UBC professor guides ordinary citizens through the complexities and evolution of global authority
International law is in a difficult field, especially regarding laws dealing with the use of force. When the U.S. chose to ignore Security Council regulations and go into Iraq without UN endorsement, the ground had already been set for what appears to be a precedent for deliberate unilateral military action when countries are faced with what they perceive as terrorist threats against them.
But the UN law governing the use of force is fraught with ambiguities, which allows countries to interpret it in ways that suit their interests. Yet in this era where there is only one superpower, it is crucial that ordinary citizens understand these laws because world opinion plays an important role in forcing nations to comply with international law. Michael Byers' new book War Law: Understanding International Law and Armed Conflict offers an easy-to-understand peek into these complex laws. He traces international law from 1859 to the present, and also gives readers a view of the influence of the U.S. on the evolution of these laws. A lawyer and political scientist, Mr. Byers holds the Canada Research Chair in global politics and international law at the University of British Columbia.
Embassy spoke to Mr. Byers on some of his thoughts on international law. The following is an edited transcript of the interview.
Q: In your book you mention that Article 51 of the UN Charter is the subject of many debates. For example, whether a country can attack another because terrorists are located in the other country, the way the U.S. attacked Afghanistan after 9/11 or Sudan after the bombing of the U.S. embassy in Nairobi or even the targeted killing of Palestinian leaders by Israel. What are the consequences for international law in this seemingly ambiguous article?
A: The point is that any legal provision will be open to some debate and possible change over time as a result of various kinds of pressures, including political pressures and in this case, military pressures. We are in a period of contests over the limits of the right of self defence and international law. So much of what's happening in international affairs is centered on this seemingly technical legal debate, whether it's as you mentioned, the war in Afghanistan, the war in Iraq, targeted killings in the occupied territories or the possibility of war in Iran next year. This is very much at the centre of international relations and it is actually a large part of the reason I wrote the book because it is important for non-lawyers, non-specialists to understand the outlines of the legal debate because they are so important.
Q: When it comes to executing UN regulations by member states, to what extent do competing interests among Security Council members affect that when you look at defining terms like genocide, for instance in Darfur?
A: The Security Council has been far more effective in the last 15 years than it was during the Cold War. In a sense, there are still competing interests within the Council, among the five permanent members, but there's much more commonality of interests than there had been for so many decades. We are seeing, still, despite the concern about the Bush administration, considerable agreement within the Council on the freezing of potential terrorist assets, the extension of money laundering laws, the granting of jurisdiction to the International Criminal Court in Darfur. The Security Council is relatively active, but obviously still unable to exercise the comprehensive role that the drafters of the Charter would have envisaged in 1945.
So we don't see military action to stop the atrocities there, we don't see the Security Council, shall we say, dealing in a comprehensive multilateral way with some of the larger challenges of the world, if and when those possible Security Council actions are seen as impeaching on superpower interests.
To give you another very clear example, the war in Afghanistan should have been a Security Council authorized war in 2001. But the United States chose not to make it that and so we do see the continual tension between national interests and multilateral action. But I'm still an optimist in the sense that it's still so much better a situation than it was in the Cold War.
Q: But with this stretching, pulling and testing of the limits of international law, what will the future be?
A: The future is uncertain, which is what makes it interesting. International law has always changed in response to geopolitical change and we are now in a new geopolitical era, with the era of a single superpower, a superpower that has finally began to act like one since Sept. 11, 2001. So there are profound pressures on the system. And the system will change and it's important, as it changes, for governments and people around the world to recognize that there is a lot at stake and to understand how this change occurs and to recognize as well that in a complex inter-dependent world, the changes that result don't need to be simply at the dictate of the United States, but they can be changes that are influenced by other countries and other kinds of actors.
Q: But the United States seems to be getting away with it?
A: The United States gets away with a lot, but it doesn't get away with everything. For instance, the Bush Doctrine of an extended right of pre-emptive self defence has not become international law. To give you another example, the U.S. went to war with Iraq against the wishes and legal opinion of many countries. It is now paying a very substantial price for having ignored the opinions of others, in terms of the fact that it is now carrying most of the financial and human burden of the occupation, whereas in 1991, France and Germany paid the costs of the Gulf War.
Q: But these unilateral actions by the U.S., don't they act as an example for other countries to copy?
A: Oh absolutely! I am very disturbed by the effect of the United States on the system. But at the same time, I am hopeful that these other countries respond to U.S. action and recognize the importance of international law, that the essential aspects of the system will be preserved and indeed strengthened.
Q: There have been calls by some world leaders that the UN Charter should be amended to allow a right of pre-emptive unilateral action. What do you think of this?
A: You are speaking of course of John Howard, the Australian Prime Minister. I think the proposition has zero chance [of being approved by the UN]. It should not happen because we already have a mechanism for the pre-emptive use of force and that mechanism is chapter seven of the UN Charter. The Security Council doesn't use that power very often because the pre-emptive use of force is fraught with so much uncertainty and potentially negative consequences, including the problem of unreliable intelligence which we saw the Americans caught up in before and during the Iraq war.