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Law, Power, and Principles

Published online by Cambridge University Press:  20 January 2017

Extract

Daniel Bethlehem’s proposed principles grapple bravely with the familiar tension between law and power, between the aspirational and the real, between states’ words and irreconcilable acts. His principles “are proposed with the intention of stimulating a wider debate on these issues.” With that invitation in mind, I offer this thought: while Bethlehem posits a need for objectivity—by which he appears to mean neutral principles indifferent to power disparities—his proposed principles nonetheless substitute the opinio juris of the powerful for the practice of all, and they aim to bridge a division among states that he supposes merely to be a division among publicists.

Type
Notes and Comments
Copyright
Copyright © American Society of International Law 2013

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Footnotes

*

Of the Board of Editors.

References

1 Bethlehem, Daniel, Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors, 106 AJIL 769, 775–77 (2012)CrossRefGoogle Scholar.

2 Id. at 773.

3 “An essential element of any legal principle,” he writes, “is that it must be capable of objective application and must not be seen as self-serving—that is, in the interests of one state, or small group of states, alone.” Id. at 774.

4 Id. at 770.

5 Id. His principles appear to derive from discussions among powerful states that use force frequently, not from discussions with those that do not, let alone states that are targets. “They have... been informed by detailed discussions over recent years with foreign ministry, defense ministry, and military legal advisers from a number of states who have operational experience in these matters.” Id. at 773.

6 Id.. at 771.

7 See, e.g., Farhan Bokhari, Pakistan Protests After US Drone Strike, Fin. Times, May 5, 2012, at http://www.ft.com/intl/cms/s/0/b4a8cc3c-96c0-11e1-847c-00144feabdc0.html#axzz2Aiw3gIHE (“‘Pakistan has consistently maintained that these illegal attacks are a violation of its sovereignty and territorial integrity, and are in contravention of international law,’said Pakistan’s foreign ministry in a statement... “); Ethiopia Attacks Rebel Targets in Eritrea, Reuters, Mar. 17, 2012, at http://www.reuters.com/article/2012/03/17/ethiopia-eritrea-attack-idUSL5E8EH07N20120317 (“Ethiopian troops have carried out more attacks on Ethiopian rebels inside Eritrea on Saturday, a day after Eritrea urged United Nations action against Ethiopia for a previous attack inside its territory.”); Jane Perlez & David Rohde, Pakistan Pushes Back Against U.S. Criticism on Bin Laden, N.Y. TIMES, May 3, 2011, at http://www.nytimes.com/2011/05/04/world/asia/04pakistan.html?pagewanted=all (“[T]he Pakistani government lashed out at the United States... for the raid that killed Osama bin Laden, saying that the United States had made ‘an unauthorized unilateral action’ that would be not tolerated in the future.”); Simon Romero, Troops Mass at Colombian Borders in Crisis over Killing of Rebel, N.Y. Times, Mar. 3, 2008, at A9 (noting how “Colombian forces killed a senior guerilla leader at a jungle camp in Ecuador,” causing “President Rafael Correa of Ecuador [to] call[] Colombia’s action a violation of Ecuador’s sovereignty”).

8 See, e.g., Bethlehem, supra note 1, at 773 (“There is little scholarly consensus on what is properly meant by ‘imminence’ in the context of contemporary threats.”).

9 Id.

10 Id.

11 It is an “indispensable requirement” for custom that state practice be “both extensive and virtually uniform.” North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, para. 74 (Feb. 20).

12 see Michael J. Glennon, The Fog of Law: Pragmatism, Security, And International Law 77–97 (2010) (describing how international legal norms can fall into desuetude in the face of contrary state practice).

13 Bethlehem indicates that he undertakes to formulate principles “that apply, or ought to apply,” Bethlehem, supra note 1, at 773, seemingly acknowledging that his principles mix the lex ferenda with the lex lata, but he then proceeds to suggest that they represent “the contours of the law,” id., only to imply later, in the savings clauses of principles 14 and 15, that his principles might be in conflict with the United Nations Charter and customary international law. See id. at 777, princs. 14–15.

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