266, at 276.

[25] Treaty of Lisbon, EU Doc. 2007/C 306/01, Article 1.

Abkhazia and South Ossetia as States: a factual fiction?

En homenaje a Citoyen, yo también voy a poner mis papers y tonteridas varias en sustitucion de entradas normales, además de reincorporarme a la red. Perdonad el inglés, by the way:

1. INTRODUCTION

The signing of the Decrees by Russian President Medvedev whereby he recognized both Abkhazia and South Ossetia as States was the climax of a turbulent summer. Through this assignment we are going to try to analyze the assertion. For that purpose, we will have to study first the concept of statehood and its main characteristics, whether self-determination plays a role in this situation, end with recognition and the inevitable conclusion.

2. STATEHOOD

States are the core elements of International Law. Despite that, there is no definition of what they are, not even in legal instruments[1]. This problem may have occurred “because the question normally arises only in the borderline cases, where a new entity has emerged bearing some but not all characteristics of statehood”[2]. However, there are some elements in order to find out whether an entity is a State, drawn upon the practice and the doctrine. For that, we have to read the formulation laid down in Article I of the Montevideo Convention on the Rights and Duties of States, 1933, which has become “the best known formulation of the basic criteria of statehood”[3], and subsequently a norm of customary law[4], not the Article itself but the elements. According to the precept we can consider that an entity is a State when it has a) permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other States.

Behind those requirements underlies the principle of effectiveness; they are trying to guarantee that the entity can act effectively[5].

2.1.A Permanent Population

We can define the population as the group of people that permanently inhabit the territory of a State and they are generally related to it by the nationality link[6]. As regards to the requirement of permanent, we can say that it does not mean that they have to be within the State all the time. It is enough to stay for a period of time[7]. It also does not relevant how much people leave.

2.2.A Defined Territory

The territory is the spatial space where the state organization exercises its own authority with fullness, excluding any State trying to claim those same powers[8]. As with the population, there is not a minimum required area for it to be considered as a State. Also, the State does not have to precise exactly limits its boundaries precisely. As the ICJ ruled in the North Sea Continental Shelf cases “[t]here is…no rule that the land frontiers of a State must be fully delimited and defined, and often…they are not”[9].

2.3.A Government

While the other two criteria can be measured with objectivity, this is the hardest to gauge and the most important; to have a Government is central for the acquirement of the quality of State. In other words, the fact that there is an effective Government means that there is a population and a territory to govern[10]. In order to achieve this criterion it is not necessary to have a specific form of government. This was confirmed by the ICJ in the Western Sahara case, which stated that there was not any in International Law which “requires the structure of a State to follow any particular pattern”[11]. That is why most scholars, and the practice has shown, linked the existence of a Government with effectivité, which can be translated as the ability of the State to enjoy “the habitual obedience of the bulk of the population”[12] and to carry out with normality the state functions (internal effectiveness) and being able to act and interact in the legal order on behalf the entity (external effectiveness)[13].

Nonetheless, if we take into account the practice of States we can perceive that effectivité is not as absolute as it may sound. The practice shows us that “the requirement of ‘government’ is less stringent than has been thought” and the right and exercise of the authority is important, not only his actual effectiveness[14].

2.4.Capacity To Enter Into Relations With Other States

This is the least useful of the four criteria used by the Montevideo Convention. As it has been expressed, this requirement is a consequence of the existence of an independent Government, because it only has the capacity to enter into relations with other states in case when there is an effective authority capable and able to interact in the international order[15].

2.5.Independence

Due to the insufficiencies and the criticisms poured over the Montevideo Convention, other authors have tried to evaluate other requirements which can be essential to the concept of statehood. Even though there are various, the most important and with more impact in the practice has been the criterion of independence[16].

For many, the independence of the State is the decisive factor[17], which means that the authority which is representing an entity can act and function independently “of that of any other State”[18]. While it is difficult to measure how much is a State independent, we could assert that would include “the exercise of substantial governmental authority with respect to some territory and people” and “the absence of subjection to the authority of another State or States”[19]. That is the reason behind the non-recognition of Manchukuo, because it was an artificial State, a ‘puppet-State’.

2.6.Consequences

Once an entity has acquired de facto the criteria explained above, independently by which way it was created, we can assert that it exists as a State. This does not signify that the entity will become part of the international legal order, as the practice has shown us. For it to be fully accepted it has to be created legally and/or to be recognized. That is why it is necessary to give a look to the concept of self-determination and the institution of recognition[20].

3. SELF-DETERMINATION

Due to the constant efforts throughout the United Nations of the countries borne from colonization, self-determination was converted in a legal principle, though in a narrow sense. If we combine the articles from the Charter[21] with GA Resolutions 1514[22], 1541[23], 2625[24], Article 2 of the International Covenant on Political and Civil Rights[25], and the ICJ rulings in the Western Sahara[26] and East Timor[27] cases we can observe that the right of self-determination has been limited to those regions that were under the dominance of the Western countries[28].

In spite of that, there have been intentions on giving a broader sense to the legal notion, attempting to extend the right beyond decolonization. Some scholars have argued that behind the notion of self-determination any people can do it. In that sense, they talk about a double dimension of the idea: internal and external self-determination, which allows it in extreme circumstances to separate from a State, the so-called “remedial secession”[29]. Unfortunately, the practice of the States and the current state of the law demonstrates us that there is not yet such a broad self-determination; it has remained in the decolonization sphere, which means that beyond that sphere there is no right to self-determination, that is, to secede.

Said that, we need to stress that there is no rule in International Law which prohibits secession per se[30] - which is quite different to not having a right -, but the rules discourage such actions. The uti possidetis and the respect to the territorial integrity principles remain strong[31]. The success of an entity in seceding from the parent State is based on being recognized by other States. For that reason, we need to look at that institution.

4. RECOGNITION

Recognition is the action by which States consider that an entity has met all the requirements of statehood and has recognized it as such, and it is by his nature an act of political discretion. There are two main strands: the constitutive theory, which says that a State becomes one only until other States do so (status-creating) and the declaratory theory, which asserts that a State is one if it meets all the requirements (status-confirming)[32]. Both theories have proved wrong, as “life proves to be stronger than doctrine”[33]. At the moment we could say that recognition has a powerful effectiveness effect: maybe an entity can be a State, but if the other States do not recognized it, such an entity will not be able to function with efficacy in the international realm, despite being a State.

As Carrillo Salcedo pointed out, the institution of recognition has a powerful leverage. If many States recognize an entity as a State, that reinforces the political and juridical reality of it; “in other words, the recognition by the other States is not a necessary condition for the existence of the new State, but it does consolidate its international subjectivity and its insertion in the international community, even to those States who have not recognized it”[34]. That signifies that the approach of the States has been as a “peer-review” process, in the sense that they are the only ones who admit if the new candidate can enter the club[35].

Kosovo is a useful example: according to what we have seen, the secession of the country was illegal because it did not have the right to self-determination. However, the way it was recognized gave it the legitimacy it lacked legally.

5. CASE STUDY

According to what we have explained we could argue that neither Abkhazia nor South Ossetia have a right to self-determination or to secede from Georgia. However, that does not impede that they could not become States if they meet the criteria listed above. Both entities have a permanent population, a defined territory and even governments enough strong for maintaining the order. Moreover, both regions have been de facto independent from Georgia since the 1990s.

Nevertheless, they failed in the most important criterion: independence. As has been widely reported, both regions have been under the presence of Russian forces even before the outbreak of last summer[36], and they have Russian passports apart from economic aid they receive[37]. What is more evident of a lack independence is the fact that Abkhazia requested the Russians to represent its interests abroad[38] and South Ossetia wants to unify with North Ossetia and does not mind being part of Russia if that is the case[39]. All those facts are very clarifying: they cannot act and function independently from other State. Despite the fact that both entities “seeks to separate itself from the State to which it belongs” they do not seek to “create a new State”[40] up to the moment. Even recognition will not be enough, because there have been few who do recognize them and they do not have enough force to overcome the illegality of the situation and does not help to enter into relations with other States.

Even though every situation has its particular traits, there is a situation similar to this: the Turkish Republic of Northern Cyprus. It is true that the events that led to the Cyprus conflict differ from the once that occurred this summer, but the outcome was similar. The Republic has survived due to the support and protection of Turkey, as it looks like in Abkhazia and South Ossetia.

Bangladesh could be also helpful in this case. We could argue that the help from Russia, like the Indian one in the 1970s, has been crucial to definitely separate the two regions from Georgia, which was trying to regain the control there.

6. CONCLUSION

After reviewing and evaluating the requirements that an entity needs to be qualified as a State, we can assert that neither Abkhazia nor South Ossetia can be considered such. However, politics can always surprise.

---

[1] B. Vukas, ‘States, Peoples and Minorities’, 231 RCADI 263, at 280 (1991-VI); M. Diez de Velasco, Instituciones de Derecho Internacional Público 273 (2007); and J. Crawford, The Creation of States in International Law 31 (2006). For some definitions see T.D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, 37 CJTL 403, at 409-410 (1999).

[2] See Crawford, supra note 1, at 40.

[3] Id., at 45.

[4] B. Vukas, supra note 1, at 281 and M. Schoiswohl, Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes in International Law: The Case of ‘Somaliland’ – The Resurrection of Somaliland Against All International ‘Odds’: State Collapse, Secession, Non-Recognition and Human Rights, at 12, n.29 (2004).

[5] J. Crawford, ‘The Criteria for Statehood in International Law’, 48 BYIL 93, at 111 (1976-1977).

[6] Diez de Velasco, supra note 1, at 274.

[7] Schoiswohl, supra note 4, at 13.

[8] Diez de Velasco, supra note 1, at 274.

[9] North Sea Continental Shelf, (Germany v. Denmark/ Netherlands), Judgement, 20 February, 1969 ICJ Rep. 3, at 32, par. 46.

[10] Crawford, supra note 1, at 55-56.

[11] Western Sahara, Advisory Opinion, 16 October, 1975 ICJ Rep. 3, at 43, par. 63.

[12] H. Lauterpacht, Recognition in International Law 28 (1947).

[13] Schoiswohl, supra note 4, at 14-15; Vukas, supra note 1, at 288 et seq.

[14] Crawford, supra note 1, at 57. It is also interesting to observe that there were cases where the effectiveness of an authority was insufficient to back the statehood, see I. Brownlie, Principles of Public International Law 71 (2006).

[15] See Crawford, supra note 1, at 61; Crawford, supra note 4, at 119; Brownlie, supra note 14, at 71; Schoiswohl, supra note 4, at 17.

[16] See Grant, supra note 1, at 438 et seq.

[17] See Brownlie, supra note 14, at 71, note 16 and Schoiswohl, supra note 4, at 17, n.60.

[18] Lauterpacht, supra note 12, at 26.

[19] Crawford, supra note 1, at 66.

[20] For a thorough account of the relationship between legality and statehood see Crawford, supra note 1, 97ss. See also D. Raic, Statehood and the Law of Self-Determination 153 (2002).

[21] Art. 1.2, 55, 73, and 76.b.

[22] UN Doc. A/RES/1514 (XV) of 14 December 1960.

[23] UN Doc. A/RES/1541 (XV) of 15 December 1960.

[24] UN Doc. A/RES/2625 (XXV) of 24 October 1970.

[25] UN Doc. A/RES/2200A (XXI) of 16 December 1966.

[26] Supra note 11.

[27] East Timor, (Portugal v. Australia), Judgment, 30 June, 1995 ICJ Rep. 2, at 102, par. 29.

[28] See D. F. Orentlicher, ‘Separation Anxiety: International Responses to Ethno-Separatist Claims’, 23 Yale Journal of International Law 1, at 42 (1998); Schoiswohl, supra note 4, at 77-78; see also J. Crawford, ‘State Practice and International Law in Relation to Secession’, 69 BYIL 85, at 113 (1998); and A. Cassese, Self-Determination of People: a legal reappraisal 33 et seq. and 92 et seq (1995).

[29] See C. Tomuschat, ‘Secession and self-determination’, in M.G. Kohen (Ed.), Secession: International Law Perspectives, 23 at 38 (2006).

[30] Id., at 31 and J. Dugard and D. Raic, ‘The role of recognition in the law and practice of secession’, in Kohen, supra note 22, 94 at 102.

[31] See M. N. Shaw, ‘The Heritage of States: The Principle of Uti Possidetis Juris Today’, 67 BYIL 75 (1996); see also Crawford, supra note 21, at 85 et seq.

[32] S. Talmon, ‘The Constitutive versus the Declaratory Theory of Recognition: Tertium non Datur?’, 75 BYIL 101, at 101 (2004).

[33] N. Schrijver, ‘Can the Cause of Human Rights Justify Breaking Up a State? Reflections on Secession and the Ban on the Use of Force’, in K. Arts & P. Mihyo (Eds.), Responding to the Human Rights Deficit – Essays in Honour of Bas de Gaay Fortman, 49 at 51 (2003); Also I. Brownlie, ‘Recognition in Theory and Practice’, 53 BYIL 197 (1983).

[34] J.A. Carrillo Salcedo, Curso de derecho internacional público: introducción a su estructura, dinámica y funciones 47 (1991). (Translation by us)

[35] O.Ch. Okafor, Re-Defining Legitimate Statehood – International Law and State Fragmentation in Africa 55 (2000).

[36] ‘From frozen to boiling’, The Economist, 17 April 2008, (http://www.economist.com/world/europe/displaystory.cfm?story_id=11043570) (Last seen 21 Sept.)

[37] ‘If Kosovo goes free’, The Economist, 29 November 2007, (httphttp://www.economist.com/world/europe/displaystory.cfm?story_id=10225052) (Last seen 21 Sept.)

[38] T. Halpin, ‘Kremlin announces that South Ossetia will join ‘one united Russia state’, The Times, 30 August 2008, (http://www.timesonline.co.uk/tol/news/world/europe/article4635843.ece) (Last seen 21 Sept.)

[39] See supra note 37.

[40] See Crawford, supra note 24, at 85.

sobre Naciones Unidas

Me encanta leer cosas como esta:

The Economist, March 15th-21st 2008, p. 71:

"The oddity in hindsight is that most of the malefactors seem to have been businessmen, not members of the UN bureaucracy, which many American congressmen denounced as a nest of corruption. So far only two UN officials have been charged with oil-for-food offences - Mr Yakovlev, and Benon Sevan, who ran the programme. Charged with taking nearly $160.000 in bribes, he has fled to his native Cyprus. Arguably, the real culprits at the UN were not its officials but the Security Council, whose five permanent members invented a scheme that was wide open to abuse but who failed to impose the necessary safeguards."

Dedicado con cariño a todos aquellos amigos de las Naciones Unidas que de manera torticera y/o por desconocimiento le echan la culpa de todos los males del planeta y del más allá.

Para aquellos momentos intempestivos

un repaso a la política exterior.

Ya que parece ser se acercan elecciones en este nuestro país, resulta siempre interesante abordar cómo ha sido la legislatura y especificamente, por la temática de este blog, la política exterior desarrollada por el actual gobierno. Aunque en casi todas las elecciones - por no decir todas - la actuación allende nuestras fronteras siempre queda excluida, considerada por parte de los electores como una algo irrelevante a la hora de decidir el voto; desde aquí, se quiere resaltar lo importante que es en la actualidad el desarrollo de una política que no se abstraiga demasiado de los temas nacionales. Cuando nos encontramos en una constante mundialización, la relación con terceros es, si cabe, primordial.

Se puede decir que en lineas generales la actuación de este gobierno es mediocre. Un rasgo característico ha sido la indefinición más allá de ciertas ideas generales que no aportan nada al desempeño concreto de las funciones en el ámbito anterior. Esta vaguedad hay que reprocharselo a Zapatero, su escaso interés ha situado a España en territorio de nadie. Mientras que al menos el anterior Presidente tenía las ideas claras, aunque sus argumentos y acciones fueran equivocadas, lo que redundaba en saber a qué atenernos, con este gobierno a veces resulta arduo adivinar sus intenciones. Es por ello, que este post va a intentar evaluar - de manera subjetiva - alguna de las cuestiones suscitadas en esta legislatura:

1) Nefasto Ministro de Asuntos Exteriores. La elección de Moratinos ha mostrado ser desacertada, si bien, en su descargo hay que mencionar dos circunstancias: a) el puesto parece gafado, Moratinos no es el primero que demuestra ineptitud en su puesto, Ana Palacios y Josep "medoblocomounbambú" Piqué tampoco fueron mejores que lo hecho por el Ministro b) quién dicta la política exterior es el Presidente del Gobierno. Por tanto, es él quién decide qué hacer o qué políticas a realizar, lo que ha perjudicado en el margen de maniobra de Moratinos, pues tenía que someterse a sus directrices.

No obstante, eso no quita que su manejo de los problemas, sus salidas de tonos y su perceptible incapacidad para hacerse notar, fuera o no fuera cierto, le han convertido en un Ministro endeble. No merece continuar en la próxima legislatura en el cargo.

2) Oportunidad desaprovechada en Europa. Aunque con la llegada de Merkel y Sarkozy, más la salida de Tony Blair - lo digo por ser más que nada un lame duck - ha permitido que se vuelva a, por lo menos, tener una idea de que hacer o como hacer avancer el proyecto europeo, hubo un momento en el cual Zapatero tendría que haber liderado a la Unión y sacarla del atolladero en el que estaba sumida. En vez de actuar, se ocultó, observando a ver que pasaba y sin una noción clara de hacia donde ir. Si se le suma a todo eso su desinterés por el exterior nos encontramos conque España influye menos de lo que debería.

3) El magreb. Sólo me voy a referir a una cosa: el Sahara Occidental. Como ya hizo González - Aznar sólo apoyó al Frente por molestar a Marruecos, más que por convicción - Zapatero ha ido suscribiendo los argumentos del país ¿alahui?.

Hasta aquí los debe más reseñables. Latinoamérica está más o menos igual y África nunca ha sido una prioridad para los sucesivos gobiernos españoles.

No obstante, no todo ha sido negativo, ha habido actuaciones positivas que quiero apuntar:

1) La retirada de Iraq. Puede que las formas fueran precipitadas, pero en conjunto, lo hecho fue lo que convenía hacer. Además, lo prometió durante la campaña electoral, junto con que tenía el apoyo mayoritario de la población. No se le puede reprochar.

2) Aunque no es santo de mi devoción ésta, creo que conviene resaltarla: la Alianza de las Civilizaciones. En general, es una chorrada, lleno de palabras bonitas, sin actuaciones concretas, pero una cosa tengo clara, sólo con la fuerza no se va a ningún lado.

sorpresas de los países serios

Titular de una noticia:

"Inequality law may close (...) firms"

Así a bote pronto se puede pensar que estamos ante una noticia sobre España y la Ley de Igualdad, y que en el exterior se han dado cuenta de la barbaridad que va a hacer el Presidente Zapatero en pos de la igualdad, metiendo sus zarpas en el sacrosanto mercado libre y demostrando una vez más nuestro Presidente su sectarismo y deficiencias intelectuales. Sin embargo, el titular se refiere a otro Estado: Noruega.

Pues sí, en el año 2003 el país de los salmones y el petroleo promulgó una Ley que requería que al menos el 40% de los sitios de una junta directiva fueran a parar a manos de las mujeres. Y a la vista de los resultados a funcionado, mientras que en 2001 sólo el 6% de los puestos eran mujeres, en la actualidad alcanza el 37%, convirtiendo a Noruega en el país con mayor proporción de mujeres en los consejos. Suecia viene la segunda con el 19%.

Otro dato sorprendente es que la promotora de la Ley no fué una feminista bollera con ansias de destruir el capitalismo sino por la secretaria de industria y comercio del partido Conservador, la señora Ansgar Gabrielsen. Según la susodicha la razón por la que insistió en la Ley radicaba en que:

"I could not see why, after 25-30 years of having an equal ratio of women and men in universities and with having so many educated women with experience, there were so few of them on boards".

Además parte de la desigualdad no radicaba en la sabia mano invisible o del panadero codicioso, al contrario, ella

"saw how board members were picked: they come from the same small circle of people. They go hunting and fishing together. They're buddies".

En atención a tales circunstancias se aprobó la ley y es posible que las compañias que no cumplan serán cerradas de acuerdo con las sanciones previstas en el texto jurídico.

Sin duda el ejemplo de Noruega ha podido servir de modelo de referencia para el actual Gobierno, asimismo, nos sirve de ejemplo para actuar en circunstancias semejantes. Aunque personalmente sigo dudando de la eficacia de la ley aprobada en España, quiero poner de relieve como en otros países que no están llenos de progres irredentos, cobardes, que no paran de fumar porro y lo peor de todo pacifistas¡¡ también realizan actuaciones parecidas, y con éxito como se puede comprobar.