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Letting the Exception Prove the Rule

Published online by Cambridge University Press:  28 September 2012

Michael Byers
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Extract

It is unlikely that George W. Bush feels constrained by international law when deciding whether to use military force abroad. Nevertheless, many of the United States' allies are reluctant to cooperate with and participate in military actions that cannot reasonably be justified under international law. And supportive allies, while perhaps not strictly necessary to the United States in its recent and foreseeable military campaigns, do make the military option easier to pursue. A war against Iraq would be difficult without access to bases and airspace in countries as diverse as Turkey, Saudi Arabia, Germany, and Canada. For this reason, at least, it would seem to be worth the president's while to adhere to international law where possible and, where this is not possible, to seek to change the rules.

International lawyers in the Department of State, together with lawyers in other parts of the U.S. government, have excelled in shaping the law to accommodate the interests of the United States. One example, though by no means the only one, concerns the response to the September 11, 2001, terrorist attacks.

Type
Articles
Information
Ethics & International Affairs , Volume 17 , Issue 1 , March 2003 , pp. 9 - 16
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2003

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References

1 For a more detailed analysis, see Byers, Michael, “Terrorism, the Use of Force and International Law after 11 September,” International & Comparative Law Quarterly 51 (2002), p. 401CrossRefGoogle Scholar.

2 Schultz, George P., “Address to the National Defense University, Washington, D.C., January 15, 1986,” International Legal Materials 25 (1986), p. 206Google Scholar.

3 See Jennings, R. Y., “The Caroline and McLeod Cases,” American Journal of International Law 32 (1938), p. 82CrossRefGoogle Scholar.

4 “Remarks by President George W. Bush at 2002 Graduation Exercise of the United States Military Academy, West Point, New York,” June 1, 2002; available at http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html.

5 “Remarks by President George W. Bush to Troops and Families of the 10th Mountain Division, Fort Drum, New York,” July 19, 2002; available at http://www.whitehouse.gov/news/releases/2002/07/20020719.html.

6 See, generally, Byers, Michael, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999CrossRefGoogle Scholar).

7 “The National Security Strategy of the United States of America September 2002,” p. 15; available at http://www.whitehouse.gov/nsc/nss.pdf.

8 See Byers, Michael, “Terrorism, the Use of Force and International Law after 11 September,” pp. 408–409Google Scholar, n. 1.

9 See Byers, Michael and Chesterman, Simon, “Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law,” in Holzgrefe, J. L. and Keohane, Robert O., eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003Google Scholar).

10 See “Draft articles on Responsibility of States for Internationally Wrongful Acts”, Report of the International Law Commission on the Work of its Fifty-third Session, Article 39; available at http://www.un.org/law/ilc/texts/State_responsibility/responsibility_articles(e).pdf.