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  The second Bush war and international law — Notes  

  Vol IV : issue 1

  S. Diwakar
  Hosbet Suresh
  V.S. Mani
  A.S. Panneerselvan
  Manik Bandopadhyay
Gurdev Singh Ropana
  Only in Print

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V.S. Mani

1. This colloquy was referred to by Judge Hutcheson in his famous judgment in Continental Box Co. Inc. vs. National Labour Relations Board, 113 F.

2. See R. P. Anand, The United Nations and the Gulf Crisis, New Delhi, 1994; V. S. Mani, ‘The Role of Law and Legal Considerations in the Functioning of the United Nations’, Indian Journal of International Law, vol. 35, 1995; and Nigel D. White ed., Collective Security Law Dartmouth, UK, 2003.

3. V.S. Mani, ‘Audi Alteram Partem: Journey of A Principle from the Realms of Private Procedural Law to the Realms of International Procedural Law’, Indian Journal of International Law, vol. 9, 1969.

4. For an elaborate discussion of the legality of resolution 678 (1990), see R. P. Anand, United Nations and the Gulf Crisis, New Delhi, 1994.

5. By resolution 661 of August 6, 1990, the Council affirmed through its sixth preambular paragraph, "the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter."

6. ICJ Reports, 1986. This related to allegations by Nicaragua against the US involving violations of the principles of prohibition of force and non-intervention and other principles including law of the sea.

7. Ibid. p. 103, para 195. Discussing the legality of ‘anticipatory self-defence’ — a fashionable name for ‘pre-emptive attack’ — Albrecht Randelzhofer’s commentary on Article 51 of the UN Charter says: "An anticipatory right of self-defence would be contrary to the wording of Art. 51 (‘if an armed attack occurs’), as well as to the object and purpose, which is to cut to a minimum the unilateral use of force in international relations. Since the (alleged) imminence of an attack cannot usually be assessed by means of objective criteria, any decision on this point would necessarily have to be left to the discretion of the State concerned. The manifest risk of an abuse of that discretion which thus emerges would de facto undermine the restriction to one particular case of the right of self-defence. Therefore Article 51 has to be interpreted narrowly as containing a prohibition of anticipatory self-defence." See Bruno Simma ed., The Charter of the United Nations: A Commentary, Oxford, 1994.

8. Josef Goldblat, ‘The Nuclear Non-Proliferation Regime: Assess ments and Prospects’, Recueil des Cours, Academie de Droit International, vol. 256, 1995.

9. Philip C. Jessup, A Modern Law of Nations, New York, 1949.

10. Ian Brownlie, ‘The Use of Force in Self-Defence’, British Yearbook of International Law,vol. 37, 1961. See M. K. Nawaz, ‘Limits of Self-Defence: Legitimacy of Use of Force against Economic Strangulation?’ Indian

Journal of International Law, vol. 16, 1976.

11. See V.S. Mani, ‘The Fifth Afghan War and International Law’, Economic and Political Weekly(Mumbai), vol. 37, January 26, 2002.

12. Addressing the claim of a general right for a State to intervene, say in support of an internal opposition in another State whose cause appeared to be worthy "by reason of the political and moral values" with which the intervening State was identified, the International Court held in the Nicaraguacase: "For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention." ICJ Reports, 1986. The Court further held that while a State might "form its own appraisal of the situation as to respect for human rights" in another State, "the use of force could not be the appropriate method to monitor or ensure such respect." Ibid. For Third World perspectives on humanitarian intervention, see V. S. Mani, ‘Humanitarian Intervention and International Law’, Indian Journal of International Law, vol. 33, 1993; Bhupinder Singh Chimni, ‘Towards a Third World Approach to Non-Intervention: Through the Labyrinth of Western Doctrine’, ibid. vol. 20, 1980. Albrecht Randelzhofer, distinguished commentator on Art. 2(4) of the UN Charter, concludes that "the systematic interpretation of the Charter… makes it clear that the individual States are to be divested of the use of force as an instrument of their international policy… Under the UN Charter, forcible humanitarian intervention can no longer, therefore, be considered lawful." See, Simma ed., 1994. On NATO action in the former Yugoslavia, Simma himself states that in the absence of a Security Council authorisation, "military coercion employed to have the target State return to a respect for human rights constitutes a breach of Article 2(4)…" See Bruno Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, European Journal of International Law, vol. 10, 1999.

13. PCIJ Series A, No. 10. Relates to a dispute between France and Turkey involving collision of a French and a Turkish ship at the mouth of the Black Sea. The French claimed a right to prosecute the French nationals on its ship for criminal negligence. But the Turkish government insisted on its right to prosecute both the French and Turkish nationals.

14. Ibid.

15. Ibid.

16. ICJ Reports, 1951.

17. Corfu Channel case, ICJ Reports, 1949. This ruling was in the context of the British justification of use of force in self-defence or self-help, in the forcible removal of mines from the Albanian territorial waters with the help of naval minesweepers.

p. 1 p. 2 Notes

V.S. Mani is Professor of International Legal Studies, Jawaharlal Nehru Iniversity, New Delhi