A paradigm shift in international law?

Myint Zan, Lecturer School of Social and Economic Development, University of the South Pacific, Suva, Fiji Islands.

Ever since the death of at least 6,000 people, Americans and non-Americans alike, the United States has yet to fully "strike back".

President George W. Bush has stated that the U.S. is in "hot pursuit" of those who perpetrated the worst terrorist acts in history.

In international law, the traditional doctrine of "the right of hot pursuit" is the right of the ships of a coastal state to pursue ships from other countries which, in violation of the coastal state's laws and regulations, are in its territorial waters or exclusive economic zone.

The pursuit must stop once the pursued ship enters its own or another state's territorial waters. However "legal terms" and definitions can indeed expand, especially when the person defining the terms is the president of the world's remaining superpower.

If and when the "strike" against the Taliban or the prime suspect, Osama bin Laden, takes place, what are the international legal principles that are relevant here?

Article 51 of the United Nations Charter states that "Nothing in the present Charter shall impair the inherent right of individual and collective self defense when an armed attack occurs against a member of the UN ... "

An "armed attack" indeed has occurred against a UN member, but by whom? This attack did not take place in the conventional sense in that no armies, navies or air forces crossed borders. The attack emerged from within the U.S.when 19 individuals from several different Arabic countries hijacked four commercial U.S. airliners.

So who is the U.S. and their allies "at war" with? This is where one possible paradigm shift apparently may have occurred. At least the colloquial meaning of terms like "terrorism", "war", "armed attack" and "self defense" may have assumed new dimensions.

The fact that both the NATO and ANZUS security alliances had invoked their respective articles in their regional defense treaties, stating that an attack against one member of the alliance is an attack against all, points to the gravity of the acts. It also highlights the uniqueness of the situation.

Can the harboring of bin Laden and his thousands of followers by the Taliban justify a U.S./NATO attack on Afghanistan as an act of "self defense"?

A "legalistic" answer on this issue was given by the International Court of Justice in a Nicaraguan case in 1986. The ICJ, by a majority, rejected the U.S. contention that it had the right to mine Nicaraguan harbors and train Contra rebels who were fighting against the country's Sandanista government.

The U.S. had argued that it had acted against Nicaragua, together with other Central American countries such as Honduras in "collective self defense" because Nicaragua had allegedly trained leftist rebels fighting the Honduran government.

Therefore, even if bin Laden and, less likely, the Taliban, were behind the training of the terrorists, a full-scale armed attack against Afghanistan, especially if innocent Afghans were killed, could not be legally justified.

What about UN enforcement action against the Taliban?

Article 39 of the Charter authorizes the Security Council to declare that a certain international situation amounts to "a threat to international peace and security". Article 41 authorizes the Security Council to adopt sanctions short of military force. Under Article 42, the UN is authorized to send "land, air and sea forces " against an aggressor state.

Such enforcement actions have never occurred. The U.S.-led action, under the auspices of the UN, against North Korea in 1950 and against Iraqi-occupied Kuwait in 1990, can only be described partly as "enforcement actions".

Yet the Taliban has not attacked its neighbors.

Nevertheless, this does not mean that as far as the contemplated U.S. actions are concerned, there is no role for the UN. The fact that the Security Council has unanimously condemned the attacks and has again demanded the surrender of bin Laden would be used by the Bush administration to justify its position legally and politically, if and when it commenced military operations against the Taliban.

If the U.S. could obtain prior approval from UN Security Council to execute a limited surgical strike against terrorist training camps, or even to capture and "neutralize" the prime suspect and his training camps, that could be an additional legal boost for the U.S. This would only be possible if the operations involved a minimum loss of life and were effective in reducing the viability of terrorists.

What about humanitarian intervention by the UN?

In September 1999, Secretary-General Kofi Annan urged that UN members should seriously consider giving the UN some form of the right of "humanitarian intervention" across international boundaries in cases where gross violations of human rights against humanity occurred inside a nation-state.

He also urged governments to discard or modify the absolute doctrine of sovereignty, and take a stand in the cause of humanitarian values.

The Taliban regime is perhaps the closest example of an "outlaw" regime in that there is now only one country in the world -- Pakistan -- which recognizes it. Yet the reality of geo- politics, not to mention the history and terrain of Afghanistan -- certainly would hinder any scenario of a UN-led "humanitarian intervention" against the Taliban, though a unilateral U.S. military response cannot be discounted.

The "paradigm shift" in international law is not that the UN will become a "humanitarian intervener".

Instead the shift -- whether paradigmatic or not -- can be discerned in the rhetoric and actions of countries such as the U.S., China, Russia and even hitherto recalcitrant governments.

They have at least implicitly become less insular and "sovereign", and more cooperative in their stand to unite against the global scourge of terrorism.

A prime example is the Bush administration's shift from unilateralism in that it now actively seeks international cooperation to counter the "enemies of freedom".

It may still be too early to say that a "paradigm shift" has now occurred in international law. Nevertheless, if international cooperation against terrorism and a re-evaluation on issues of sovereignty, use of force, and the importance of human rights has helped in some way to achieve greater international cooperation and solidarity, then perhaps there is some small solace from the tragic events of Sept. 11.