Unilateral Coercive Measures and
International Law
by
Ben Chigara, Ph.D. (University of Nottingham)
LL.M. With Distinction,& Best performance award (Hull University)
BA Hons. (Law & Psychology) University of Keele
Professor of Law, Brunel University, London, UK
Universalism + Unilateralism= +/-?
The chains of habit are too weak to be felt until
they are too strong to be broken….
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How clear can Public International Law be?
• Lotus Case (France v Turkey) PCIJ Reports Series A, No.10. p.253 (1927)
Held: There exists a hierarchy of restrictions against States in their
relations one with another. “The first and foremost restriction imposed by
international law upon a State is that – failing a permissive rule to the
contrary – it may not exercise its power in any form in the territory of
another State.”
• Island of Palmas Case (Netherlands v USA) 1928 - Held: In the relations
between States, title to territory is the single most important signifier of
sovereign status. “It demonstrates independence in regard to a portion of
the globe to exercise therein, and to the exclusion of any other State, the
functions of a State” - per Judge Huber, Island of Palmers Case (1928) 2
R.I.A.A. p. per Judge Huber
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How clear can Public International Law be?
• Corfu Channel Case, ICJ Reports (1949) p.35 Held: “Between independent
States, respect for territorial sovereignty is an essential foundation of
international relations”
• ICJ Advisory Opinion on the probable use of NW 1996 Held: Whatever the
consequences, the Court could not exclude that such use would be lawful
“in extreme cases of self-defence, where the very survival of a state would
be at issue”
• Case Concerning Military and Paramilitary Activities in and against
Nicaragua (Merits) ICJ Reports (1986) para. 227-8 Held: Art 2.4 UN Charter
not only requires that States refrain from the threat or, actual use of force
but also balances this requirement on the promise of an effective
collective security regime under the control of the Security Council for the
protection of States from violators of the peace.
• ICJ stated that this requires States not to just renounce war, “but also all
the other forms of interstate violence”.
• WHERE DOES THIS LEAVE UCMs?
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Normative Effects of Unilateral
Coercive Measures
• Reject Lotus Case idea of a hierarchy of norms
• Reject authoritative interpretation of Art 2.4 in
Nicaragua Case
• Reject notion of statehood under Monte- Video
Convention (1933)
• Exaggerate demise of idea of sovereignty in MIL
even in light of ICJ Advisory Opinion in Nuclear
Weapons Case; and Germany v Italy (2011)
• Reject rule of law in interstate relations and
substitute primitive instincts for enlightenment
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Normative Effects of Unilateral
Coercive Measures
• Reject effect of Article 2.1 of UN Charter according to
which all States are sovereign equals
• Germany v Italy (3 March 2012) ICJ stated: sovereign
equality of States, which, as Article 2, paragraph 1, of
the Charter of the United Nations makes clear, is one of
the fundamental principles of the international legal
order. This principle has to be viewed together with the
principle that each State possesses sovereignty over its
own territory and that there flows from that
sovereignty the jurisdiction of the State over events
and persons within that territory.
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Resort to primal instincts
• Law is unreliable, because of state of normative ambiguity
(Daphne Richemond, 6 Yale H.R. & Dev Law Journal
• Consequently we cannot wait until it has developed
through the phases of lex lata and messiah, resulting in
strict normativity
• “… in the absence of a prohibitive rule, there is indeed a
rule of unilateral humanitarian intervention” D.R. ibid.
• Earlier slides suggest: the law against UCM is clear
• In any event, “strict normativity is unlikely to deter HR
violators more efficiently than the current framework”
Daphne Richemond (in my view wrongly construed)
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Social effects of Unilateral Coercive Measures
• For lack of wood the fire goes out, and where there is no
whisperer, quarrelling ceases. Prov. 26:20
• Give appearance of taking sides between parties
• Promote rigidity between conflicting parties – prolongs &
exacerbates human suffering sought to be contained
• Parties focus on clinching victim status more than on
resolving their differences
• Intensify the conflict (Cuba v USA – 50+yrs)
• Promotes/Escalates the very suffering used as basis for UCT
• Confuses dialogue about who is responsible for human
suffering between the Coercive Measure Implementing
State & the Target State Authorities
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Certitudes in target State
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Disruption to national economy
Consequential illicit trading grows/takes over
Consequential reduction in national income
Outpouring of economic and often ‘false’
political refugees impacting family relations
• Consequential fracturing of cultural ties built
over centuries between: (i) concerned States;
(ii) nationals of target State and coercing
State; (iii) entrepreneurs on either side
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Procedurally counter-productive
• Cannot ensure desired effect during regime!
• Cannot guarantee the proportionality
requirement.
• Demonstrate primal instincts to humiliate
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Observations
•
UCM throw out the rule book and threaten new illegalities in inter-State relations except to
the extent that the actor presumes the target State's incompetence to react in a manner that
also throws out the rule book.
• This is because:
1. “A 'unilateral action' is an act by a formally unauthorised participant which effectively preempts the official decision that a legally designated official or agency was supposed to take. Yet
the unilateral action is accompanied by a claim that it is, nonetheless, lawful" Reisman, M.W.
(2000) Unilateral Action and the Transformations of the World Constitutive Process: The Special
Problem of Humanitarian Intervention” EJIL (11) 1
2. “A unilateral action effectively replaces lawful decision, by obviating it entirely or forcing official
processes to endorse it.” Reisman, ibid.
3. Other unilateral acts do not pre-empt or replace authoritative decision; they merely stimulate
its operation and are ultimately reviewed by it. Reisman, Ibid.
•
•
Enforcing State cannot prove at any point of its UCM regime that the human suffering that it
sought to contain has been abated by the intervention. Often it gets worse. Even if it may
abate, other factors exclusive to the UCM may be responsible for the change.
Research suggests that during UCM regimes, in the target State the poor get poorer; women
and children suffer as family relations break up, children are forced into prostitution for food
to survive, refugee problems for immediate neighbours and false refugees appear in distant
countries, etc
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Observations and Recommendations
• The question of legality under international law of UCM can appear as
complex for the untutored mind just as easily as easily as it can appear
wilfully ambiguous for the trained lawyer, social scientist or diplomat.
Why?
• Because as presently constructed it is a question for constitutional law.
Look at all the advisory opinions of the ICJ. Always formulated along the
question of legality of this or that …
• However, the justifications for this formulation point to an entirely
different constituency of law, namely enforcement of International Human
Rights Law.
• The apparent and inevitable mingling in the discourse on UCM of
principles of constitutional law on the one hand, and the protection of
fundamental human rights law in target States as the basis of UCM on the
other manifests in my view an innocent and genuine frustration of
Unilateral Coercive Measure Centric States with the absence of a more
efficient mechanism or system for the protection of HR. However, they
appear too timid to admit it or determined to tackle.
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Recommendations
• It shows that UN Human Rights Commissions, Human Rights Committees
and Councils are not the best way to stop systematic and widespread
human rights in sovereign States when they occur. Schennin and Nowak
who are both exemplary in their service to the UN HR movements now
advocate the establishment of a World Court of Human Rights.
• Such a development would, I am sure cancel out apologist claims that
nothing in the present world order is more capable than UCM to deter
human rights violators
• Secondly, it would tackle the conceptual void that allows the question of
UCM to be presented as a constitutional court (ICJ) matter on the
enforcement of HR
• The UN must make haste to establish a World Court of Human Rights
• The jurisdiction of such a Court and its mandate should be limited to interState complaints and exclude individual petitions and class actions States
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