My Reading of Herodotus's The Histories

"Consider what you have in the smallest chosen library. A company of the wisest and wittiest men that could be picked out of all civil countries, in a thousand years, have set in best order the results of their learning and wisdom. The men themselves were hid and inaccessible, solitary, impatient of interruption, fenced by etiquette; but the thought which they did not uncover to their bosom friend is here written out in transparent words to us, the strangers of another age" - Ralph Waldo Emerson.

Summer 2015 Reading List

by Kudakwashe Kanhutu

Aristotle, in his Poetics, famously summarised Homer’s thick volume epic poem – The Odyssey – in 3 sentences. He summarised it thus: 

“A certain man is absent from home for many years; he is jealously watched by Poseidon, and left desolate. Meanwhile his home is in a wretched plight – suitors are wasting his substance and plotting against his son. At length, tempest-tost, he himself arrives; he makes certain persons acquainted with him; he attacks the suitors with his own hand, and is himself preserved while he destroys them. This is the essence of the plot; the rest is episode.” 

Homer’s The Odyssey is around 560 pages long. I am going to do even better than Aristotle here and summarise Herodotus’s The Histories, which is 734 pages long, in one sentence: “Read it yourself!” 

Summer Readings: 

I come from a country where some dinosaurs still exist who think that not sharing the knowledge they have is a form of distinguishing themselves from the rest. Selfish, selfish, selfish. It is also something that only works to the detriment of the polity. The one thing I learnt, however, from the countries I have been to, where hogging knowledge is frowned upon, is that you don’t really have to converse with these dinosaurs as “everything that is worth knowing has already been put in books, just read them.” Of course, “the man who does not read good books has no advantage over the man who cannot read them.” Luckily, I have had close contact with policy makers and various successful people who freely publish lists of what they are currently reading and what they have already read. Bill Gates’s Gates Notes is one such public source of good books but as I myself am not a man of business, I have never read any of his recommendations. My interest is in classical texts that teach about international relations, public policy and courtly intrigues. In that regard, I would sooner re-read Niccolo Machiavelli’s The Prince than read the Bill Gates recommended John Brooks’s Business Adventures. So, I have my own sources of reading lists. 

The Histories of Herodotus: 

Two years ago I spent the whole summer reading Thucydides’s The History of the Peloponnesian War – excellent book. Before then, in the previous summers, I had read the works of Plato, Thomas More, and Aristotle; the Epic Poems of Homer, Virgil, John Milton and John Dryden as part of my study for my first degree: Classics. It so happens then that the canon I currently enjoy reading was decided for me by my first degree. So, I tend to read works from Greek antiquity and I find them riveting. I had so far not found any time to read Herodotus, owing to lack of time, due to the reading demands of my second and third degrees: my recently finished studies in Modern Warfare. But The Histories has always been the great outstanding work from Greek antiquity that I still had to read. 

When I finally found time to read it, I was also initially very sceptical of Herodotus’s integrity as a Historian, but therein lay my mistake. Volumes have been written about people who miss the forest while looking for the tree. You prevent yourself from absorbing the lessons or enjoying the writing style of an author because you want to question that, “oh, if he wasn’t present when such and such happened, how can he report back to us, word for word, what was said during that occurrence?” Should you ever read all these works from antiquity, a better course of action is to concern yourself only with what you can learn from the recorded actions of the ancients and the outcomes they yielded in each instance. 

An even better way is to take Aristotle’s counsel when he defended epic poetry. He said; 

“Poetry, therefore, is a more philosophical and a higher thing than history: for poetry tends to express the universal, history the particular. By the universal I mean how a person of a certain type on occasion speak or act, according to the law of probability or necessity; and it is this universality at which poetry aims in the names she attaches to the personages.” 

With the passage of time (for Aristotle is a near contemporary of Herodotus), Herodotus’s The Histories can be argued to have come to hold the same value of “expressing the universal” that epic poetry was then argued to hold. 

This, then, is the way I read The Histories; as a recording of the actions that happened in the intercourse between Greeks and their neighbours in Asia, Europe and Africa (Ethiopia, Egypt and Libya feature prominently). What worked and what didn't work in that intercourse is what interested me in his Histories. This book is also excellent in that it applies as a textbook of both international relations and domestic politics. The intercourse between Greeks (Spartans, Athenians, and Thebans) as well as that between the Greeks and Barbarians (Persians, Ethiopians, Egyptians and Libyans) qualify as early forms of international relations. While the relationships between the military, religious figures, political figures and private citizens in, for example, Athens, qualifies as domestic politics 101. If you also look to modern times, after reading Herodotus, you will find that most of the events he recorded have been replicating themselves throughout the years. Herodotus’s Histories, in the words of Shakespeare, thus, held a mirror to human nature. 

Much Better Than Shakespeare: 

The other value of Herodotus’s The Histories is that it supplies you with maxims that have withstood the test of time. Shakespeare (who I read extensively) also has important maxims, but the problem with Shakespeare’s maxims is that they just jump at you, from nowhere, unsupported by the surrounding text. This anomaly has led many scholars to doubt the authenticity of Shakespeare’s authorship. It is as if a much cleverer scholar, after time had passed, added his own maxims but did not have the due care to add his maxims where they were supported by the preceding and succeeding text. An example of this is the Seven Ages of Man speech in As You Like It. 

Herodotus’s maxims in The Histories, on the other hand, are logical as they are supported by the surrounding text. Here are two quick examples: his quotation, “This is the bitterest pain among men, to have much knowledge but no power" comes during a conversation between a Persian soldier and Thersander, a Greek traitor who had taken sides with the Persians when they invaded Greece. The Persian implores Thersander to desert and seek his safety as this Persian expedition was doomed to perish. Thersander then asks the Persian soldier why he doesn’t take this knowledge to his generals so that they may forthwith stop the invasion, to which he then gets the above reply. The second quote is; “If a man insisted always on being serious, and never allowed himself a bit of fun and relaxation, he would go mad or become unstable without knowing it.” This comes from the passage where the Egyptians confonted their King, Amasis, and said to him his style of drinking and joking with common people was unbecoming for royal dignity, and the above is the suitable response he gave them. 

Herodotus: Not Just Another Academic: 

As I have a disdain for academics and scholars, I also warmed up to Herodotus because, not only did he record history, he also participated in its creation. Here is how he casually mentioned his involvement in the history he was recording in Book Eight, Chapter 132:  

When the whole fleet was collected together at Aegina, ambassadors from Ionia arrived at the Greek station; they had but just come from paying a visit to Sparta, where they had been entreating the Lacedaemonians to undertake the deliverance of their native land. One of these ambassadors was Herodotus, the son of Basileides. Originally they were seven in number; and the whole seven had conspired to slay Strattis the tyrant of Chios; one, however, of those engaged in the plot betrayed the enterprise; and the conspiracy being in this way discovered, Herodotus, and the remaining five, quitted Chios, and went straight to Sparta, whence they had now proceeded to Aegina, their object being to beseech the Greeks that they would pass over to Ionia. It was not, however, without difficulty that they were induced to advance even so far as Delos. 

Criticism of The Histories: 

Herodotus has been criticised for not writing his history in a chronological sequence as did Thucydides. I argue that as a pioneer of the writing of history, Herodotus had no frame of reference, unlike his successors like Thucydides, who just refined his invention. Another famous criticism is by Plutarch titled, The Malice of Herodotus. I advise you to read it yourself but his general complaint was that Herodotus painted the Barbarians (Persians, Europeans, Egyptians, Ethiopians, Libyans, Indians) in a positive light while denigrating his own kind – The Greeks. As a non – Greek myself, this does not bother me in the least.

The Histories is 734 pages long.

Does Customary Law Permit Pre-Emptive Strikes?

"No man's error becomes his own Law; nor obliges him to persist in it" - Thomas Hobbes.

A word of caution to myself in everything I do.

I would be very disconsolate if anyone, after reading this paper I only wrote to satisfy the requirements of my Defence Studies MSc, starts believing I even doubt the currency of the maxim; "might makes right."

by Kudakwashe Kanhutu

To what extent, if at all, has there emerged a customary legal rule permitting pre-emptive self-defence (as an exception to the prohibition on the use of force in international law)? 

Introduction: 

The idea that a customary legal rule permitting an action in international relations has emerged, requires us to take a closer look at how customary international law is formed. There are controversies as to how customary law forms, but these controversies do not overburden the subject of this paper as the law on the use of force is well developed. The major issue, with regards this branch of public international law, seems to be differences in the interpretation of what the letter of the law says. As the prohibition on the use of force is codified in the UN Charter’s Article 2 (4), the relationship between treaty law and custom will also yield some useful insights as to whether this Article, in conjunction with Article 51 of the same Charter, have altered or reinforced a pre-existing customary rule of pre-emptive self-defence. The Caroline case of 1837 is cited by most authors as definitive of what pre-emptive self-defence implies (Brownlie, 2008: 734; Sands, 2012: 352) and others actually use it to argue that the right to pre-emptive self-defence has thus always existed as customary international law (Van Den Hole, 2003: 95; Arend, 2003: 89; Franck, 2002: 97). 

This paper takes the view that the Caroline case is a specious argument when used as an example of the existence of a customary rule permitting pre-emptive self-defence. Pre-emptive self-defence as articulated in the Bush Doctrine has no legal basis, while anticipatory self-defence which adheres to the imminency, necessity and proportionality criteria of the Caroline case may be defensible in law.

The Prohibition on the Use of Force:

The most important prohibition on the use of force is Article 2 (4) of the UN Charter, which was affirmed to have attained jus cogens status by the International Court of Justice (ICJ) in the Nicaragua case (Gray, 2010: 617). Article 2 (4) itself is not widely contested with regards self-defence, it reads that; “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations” (Gray, 2010: 617). Instead, it is the exception to this prohibition which raises disagreements among those who feel there is a long standing legal rule permitting pre-emption which was not modified by the coming into force of the UN Charter. 

Article 51 of the UN Charter allows the right to use force in self-defence as an exception to Article 2 (4). It reads; 

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 the 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 (Gray, 2010: 625) 

The debate around whether pre-emptive self-defence is permitted after the Charter came into force revolves around the question whether Article 51 has reinforced or altered the customary right to self-defence. The protagonists in this debate look to the language of Article 51 and, depending on their interpretation, either argue that the right exists unaltered or it has been replaced by this treaty provision. I will turn to this debate after first having established how customary law is formed and its relationship to treaty law. 

Customary International Law: 

The definition of customary international law can be found in Article 38 (b) of the International Court of Justice Statute which refers to it as “international custom, as evidence of a general practice accepted as law” (International Court of Justice). Thus, customary law refers to how “the way things have always been done become the way things must be done” (Thirlway, 2010: 101). This only becomes law if it is seen to be done out of a sense of legal obligation rather than as a courtesy towards other bearers of rights (Thirlway, 2010: 102; Malanczuk, 1997: 39). So, for the formation of customary law, there is a requirement of the existence of these two elements: an established, widespread and consistent state practice accompanied by, opinio juris sive necessitatis – the belief that to do so is required by law (Thirlway, 2010: 102). Evidence of widespread and consistent practice can be found in actual state practice and statements of legal principles, while opinio juris can be found in such things as United Nations General Assembly Resolutions, compatible treaties and, statements made by state representatives (Dixon, 2007). 

The first controversy in the formation of customary law arises with regards a paradox noted by Thirlway (2010: 102) that; “how can a practice ever develop into a customary rule if  States have to believe the rule already exists before their acts of practice can be significant for the creation of the rule?” There are two ways out of this paradox which are significant for the subject of this paper. The first way articulates the likely origins of opinio juris, as well as, more importantly: the role of other States’ acquiescence or objection in the creation of customary law. The second way out of the paradox is useful for establishing what the rule is in cases such as that of pre-emptive self-defence where there is bound to be insufficient practice. 

The first way out of this controversy is as advanced by Cassese (2005: 157) who wrote; 

usually a practice evolves among certain states under the impulse of economic, political or military demands. At this stage the practice may thus be regarded as being imposed by social or economic or political needs (opinio necessitatis). If it does not encounter strong and consistent opposition from other states but is increasingly accepted, or acquiesced in, a customary rule gradually crystallizes. 

For our subject at hand, a group of states may attempt to use force pre-emptively, compelled by military or political needs, if other states do not object persistently in various international fora available to them, or instead if they actually endorse this activity; a customary legal rule permitting pre-emptive self-defence will then emerge. 

The second way out of the above stated paradox is whereby opinio juris is made the essential element and State practice merely evidence, this then would be useful in establishing what customary law is in instances where there is insufficient practice anyway (Thirlway, 2010: 103). Case in point: pre-emptive self-defence would not satisfy the test of widespread and consistent practice anyway because of the nature of the activity. So, by looking at General Assembly Resolutions on the matter, we would then be able to establish whether, although there is no widespread practice, if; opinio juris supports the existence of the rule. It is from this formula that we can argue that anticipatory self-defence (as formulated in the Caroline case and not the Bush Doctrine) is a crystallized customary rule, despite limited practice, because its affirmation in international multilateral fora such as the UN High-Level Panel is evidence of opinio juris. The same formula thus rejects the Bush Doctrine of pre-emptive self-defence as many states objected to it at the same UN High-Level Panel summit. Also, the 120 member countries of the Non Aligned Movement invariably issue statements objecting to this doctrine (Ruys, 2011: 342), so it could not possibly have emerged as a customary legal rule if there is such widespread and persistent objection to it. 

The other significant controversy that attaches itself to the discussion of the formation of  customary international law is; “regional or particular custom” whereby customary law can emerge because it is particular to either two states or a regional block such as in the early stages of the law concerning space (Klabbers, 2013: 28). These nuances do not apply to the subject of the use of force, because every state in the world is concerned by this branch of law. 

The Relationship between Custom and Treaty Law: 

Thirlway, (2010: 114) does not see any reference to a hierarchy of sources between custom and treaty in the text of Article 38 of the International Court of Justice Statute. The only possibility he sees of a hierarchy is in this formulation: lex specialis derogat generali: the special rule overrides the general rule (Thirlway, 2010: 113). In that regard, treaty law can be a higher source as “it will normally be the case that a treaty is lex specialis, and as such prevails over any inconsistent rules of customary law, or at least as existed at the time of the conclusion of the treaty” (Thirlway, 2010: 114; Dixon, 2007: 38). An example would be the modifications made to any pre-existing customs that were contrary to Article 2 (4) when the UN Charter came into force (Ruys, 2011: 18). Conversely, should a customary rule accepted as jus cogens emerge, then “any existing treaty which is in conflict with that norm becomes void and terminates” (Thirlway, 2010: 114; Dixon, 2007: 39). What this tells us about the relationship between the two sources is that, in theory, they are capable of replacing or modifying each other. With this in mind we can now turn to the debate about whether pre-emptive self-defence as customary law pre-dates the UN Charter, and if so, has it remained unaltered? This debate as noted above is, in essence, rooted in the different interpretations of what the text of Article 51 of the UN Charter implies. 

Anticipatory or Pre-emptive Self-Defence in International Law: 

Having looked at how customary law is formed and what that implies for this paper, it is important to now clarify the distinction this paper has made between anticipatory and pre-emptive self-defence. Anticipatory self-defence and pre-emptive self-defence are different in this author’s eyes, even though the existing literature tends to use the terms interchangeably. 

Anticipatory self-defence, for this essay, is seen to be as was articulated by the United States Secretary of State Daniel Webster in his exchange of letters with his British counterpart – Lord Ashburton – over the Caroline incident (Franck, 2002: 97; Doyle, 2008: 12). In Webster’s formulation, justifiable anticipatory self-defence arises only when the defender can show the existence of “…necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” (Brownlie, 2008: 98). This formula then means anticipatory self-defence is permissible when the conditions of necessity, imminency, and proportionality are met. The majority of states are not opposed to use of force that meets this criteria as can be the discerned from Bowen’s logic that “no state can be expected to await an initial attack which, in the present state of armaments, may well destroy the state’s capacity for further resistance and jeopardise its very existence” (Franck, 2002: 98). As was shown above in the section discussing how customary international law forms – despite insufficient practice – states’ opinio juris can be argued to support the existence of this custom. Evidence of such opinio juris can be found in the UN High-Level Panel on Threats Challenges and Change which says that "a threatened State… can take military action as long as the threat is imminent, no other means would deflect it and the action is proportionate" (UK Parliament, 2013). What, on the other hand, is indefensible as customary law; is the so-called Bush Doctrine. 

Pre-emptive self-defence, properly conceived, refers to the doctrine articulated post 9/11 by President George W. Bush in his 2002 National Security Strategy (NSS). The aspect that makes it necessary to distinguish this doctrine from the anticipatory self-defence as advanced by Webster in his Caroline incident communications with the British, is that the Bush Doctrine seeks to ignore all the criteria set by Webster and instead sets a new subjective standard. The 2002 NSS document pronounces that; 

The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively (The White House, 2002: 15). 

This pronouncement, insofar as it seeks to relax the rigour of imminency and necessity, finds no support among even the United States’ closest allies and, again, as was shown above in the section dealing with how customary law forms; objection by a majority of states to a practice or statement of intent will stop a customary legal rule from crystallizing. 

To the above Bush Doctrine, the UK Parliament (2013) rejected it and said “it is difficult to find any legal justification for pre-emptive self-defence in international law.” Furthermore, international lawyers and scholars such as Brownlie (2010: 734; Sands, 2012: 352) also say that this doctrine lacks a legal basis. Brownlie (2010: 734) also, further notes that Operation Iraqi Freedom, which came in March 2003 after the doctrine had already been pronounced, was not justified on the basis of this doctrine but, instead on a “revived” Security Council Resolution (SCR) 678. This does not bode well for the existence of a customary rule if the chief proponents of it did not rely on it in a situation which arguably fitted their set criteria. 

So, anticipatory self-defence as described above finds a basis in law but the Bush Doctrine of pre-emption does not. With regards to the question whether pre-emption is permitted under customary law today, we still have to look at the arguments advanced by the scholars who defend that position. Their arguments revolve around the proposition that the current technological advances in weaponry and, an expansive interpretation of Article 51 supports the legality of pre-emptive self-defence. 

Article 51 and Pre-emptive Self-Defence: 

The claim and counter claims as to what Article 51 means is between “restrictionists” and “counter-restrictions.” A “restrictionist” reading of Article 51 would require states to only act in self-defence after an armed attack has commenced or is so imminent that it satisfies the conditions of imminency, necessity and proportionality as set out in the Caroline incident (Doyle, 2008:). “Counter-restrictionists,” on the other hand, argue that there has always existed a legal rule permitting anticipatory self-defence and that this was not modified by Article 51 as the text still refers to the “inherent” right to self-defence (Arend, 2003: 92). 

They further argue that the term “armed attack” was just one circumstance that invokes the right to self-defence among others, and to this end they cite Judge Stephen Schwebel’s dissenting opinion in the Nicaragua case that; “Article 51 does not say, if and only if an armed attack occurs” (Arend, 2003: 93). They then factor in technological advances in weapons delivery systems and increased destructiveness of modern weapons so as to allow the right of pre-emptive self-defence more or less as articulated in the Bush Doctrine (Doyle, 2008: 18; Arend, 2003: 97). 

The restrictionist view seems to be the one that is supported by international law as it currently stands. The condemnation by both United Nations General Assembly and the Security Council of the Israeli pre-emptive attack on the Iraqi Nuclear Reactor at Osirak in 1981 is evidence that the expansive interpretation does not find support in international opinio juris (Gray, 2010: 628). With regards the concern that the current weapons of mass destruction and the changed environment since 9/11 require a different approach than the restrictionist view permits, this concern was dismissed too. Gray (2010: 631) observes that; “a UN High-level Panel of Experts was set up to respond to the new challenges to the collective security system after 9/11; in its Report of December 2004 it accepted the controversial right of anticipatory self-defence, but firmly rejected the doctrine of pre-emptive self-defence. It said that there is no right to self-defence if the attack is not imminent.” Thus, the counter-restrictionists’ arguments are not supported by existing law. 

Conclusion: 

This paper has attempted to answer the question whether a customary legal rule permitting pre-emptive self-defence has emerged as an exception to the prohibition to the use of force in international law. Proponents of the view that it has, claim that it has always existed as evinced by the Caroline case and, was not modified or replaced when the UN Charter came into force because Article 51 refers to the “inherent right” to self-defence. Further, they say it is urgent that this rule be recognized because the new threats from Weapons of Mass Destruction and the myriad threats from new actors demand that Article 51 be expansively interpreted. In this essay, such a position has been said to be disingenuous since the Caroline case which they cite actually set the strict criteria of imminency, necessity and proportionality. It also does not reflect customary law because there is neither widespread and consistent state practice nor opinio juris. Israel’s pre-emptive attack on Iraq in 1981 was rejected by the majority of states. The Bush Doctrine was also rejected by the UN and even the United States and its allies did not invoke this doctrine of pre-emptive self-defence when they invaded Iraq in 2003. Because customary law requires widespread state practice and acceptance, any multilateral forum that objects to this doctrine means it will not crystallize. This has been the case with pre-emptive self-defence. Those who are arguing that this rule exists are not arguing on the basis of law as it exists (lex lata) but perhaps with a view to either what the law ought to say (lex ferenda) or on the basis of military or political exigencies (opinio necessitatis).

This is not a good look: during an all nighter at the Durham University Library, this would be around 04:30 am

Bibliography: 

Arend, Anthony (2003), ‘International Law and Pre-emptive Use of Military Force.’ The Washington Quarterly, 26: 89 – 103. 

Brownlie, Ian (2008), Principles of Public International Law. Oxford: Oxford University Press. 

Cassese, Antonio (2005), International Law. Oxford: Oxford University Press. 

Dixon, Martin (2007), Textbook on International Law. Oxford; Oxford University Press. 

Doyle, Michael (2008), Striking First: Pre-emption and Prevention in International Question. New Jersey: Princeton University Press.

Franck, Thomas (2002), Recourse to Force: State Action Against Threats and Armed Attacks. Cambridge: Cambridge University Press. 

Gray, Christine (2010), ‘The Use of Force and the International Legal Order,’ in Malcolm Evans (ed.), International Law. Oxford: Oxford University Press, 615 – 647.  

International Court of Justice, Statute of the Court, http://www.icjcij.org/documents/index.php?p1=4&p2=2&p3=0&#CHAPTER_II  Accessed 20 March 2014. 

Klabbers, Jan (2013), International Law. Cambridge: Cambridge University Press. 

Malanczuk, Peter (1997), Akehurst’s Modern Introduction to International Law. London: Routledge.

Ruys, Tom (2011), 'Armed Attack' and Article 51 of the UN Charter: Evolutions in Customary Law and Practice. Cambridge: Cambridge University Press. 

Sands, Phillippe (2012), Operationalizing The UN Charter Rules on the Use of Force,’ in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law. Oxford: Oxford University Press, 343 – 348. 

The White House, (September 2002) The National Security Strategy of the United States of America, http://www.state.gov/documents/organization/63562.pdf Accessed 20 March 2014. 

Thirlway, Hugh (2010), ‘The Sources of International Law,’ in Malcolm Evans (ed.), International Law. Oxford: Oxford University Press, 95 – 121. 

UK Parliament, (November 2013), Intervention: When, How and Why? http://www.publications.parliament.uk/pa/cm201314/cmselect/cmdfence/writev/intervention/ int10.htm Accessed 20 March 2014. 

Van Den Hole, Leo (2003), ‘Anticipatory Self-Defence Under International Law.’ American University International Law Review, 19: 69 – 106.   

Vanoda Kupunza Musha Wavo Havashayi Vabatsiri

Pandaibva kuBrussels ndichienda kunoona shamwari yangu mukuru mukuru wemauto eNATO kuMons munyika yeBelgium.

na Kudakwashe Kanhutu 

“Sic semper tyrannis” (ngazvidai kuvadzvanyiriri kwenguva dzose) – vaJohn Wilkes Booth vapedza kuuraya mutungamiriri we America, President Abraham Lincoln. 

Ini ndinoona kunge kazhinji kacho, zvinenge zvirinani kuti vanhu vemunyika imwe varemekedzane vega pane kurwisana, sezvo kana hondo yatanga hapana anokwanisa kuzoimisa nyangwe musisaide. Kazhinji kacho munhu anenge achinzi mudzvanyiriri, tikanyatso zvicherechedza, anenge asiri mudzvanyiriri semanyorerwe aanenge avekuitwa nevekunze vanenge vaine zvinangwa zvavo zvekuti vanhu vemunyika imwe varwisane. Tikatarisa vaAbraham Lincoln vakaurayiwa nekuti vakanzi mudzvanyiriri navaBooth, tinoona kuti vakange vasiri mudzvanyiriri. Shoko rekuti mudzvanyiriri rinoshandiswa neavo vanenge varikudawo masimba kana kuti vane ruvengowo rwavo.

Chakakosha apa ndechekuti tirangarire kuti kwenguva nenguva hapana hurumende inofadza vanhu vese, saka ngatiregei kuti tikangonzwa kuti munhu mudzvanyiriri tobva tatongoti ichokwadi. Mashoko avaDunn anotiyeuchidza izvi pavakati: “kuva muhurumende kana kuwirirana nehurumende kunofananidzwa nekupusa uye nehuori, asi avo vanenge vachirwisa hurumende vobva vanzi vachenjeri, uye gwara ravo rakarurama.” Nekunzwa mashoko akadai, ndinofunga kuti vanhu venyika yeSyria vangadai vaine hupenyu huri nani pane hwavari kurarama parizvino dai vasina kungoita dzimu tevera yavakaita. Kuremekedzana nekutaurirana kunokunda kumhanyira hondo muchifunga kuti vekunze vachakubatsirai.

Mukutaura kwedu nezve matongerwa enyika nevatungamiriri vemauto ekuRwanda neveSouth Africa, takawirirana kuti nyangwe zvazvo mauto achifanirwa kuremekedza ruzhinji rwevanhu munyika, ruzhinji harufanirwewo kukanganwa kuti mauto vanhu vehondo. Zvinova ndizvo zvandinofunga kuti ndozvakaitika munyika yeSyria nenyika yeLibya. Mauto emo anenge aisaremekedza vanhu, uyewo vanhu vakakanganwa kuti mauto vanhu vehondo, basa ravo nderekuuraya uye vanorigona. Handisipo pakuda kushoropodza vanhu kana kuti mauto panguva ino, ndirikuda kungoedza kuratidza kuti vanhu vemunyika imwe vakanetsana, vekunze havana hany’a navo saka vanobatsira kuti vanhu vaya vaurayane, ivo vekunze vokwanisa kutora upfumi wenyika iya iri kuzvirwisa.

Chatinoona panyaya iyi ndechekuti, veLibya vakawana rubatsiro kubva kune vekunze, asika rubatsiro urwu rwainge rwusiri rwemoyo muchena, vekunze vakauya nekuti vaiva nedaka ravo ravaive naro nemutungamiriri weLibya, uye zvaive nyore kupindira sezvo vaizowana upfumi hweLibya panopera hondo. Kunyangwe zvazvo zvakadaro, kurwisana hakuna kupera, vazhinji vavekurarama hupenyu hwekutya nekuti munhu ega ega ave kufamba nepfuti, uye nyika haisina mutemo. Avawo muSyria vainge vafunga kuti vachawana rubatsiro kubva kunze sezvakaitwa muLibya havana kurwuwana sekuti vekunze vakatya kuti ndege nevatyairi vadzo vaipfurwa vakapindira muSyria. Saka vakangopuhwa zvombo kuti vaurayane vega imomo. Anezenge akunda ndiye achazo kwereteswa mari yekuvaka nyika yaparara kudai. Chikwereti chacho chinoreva kuti Syria inenge yave muhuranda hweuyo aikweretesa mari.

Saka zvese izvi zvinotiratidza kuti, ukada kupunza musha wako, vazhinji vanouya kuzokubatsira nekuti zviri nyore kupunza pane kuvaka.

Kudakwashe Kanhutu
BA (Hons) Conflict, Peace & Security. University of Kent, Canterbury.
School of Politics and International Relations.  

MSc Defence, Development & Diplomacy. Durham University.
Durham Global Security Institute (DGSi)

+447775237379
Connect with me on Facebook: www.facebook.com/kanhutu

"A wise man proportions his belief to the evidence" - David Hume.

The Tensions Between Sovereignty and Human Rights From Where I Am Standing

Are certain rules of international law hierarchically superior to others? Discuss with reference to jus cogens, obligations erga omnes and Article 103 of the UN Charter.

International Court of Justice, The Hague.

by Kudakwashe Kanhutu

Introduction:

The question of whether a hierarchy of rules exists in international law arises controversially due to the fact that the main subjects of international law; states, ordinarily admit to no higher arbiter than themselves. In international relations, this is the concept of sovereign equality, which means, inter alia, states can only be bound by rules they have consented to.[1] To be sure, a hierarchy of rules can exist quite uncontroversially, for instance, in a multilateral treaty where ‘the states that established that norm have so intended by stipulating that parties to that treaty shall not consent to any obligations contradicting that treaty.’[2] Controversy only arises where rules are said to be so superior that they can bind, as jus cogens rules are said to do, even states that have not consented to the treaties establishing those rules. Such rules then, can be said to affect the ordinary way states are bound by laws and, further to that, these rules create mandatory duties for all states.[3] This paper will explore whether these hierarchically superior rules in fact exist, and if they do, how they come to attain such a status and what obligations they raise for states. The discussion will start with a look at the main issues that arise in the hierarchy of norms debate. Attention will later turn to sources of international law, to see what rationale there is in the sources that validates or refutes this concept of hierarchically superior rules. In this paper, obligations erga omnes will largely be viewed as a logical consequence of jus cogens, while Article 103’s significance for this essay is that it bars any signatories of the UN Charter from signing onto treaties that conflict with the Charter.

The Significance of Jus Cogens, Obligations Erga Omnes and Article 103 of the UN Charter in Discussing a Hierarchy of Norms:

Before we proceed to the sources debate, it is necessary, by way of definitions, to posit a distinction of the issues that forms an integral part of this discussion. Jus cogens means ‘compelling law,’ it is a category of rules which are said to be peremptory and non derogable, which then gives them hierarchical superiority to other norms.[4] The literature seems to hold the view that the concept ofjus cogens is accepted to exist in general international law but there are debates on its content.[5] There is agreement on the concept but difficulties arise in listing which norms are jus cogens and how they come to attain that status. Case law affirming jus cogens is also very sparse owing to the fact that the ICJ has taken much caution in pronouncing on jus cogens. For example, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons[6] the Court spoke of ‘certain fundamental rules of humanitarian law applicable in armed conflict as being intransgressible principles of international customary law, but found there was no need to pronounce on the issue of jus cogens.’[7] The very fact that the ICJ has mostly prevaricated on jus cogens, does raise doubts as to the constancy of these norms. Indeed, these norms are not without their doubters. The doubters, however, do not view the norms as a complete fiction, they may even see the logic and utility of peremptory norms. Instead, the general argument relates to the paradox of the same norms – which are essential to international order – being at the same time a potential threat to the same system of international law. It is important to remember that states jealously guard the traditional notion of sovereignty, and the outstanding, possible negative effect of jus cogens is to erode sovereignty beyond acceptable levels. This is because taking away the states’ sovereign right to make laws must have, in the final analysis, adverse implications for international public order. It is no mitigant to say that another criteria of jus cogens is that they should be accepted by the international community as a whole; the ‘international community as a whole’ has never been an absolute term. So, the key tensions that still arise vis-à-vis state sovereignty and jus cogens seem to be between rules of human rights norms and those that ensure stability in the system such as state immunity rules.

Evidence of this tension can be seen in Al Adsani v. Kuwait,[8] Caplan notes that ‘the Court dismissed the suit for lack of jurisdiction, holding that Kuwait was entitled to foreign state immunity under the UK State Immunity Act, 1978.’[9] Sovereignty concerns in that case would seem to have effectively trumped prosecution of the crime of torture. The argument that state sovereignty prevailed over jus cogens is affirmed in the dissenting opinions in Al Adsani v. United Kingdom.[10] The dissenting opinion of Judges Christos Rozakis and others stated that ‘The acceptance… of the jus cogens nature of the prohibition of torture entails that a state allegedly violating it cannot invoke hierarchically lower rules (in this case, those on state immunity) to avoid the consequences of the illegality of its actions.’[11] Still, the narrow 9 – 8 decision serves as a sign of the potency of existing tensions between jus cogens and sovereignty considerations.[12] Indeed, the impact of these norms on municipal legislation was affirmed by the ICTY in the Furundzija Case.[13] 

None of this should be taken to imply that hierarchically superior norms do not exist. The point is that they create difficulties for international law. The apt simile used in relation to their emergence and effects on international law is, invariably, that of the opening of Pandora’s box. Bianchi says they profoundly ‘affect the structure and functioning of international law.’[14] Pursued to their logical consequences, peremptory norms create problems for international law such as the one identified by Linderfalk in his article, which also incorporates Pandora’s Box in its title. Linderfalk observes that even the UN Charter contradicts itself by allowing Article 2 (4) (a jus cogens rule) to be derogated from in Article 51. Jus cogens rules, strictly observed, cannot allow a derogation whatever the circumstances that the state finds itself in, least of all, premeditated derogations such as those envisaged by Article 51.[15] A further point he makes is that, logically therefore, Article 51 has been a nullity for many years if a strict reading of jus cogens applies as stated in Article 53 of the Vienna Convention on the Laws of Treaties.[16] Note should be made here that Article 2 (4) is one of the few times that the ICJ has affirmed a jus cogens norm. This is to be found in its ruling in the Nicaragua v. United States Case.[17] So even where jus cogens can be positively identified, problems still exist. These are some of the issues surrounding peremptory norms, obligations erga omnes are relatively uncontroversial if viewed as a corollary of jus cogens; if we simply say, if a norm is so important to the international community, then it is every state’s concern to protect that norm. 

The term erga omnes means ‘flowing to all,’ thus owing to their nature, jus cogens norms create mandatory duties for all states.[18] Every state owes it to the international community to avoid the breach of jus cogens norms through treaty or deed. Furthermore, states should take action to punish or suppress the breach of these norms. In its Advisory Opinion in the Barcelona Traction, Light and Power Co. Case[19] the Court affirmed these obligations. The Court made a distinction between ‘… obligations of a state towards the international community as a whole, and those arising vis-à-vis another state in the field of diplomatic protection. By their very nature the former are the concern of all states. In view of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes.’[20] The Court then lists where such obligations derive from, and suffice it to say, all the listed norms that create obligations erga omnes have been touted in international law as jus cogens norms. What arises as an issue is an uncertainty on how third parties can invoke erga omnes when, in the Reparations for Injuries Suffered in the Service of the UN Case,[21] the Court affirmed the principle that ‘only the party to whom an international obligation is due can bring a claim in respect of its breach.’[22] The question is, how then can third party states invoke Article 53 and 64 of the VCLT should a treaty be signed that breaches jus cogens? Perhaps here, international law is hopeful the situation may never arise.

Then there is the less controversial superior rules created by the UN Charter. Article 103 of the UN Charter is significant for this paper because it is a prime example of the earlier mentioned superior rule which exists because parties to a treaty agreed it to be so. This article states that ‘in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’[23] The very notion of a rule that invalidates other rules, should a conflict arise between them, is a sure sign of hierarchical superiority. Article 103 places Charter obligations above any other treaty obligations as ‘it stresses the peremptory character of the Charter in relation to any other international treaty.’[24] Also, the UN Charter is said to hold a special legal position due to the universal nature of its membership.[25] As all the main subjects of international law are members of the UN, it logically follows that, Article 103, by placing the Charter peremptorily to any other rules, creates mandatory duties for all the 192 states. Hossain observes that a reading of the UN Charter reflects no obvious conflict with jus cogens norms.[26] A fair observation, as most of the widely accepted peremptory norms, such as prohibition against genocide are the Charter’s central concern. The effect being that the Charter is a significant referent for all rules that may be thought of as jus cogens.

Sources of International Law and Peremptory Norms:

As observed in the introduction, states are simultaneously legislators and subjects of international law.[27] It is states who decide through deed or treaty which rules bind them. The most authoritative text on sources of international law is Article 38 of the 1969 Vienna Convention on the Law of Treaties. While this Article is a list of sources the ICJ relies on in deciding cases, it is also a restatement of what states have already come to acknowledge as authoritative.[28] These sources are treaties, custom, general principles of law, judicial decisions and scholarly writings. The important thing to note here is that states have to consent to these rules before they can be bound by them. There has to be a form of consent, either explicitly, by ratification of a formal treaty or, through opinio juris where customary law is concerned. Peremptory norms seem to have the character of forcing states to be bound by them regardless of not having ratified the treaty these rules exist in. It is this erosion to state sovereignty along with the mandatory duties they invoke which make peremptory norms controversial. Cherif Bassiouni even raises the question whether jus cogens is a source of law in itself.[29] There are also concerns over what Rene-Jean Dupuy referred to as the ‘positivization of natural law,’[30] in reference to the fact that Article 53 of the Vienna Convention on the Law of Treaties affirms jus cogens without further expatiation on what sources of law the norm derives from. The defective nature of Article 53 of the VCLT as a definition of jus cogens is captured by Jimenez de Arechaga who opined that; this description of jus cogens fails to apprehend its real essence, since the definition is based on the legal effects of a rule and not on its intrinsic nature; it is not that certain rules are of jus cogens because no derogation is permitted; rather, no derogation is allowed because they possess the nature of jus cogens.[31]

Clarity is lacking in the definition of jus cogens offered by Article 53 and, importantly, the Article did not list these norms or their sources. It is left then to international lawyers to argue the sources and character of a peremptory norm. Andre de Hoogh proposes that peremptory norms have their roots in ordinary primary rules of international law.[32] His conclusion is that emergence of a peremptory norm is preceded by the creation of a rule of customary international law.[33] For this paper, it will be sufficient to accept the jus cogens norms listed in the legal literature, which are; prohibitions against aggression, genocide, crimes against humanity, war crimes, piracy, slavery and torture. What these have in common is as noted the 1993 decision of the Hungarian Constitutional Court that ‘…war crimes and crimes against humanity are jus cogens norms of international law, because these crimes threaten mankind and international co-existence in their foundations. A state refusing to undertake this obligation may not participate in the international community.’[34] Indeed these prohibitions, which are essential for the preservation of the twin purposes of international law, should be viewed as peremptory norms. The tensions between human rights and sovereignty, which this paper has identified as significant, can be mitigated by following the proposals of ‘responsible sovereignty’ which the Yale Law School advocates.

A Fiduciary Theory of Jus Cogens?

The Yale scholars, Evans J Criddle and Evan Fox – Decent defend the position that, properly conceived, no tensions need arise between jus cogens norms and sovereignty. They note that the leading traditions such as positivism, natural law and public order’s approaches to jus cogens fail to give a reliable method of affirming those rules. Their critique of, for example, public order theories runs like this; according to public order theories, peremptory norms are those ‘that serve one of two functions; they either safeguard the peaceful co-existence of states as a community or honour the international system’s core normative commitments.’[35] Which is all very good, the problem for these authors is that public order theories do ‘not address the paradox at the core of the human rights discourse: international law’s seemingly contradictory commitments to state sovereignty and individual dignity.’[36] As been noted in this paper earlier, they too find that the European Court of Human Rights in Al Adsani v. United Kingdom rejected the argument that jus cogens violations would deprive a state of sovereign immunity.[37] This, they rightly believe, fuels scepticism about the jus cogens concept itself and impedes its development and implementation.[38]

Their argument put simply is that ‘jus cogens norms are constitutive of a state’s authority to exercise sovereign powers domestically and to claim sovereign status as an international legal actor.’[39] In what looks closely like the notion of responsible sovereignty, they propose the fiduciary theory of jus cogens. In this theory, states’ claim to sovereignty relies on fulfilment of fiduciary obligations. The state is placed to its subjects as if in a parent – child relationship, where children do not have to do anything to earn the provisions and comfort from their parents. While the parents’ status in this relationship depends on providing for their children. For them, sovereignty should be dependent on a similar principle as their theory seeks to show that; ‘peremptory norms arise from a state – subject fiduciary relationship rather than from state consent.’[40] This they believe circumvents the problem created by state consent as seen in the Al Adsani v. United Kingdom ruling. Relying on Prosecutor v. Furundzija they show that the ruling there said ‘prohibition against torture is peremptory based on the importance of the values it protects rather than state consent.’[41] In the same vein they find fault with Article 53 of the VCLT’s consensus driven criterion for identifying peremptory norms. In sum their argument is that the perceived tension between jus cogens and sovereignty can be eased by the fiduciary theory in as far as jus cogens have to be taken as the criterion of state sovereignty and not an exception.[42]

Conclusion:

The question of whether there exists a hierarchy of rules in international law is a very intractable one. This paper has argued that where peremptory norms have been created by a treaty that states have freely consented to, these rules are relatively uncontroversial. Article 103 of the UN Charter has been said to be an example of a rule that sets the UN Charter’s rules as superior to any other treaties if they conflict with the Charter. The very notion of a rule that invalidates other rules has been accepted in this paper as a sign of that rule’s hierarchical superiority. This was said to be palatable to states in as far as it does not impinge on the traditional notion of sovereignty, which has been argued to be still very important for international relations. The hierarchy debate becomes intractable where states are said to be bound by jus cogens norms from which no derogation is permitted regardless of consent, and furthermore, these norms create mandatory duties for all states. In this paper these mandatory duties have been largely treated as an uncontroversial, logical consequence of jus cogens.

A further point that has been made here is that these peremptory norms, which are important for international law are also, paradoxically, a potential threat to the same system. There is a palpable trepidation in the international system of eroding sovereignty beyond an acceptable level. It is this fear which has seen jus cogens remain largely rhetorical. Evidence of this can be seen in the caution exercised by the ICJ in pronouncing definitively on jus cogens. Even Article 53 of the VCLT, which is accepted to be an authoritative definition of jus cogens, avoided listing which norms have that status, preferring to talk instead about effects. This paper has also suggested a fiduciary theory of jus cogens as a mitigant for the tensions between sovereignty and jus cogens norms. This author takes the view that peremptory norms in fact exist, but they create controversy in their application.

BIBLIOGRAPHY:

BOOKS:

Arend A C & Beck R J, International Law and the Use of Force (Routledge 1993)

Brown C and Ainley K, Understanding International Relations (first published 1997, Palgrave Macmillan 2009)

Cassese A, International Law (Oxford University Press 2005)

 De Hoogh A, Obligations Erga Omnes and International Crimes (Kluwer Law International 1996)

Jorgensen N. H.B, The Responsibility of States for International Crimes (Oxford University Press 2000)

Lowe V,  International Law (Oxford University Press 2007)

Orakhelashvili A, Peremptory Norms As International Public Law (Oxford University Press 2006)

Simma B. The Charter of the United Nations: A Commentary, Second Edition, Volume 1. (Oxford University Press 2002)

JOURNALS:

Bianchi A, ‘Human Rights and the Magic of Jus Cogens’ EJIL (2008), Vol 19, No 3.

Caplan L M,  ‘State Immunity, Human Rights and Jus Cogens: A Critique of the

Normative Hierarchy Theory’ AJIL [2003], Vol 97

Criddle E J & Fox – Decent E, ‘A Fiduciary Theory of Jus Cogens’ YJIL (2009)  Vol. 34  No 331   

Hossain K, ‘The Concept of Jus Cogens and the Obligation Under the UN Charter,’ SCJIL (2005) Vol 3

Linderfalk U, ‘The Effects of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About The Consequences’ EJIL (2007), Vol. 18 No 5.

McGregor L, ‘Torture and State Immunity, Deflecting State Impunity, Distorting Sovereignty’ EJIL (2008), Vol 18 No 5

Salcedo  J A C, ‘Reflections on the Existence of a Hierarchy of Norms in International Law’ EJIL [1997] 8

WEBSITES:

Article 103 Contents, http://untreaty.un.org/cod/repertory/art103/english/rep_supp4_vol2-art103_e.pdf, accessed 20 March 2012.

Bassiouni C, International Crimes, Jus Cogens and Obligatio Erga Omnes. (1997)http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1016&context=lcp accessed 20 March 2012

CASES:

Al-Adsani v. Kuwait, [1996] 107 ILR 536

Al Adsani v. United Kingdom App no 35763/97 (ECHR 21 November 2001)

Nicaragua v. United States (Merits), 81 AM J. INT’L. L. 77 (1987).

Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5)

Decision of the Constitutional Court No 53/1993. (X.13.) AB

ICTY: Prosecutor v. Furundzija, IT-95-17/1-T (Dec. 10, 1998)

Legality of the Threat or Use of Nuclear Weapons Case, ICJ Advisory Opinion of 8 July 1996

Nicaragua v. United States (Merits), 81 AM J. INT’L. L. 77 (1987).

Reparations for Injuries Suffered in the Service of the UN Case, ICJ Advisory Opinion of  11 April 1949