NYU Professor Ryan Goodman is among the many esteemed contributors to the latest entry in the U.S. Naval War College's International Law Studies (Blue Book) Series. This volume of the Series is titled The War in Afghanistan: A Legal Analysis. …
This occasional series will highlight the book annotations that constitute the back pages of every issue of the NYU Journal of International Law and Politics. We are beginning with this review of Myra Williamson’s Terrorism, War and International Law: The Legality of the Use of Force Against Afghanistan in 2001, because it raises the crucial question of the right of States to use force in self-defense against non-State actors. This issue sits in the background of much of the current debates about the use of force, most recently in Professor Alston’s Targeted Killings report.
By Graham F. Dumas
Myra Williamson’s Terrorism, War and International Law: The Legality of the Use of Force Against Afghanistan in 2001 comes at a time when the conflict in Afghanistan is returning to the fore of U.S. foreign policy and as the fight against terrorism continues to expand. Yet many of the legal questions surrounding this conflict were simply glossed over at the time of the invasion and have not yet been satisfactorily resolved.
Basing her argument mainly on legal history, Williamson asserts that the use of force against Afghanistan could not be legally considered self-defense according to the U.N. Charter because there was no armed attack for the purposes of Article 51, because the Security Council did not authorize unilateral force in Resolution 1368, and because Al Qaeda’s actions could not be attributed to the Taliban. Similarly, the author argues that the invasion of Afghanistan was not legal under customary international law because it was neither necessary nor proportionate, and there was no immediate threat of attack in the weeks following September 11.
In vigorously asserting the illegality of the invasion of Afghanistan, Williamson raises a number of interesting points
and provokes a great deal of thought, especially with respect to the many weaker links in the argument for the invasion’s lawfulness. As she notes, the International Court of Justice (ICJ) has held on numerous occasions that Article 51 applies only to armed attacks by states, and the link between Al Qaeda and the Taliban is indeed tenuous, especially under a classical interpretation of the law. Particularly insightful is the study of the opinio juris of various NATO members with respect to that organization’s declaration that an armed attack occurred; the author suggests that what appeared to be a unanimous declaration that September 11 was sufficient to trigger the inherent right of self-defense was in fact anything but. Despite these effective points, Terrorism, War and International Law is a disappointing and ultimately unsuccessful effort which leaves out more than it includes, treats as fact several highly contentious claims necessary to support the main thesis, and often fails to address the post-Afghanistan era’s most pressing legal questions.
The NYU Journal of International Law and Politics is pleased to announce its upcoming symposium on the topic of arctic governance. The date is set for October 22, 2010. More information can be found at the Symposium page, above. The…
By Ben Heath
To continue the discussion of Professor Philip Alston’s report on targeted killings, I can imagine no better discussion on the self-defense rationale for drone strikes than that presented by Marko Milanovic at the EJIL blog. (At Opinio Juris, Kenneth Anderson promises a response, which will most certainly provide for interesting debate.)
I also fully agree with Milanovic’s critique of Alston’s assertion that, outside of armed conflict, “the use of drones for targeted killing is almost never likely to be legal.” This statement is unncessarily conclusory: there should be some limited room for these strikes in the law enforcement paradigm of human rights, provided that the target poses a significant danger, that no opportunity for capture exists, etc. One imagines that this might be the case in countries where the government holds only loose control over wide swaths of territory. But, to be sure, drone strikes on the New Jersey Turnpike are almost certainly illegal.
I would not presume to step further into such well-covered ground. Instead, I will use this space to highlight some other aspects of the report, while recognizing that these are definitely sidenotes to the major issues.
We are pleased to announce that the Spring 2010 issue of the Journal of International Politics is now available online. The bulk of Issue 42:3 is dedicated to discussion of the ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities, which was released last year. The Forum features four responses to the work International Committee of the Red Cross:
- Brig. Gen. (Ret.) Kenneth Watkin, of the Canadian Forces, discusses the concept of “organized armed groups” in the ICRC document.
- Prof. Michael N. Schmitt, of Durham University Law School, analyzes the ICRC’s framing of the constitutive elements of “direct participation.”
- Air Cdre. Bill Boothby of the RAF focuses on the temporal dimension of direct participation.
- Col. (Ret.) W. Hays Parks, of the U.S. Department of Defense Office of General Counsel, criticizes the document’s restraints on the use of force in direct attack.
The Forum also contains a detailed response from Nils Melzer, legal adviser to the ICRC and author of the Interpretive Guidance document. Professors Ryan Goodman (NYU School of Law) and Derek Jinks (University of Texas at Austin; U.S. Naval War College, 2009-10) present a brief introduction.
In addition, Issue 42:3 contains two illuminating discussions of the TRIPS regime, the World Trade Organization’s agreement on intellectual property rights. Both examine the bilateral IP treaties frequently known as TRIPS-Plus, which generally provide IP protection above and beyond that guaranteed by the original mulitilateral TRIPS agreement. Beatrice Lindstrom focuses on TRIPS-Plus agreements in Asia and the Pacific, and aruges that they have negative external effects on stakeholders who are not represented in negotiations. Matthew Turk presents a much more sanguine view of TRIPS-Plus. He argues that, while defects in the bargaining process argue for a “pro-development” interpretation of the original TRIPS agreement, no such defects existed in TRIPS-Plus negotiations. Therefore, he concludes that the terms of TRIPS-Plus treaties should be interpreted literally, to best effectuate the intent of the parties.
The issue also contains our usual roundup of book annotations, many of which will be posted on this blog in the coming weeks. Click the jump for more on Direct Participation in Hostilities.
Submission Deadline: 24 September 2010
In honor of Professor Jerome A. Cohen, who turns 80 on July 1, the New York University Journal of International Law and Politics is seeking papers addressing the interaction between the international legal system and Chinese and East Asian law and legal thought. East Asia’s distinctive institutions and legal systems continue to engage in a thought-provoking conversation with the global legal order, one that challenges traditional assumptions about international law. Such interaction shows signs of effecting transformative changes both within domestic systems and at the international level. With the Jerome A. Cohen Prize, the Journal of International Law and Politics will honor a novel contribution to this growing body of scholarship. Papers may focus on any substantive discipline, although special consideration will be given to work relating to the subject areas currently taught by Professor Cohen: criminal justice, foreign investment law, and the role of Chinese legal thought in international law.