US bombs Pakistan

[KrazyHorse]

Originally posted by Lawrence of Arabia
What you are now talkin about is Self help (takin military action inside another country who is in breach of law) [lets assume for a moment that pakistan is in breach, but I dont believe so]

In UK v. Albania, the ICJ ruled that even if Albania was in breach, the UK did not have unilateral right to go into their territory. Therefore, self help is illegal under international law.

Who's talking about a breach of int'l law?

We're talking about an act of war by the State of Pakistan against a dozen foreign countries (if the are unwilling to police their own territory) or Stateless territory (if they are unable).

You have an obligation to stop third parties from using your territory to attack others. If you fail to stop them then others will.

[Lawrence of Arabia]

There has been no internationally recognized act of war by the state of pakistan against a dozen foreign countries.

[Lawrence of Arabia]

Even if you fail in your obligation to prevent al qaeda from operating in your territory, that does not allow for self help by another country (which i patiently explained above)

read the case before you start talking.

[KrazyHorse]

Just because nobody wanted to call it that doesn't mean it didn't happen.

We'll keep it below that level, and so will Pakistan.

But failing to rein in militants operating from your territory when you have the ability to do so means that they are acting as de facto agents of the State. And when agents of the State engage the soldiers of a foreign country in combat you've got yourself an act of war.

[KrazyHorse]

Here's one right here:

http://news.bbc.co.uk/2/hi/south_asia/4614188.stm

[Lawrence of Arabia]

Just because nobody wanted to call it that doesn't mean it didn't happen.

We'll keep it below that level, and so will Pakistan.

what wrong about acting within the bounds of law? if you are so sure that its legal, then why dont you go the extra mile and make it legal procedurally. only those who are afraid of the legality will refuse to go the extra mile.

But failing to rein in militants operating from your territory when you have the ability to do so means that they are acting as de facto agents of the State. And when agents of the State engage the soldiers of a foreign country in combat you've got yourself an act of war.

no, i already explained it. Read the Uk v Albania case.

[lord of the mark]

Originally posted by Lawrence of Arabia


what wrong about acting within the bounds of law? if you are so sure that its legal, then why dont you go the extra mile and make it legal procedurally. only those who are afraid of the legality will refuse to go the extra mile.



no, i already explained it. Read the Uk v Albania case.

1. If most states disregard a particular ruling of the ICJ, is the ICJ ruling international law, or is the actual practice of states international law?

2. As to why not go to the UNSC - the US has no interest in declaring Pakistan in breach of its obligations. Since in actual fact we probably DID go in with the consent of the Pakistan govt. OTOH the Pakistan govt cant say so in public, for domestic political reasons. So they just give us a wink "this is unaccceptable, but our relations with the US are good, and improving" Now our legal stance is this - EITHER they consented, OR if they didnt, they are in harboring terrorists, and we can strike in self defense. However we have no interest in FORCING them to declare which, since the results on the ground are the same, and forcing them to declare which would either harm them domestically, or harm our biliateral relations. Ergo, its best NOT to make a formal complaint. If international law cant accommodate that ambiguity, well, too bad for international law (See 1 above)

As for the Afghan 2001 situation, I think the feeling was that A. It would slow us down - at the time the Taliban was quibbling over whether there was sufficient evidence that OBL was responsible. B. It would set the wrong precedent, for situations like the one we are discussing.

[lord of the mark]

I am also puzzled that folks think a sniper is the answer. Snipers sometimes miss, and kill innocents. A spec ops force might well still have destroyed the building, killing whoever inside.

[Arrian]

I agree with NYE about the many pitfalls associated with sending in a special ops team. You could easily get another "Black Hawk Down" situation - a bunch of dead SpecOps guys and hundreds of dead villagers. Or it could all work out... difficult to say. Crazy as it sounds, I'm going to accept the judgement of the military commanders who are in charge of this stuff.

I mean if the US effort in Afghanistan was graded as a school report...

Yep, that's about the level of your input. Have fun at recess.

Afganistan was (and is) an extremely difficult place to do much of anything. Tribal Pakistan is essentially the same thing, across a line on a map.

But of course the US is supposed to swoop in, capture all the bad guys without harming so much as the native fauna, and then (I presume) hand them all over to the Hague for trial. That probably would get us a B+ from MOBIUS.

-Arrian

[Lawrence of Arabia]

1. If most states disregard a particular ruling of the ICJ, is the ICJ ruling international law, or is the actual practice of states international law?

An ICJ ruling is similar to a supreme court ruling. It establishes precedent, and it can be reversed by another ICJ rulin later on that contradicts it. Both are part of international law, since they base their findings on that law. If the law changes, then so will future rulings.

As for the Afghan 2001 situation, I think the feeling was that A. It would slow us down - at the time the Taliban was quibbling over whether there was sufficient evidence that OBL was responsible. B. It would set the wrong precedent, for situations like the one we are discussing.

and thats fine, but B just totally wrecks international law as it is today, since only the SC is allowed to make determinations on self defense case. Art. 2 of the UNC is thrown out in this case. You can rewrite international law, sure, but dont expect to enjoy the same benefits later as you do now.

[lord of the mark]

article 2, as you posted

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Im not an international lawyer, but reading it, it does NOT say that the member engaging in self defense has an affirmative obligation to go to the UNSC for permission, merely to report their actions - rather, having asserted that the UNSC CAN take measures to maintain peace and security, it reaffirms the inherent right of individual and collective self defence, and then clarifies that this exercise of self defence does not prevent UNSC from taking further measures IF the UNSC can manage to pass a res for such measures. AFAIK thats how its been interpreted by states in practice, especially during the cold war, when it was difficult to pass things against great power vetoes.

Ergo the US and its coalition partners having taken self defence measures in Afghanistan in October 2001, had an obligation to report these to the UNSC (did they not?) and the UNSC had the right to pass resolutions on the matter, and to take further action, if called for.

[lord of the mark]

Originally posted by Lawrence of Arabia


An ICJ ruling is similar to a supreme court ruling. It establishes precedent, and it can be reversed by another ICJ rulin later on that contradicts it. Both are part of international law, since they base their findings on that law. If the law changes, then so will future rulings.

I understand that the ICJ attempts to make rulings based on law, but what im asking is if the ICJ makes a ruling based on the ICJ's interpretation of law, and if states proceed based on a different interpretation, isnt the states interpretation effectively what international law is? Im taking a positive view of international law. As for SCOTUS, there was initially some question about the binding quality of SCOTUS rulings. And this came up again during the civil right conflict. The willingness of the Federal govt to enforce SCOTUS rulings, with Federal troops when necessary, is what established the SCOTUS rulings as postive law. International law however is self enforcing = one who breaks international law suffers in relations with other states - so what IS law would seem to be what states enforce.

[Lawrence of Arabia]

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Im not an international lawyer, but reading it, it does NOT say that the member engaging in self defense has an affirmative obligation to go to the UNSC for permission, merely to report their actions - rather, having asserted that the UNSC CAN take measures to maintain peace and security, it reaffirms the inherent right of individual and collective self defence, and then clarifies that this exercise of self defence does not prevent UNSC from taking further measures IF the UNSC can manage to pass a res for such measures. AFAIK thats how its been interpreted by states in practice, especially during the cold war, when it was difficult to pass things against great power vetoes.

Ergo the US and its coalition partners having taken self defence measures in Afghanistan in October 2001, had an obligation to report these to the UNSC (did they not?) and the UNSC had the right to pass resolutions on the matter, and to take further action, if called for.

We must first look at self defense. Since international law is state to state, self defense can only be applicable if agents of one state acting in official capacity are sent over to another state to invade or attack. There is no evidence that the government of afghanistan sent al qaeda over, therefore you cannot declare self defense since it was not the state of afghanistan who officially attacked the US.

Now, could the US have entered afghanistan to suppress and take out Al Qaeda militairly in police action of sorts? Yes, but they would have needed a security council resolution (which they failed to get). Self help (as I showed earlier) is illegal under international law, even if the state (Afghanistan) had failed in its international obligation.

I understand that the ICJ attempts to make rulings based on law, but what im asking is if the ICJ makes a ruling based on the ICJ's interpretation of law, and if states proceed based on a different interpretation, isnt the states interpretation effectively what international law is? Im taking a positive view of international law. As for SCOTUS, there was initially some question about the binding quality of SCOTUS rulings. And this came up again during the civil right conflict. The willingness of the Federal govt to enforce SCOTUS rulings, with Federal troops when necessary, is what established the SCOTUS rulings as postive law. International law however is self enforcing = one who breaks international law suffers in relations with other states - so what IS law would seem to be what states enforce.

Art. 94 (1) says that the ICJ is binding, and Art. 94 (2) says that if states do not follow its rulings, they are in breach.

Only state's who have, from day 1 of an emerging custom (that will eventually become codified and used by ICJ in its rulings) had a 'persistant objector' status on it are exempt from it. For example, if there is a certain way to deliminate sea zones for countries in near proximity, and one nation, from day one, objects to an emerging custom on how said sea zone is to be delimitated, the later codefied custom cannot be used by one country against the persistant objector.
In other words, if states are interpretive emerging international law differently when it starts to emerge, they will not have to abide by it.

The last part is exactly true, and why I dislike international law. There are very few penalties for breaching international law (not like the cops can come and arrest you) Which means states sometimes try to get around it, and only a few get more than a slap on the wrist (like Saddam in Kuwait)

[lord of the mark]

Originally posted by Lawrence of Arabia


Since international law is state to state, self defense can only be applicable if agents of one state acting in official capacity are sent over to another state to invade or attack.

I dont see why the second half of your sentence follows from the first. International law is state to state, but that doesnt mean it cant hold a state responsible for actions based on its soil. Whether it has actually done so or not is an empirical question, but i dont see how the nature of IL as state to state enters in. Domestic civil law regulates relations among humans, but it can give one human a remedy against another who allows a dangerous animal to live on his property, and endanger others.

As a matter of fact of course, the connection between the Taliban and Al Qaeeda was intimate, to the point where it was not easy to seperate AQ from the organs of the Afghan state. However that is not so in the Pakistan case, or in many others.

[lord of the mark]

and how, in fact did the UNSC react to the coaliton invasion of Afghanistan? Was there even the hint that it was a matter the UNSC wanted to take up, or considered a threat to the peace? Did not subsequent UNSC resolutions on Afghanistan accept and approve of the coalition actions? Did any state take the US before the ICJ?

In fact it appears that the UNSC, and the entire body of states share the US interpretation. In which case is it even necessary to object? If its assumed by all that the ICJ rulings dont apply as you say they do?