The Legal Implications of Military Intervention in Libya

(Published in The Huffington Post, March 2, 2011)

As the crisis in Libya deepens there is increasing chatter about the possibility of military intervention. At the moment this is suggested most frequently in the form of a no-fly-zone over Libya, in order to prevent Gaddafi from using the air force against civilian protestors.

A debate is developing over the wisdom of any American or Western military involvement, but as usual there is little being said about the international law principles that would be implicated by such operations. And in the context of the growing unrest throughout the region, perceptions of the legality or illegality of any U.S. military action could have a significant impact on the developing narrative in the Arab world regarding America’s role, and how the emerging regimes ought to frame their relations with the U.S. going forward. The law matters in this situation.

The starting point of the legal analysis is the basic prohibition in international law on the use of armed force against the territorial integrity or political independence of any state. The two primary exceptions to the prohibition are self-defense, which is obviously not applicable here, and operations authorized by the United Nations Security Council in response to a threat to international peace and security. There is no question, therefore, that if the U.N. Security Council passed a resolution authorizing the imposition of a no-fly-zone in order to maintain peace and security in and around Libya, as it did in Iraq in the 1990s, the U.S. and its NATO allies could do so with the full imprimatur of international law.

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New START is About More Than Russia

(Initially published in The Huffington Post, December 15, 2010)

The Senate is to take up ratification of the New START treaty for consideration again this week. While much has been written on the debate over the issue, there are important considerations that are not being sufficiently addressed. Quite apart from relations with Russia, a failure to ratify the treaty risks a fatal undermining of the nuclear non-proliferation regime.

To understand why this is so requires us to go back to the origins of the nuclear non-proliferation treaty (the NPT). When it was negotiated in the 1960s, to prevent the further spread of nuclear weapons, there was a grand bargain struck. In exchange for agreeing to forswear nuclear weapons, the non-nuclear countries that jointed the regime were promised assistance with the development of peaceful nuclear energy, and the recognized nuclear-weapons states committed to make meaningful efforts towards nuclear disarmament.

189 countries are now party to the NPT, and the treaty has survived as the primary legal framework for the international effort to prevent the proliferation of nuclear weapons. There is no other legal prohibition against the development of nuclear weapons, and absent the NPT and its underlying bargain, there is indeed no principled basis why some countries should be permitted to maintain nuclear weapons while the rest are denied the right to develop them. … Read more…

The Use of Force and Int’l Law: The Void in American Discourse

(Initially published in the Progressive Fix)

President Obama, in accepting his Nobel Prize, spoke in lofty terms about the requirement that all nations, weak and strong, must adhere to the legal standards that govern the use of force. He noted that the U.S. had played a leading role in creating that legal framework. And he went on to underline that the U.S. too must respect international law: “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”

And yet the absence of any public discussion or analysis of the legal issues raised by America’s efforts against terrorism is striking. Whether it be torture and extraordinary rendition, military commissions, the targeted killing by drone attacks in Pakistan, the planning of CIA assassination squads, the large number of civilian deaths in air strikes in Afghanistan, or even the prospect of military strikes in Iran, all of these raise significant and complex international law issues. But you will not find any meaningful discussion of those issues in the media, or indeed in the talking points, blogs, or analysis produced by most liberal or progressive organizations. … Read more…

Piracy and the Constitution

(Initially published in the Japan Times, March 26, 2009)

Once again the issue of Japanese contributions to international security efforts is the subject of tortured debate. And once again the proposed government policy, and aspects of the debate itself, reveals fundamental misunderstanding of the relationship between Article 9 of the Constitution and the relevant principles of international law.

This time, the issue relates to maritime piracy off the coast of Somalia, and the proposed deployment of Japanese naval vessels to the area. Predictably, the issue has triggered debate over the effect of the war-renouncing provision of the Constitution. A careful analysis, however, would suggest that the Article 9 prohibition on the use of force would not apply to the deployment of naval forces, or their use of weapons, to protect shipping from pirates in international waters.

Yet, it is clear that the government policy is being formulated under the shadow of Article 9. While the ships are initially being deployed under the authority of Article 82 of the Self-Defense Forces Law, the government has drafted and submitted to the Diet a permanent anti-piracy law, and it is around this bill that debate has focused. … Read more…