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The Precedent Set by the US Reprisal Against the Use of Chemical Weapons in Syria

Published on May 1, 2017        Author: 

In his recent post on the United States’ missile strike against a Syrian airbase, on 6 April 2017, Marko Milanovic focused primarily on the unlawfulness of that action (here). While I agree with that view, in this post, I wish to focus on the nature of the precedent which the US reprisal has set. Moreover, I argue that this instance of use of a forcible countermeasure by a permanent member of the UN Security Council (UNSC) should serve to refocus attention on a dysfunctional UNSC.

Three remarks at the outset: (a) This post concerns only “forcible countermeasures” or “reprisals”; (b) I characterise the US missile strikes as a reprisal against Syria’s use of chemical weapons. Although other characterisations have been proffered (for instance, humanitarian intervention or providing assistance in a counter-insurgency), the US administration has framed its actions primarily in terms of a forcible response to the use of chemical weapons (see below); and (c) I rely on the assumption, tendered by the US but disputed by Russia, that Syria was responsible for the chemical attack.

The Legal Framework

A useful starting point for this discussion are the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001, which have been said to present “a combination of codification and progressive development” (Harris, Cases and Materials on International Law, p. 422). Article 49(1) of the Draft Articles states that “An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations…” Thus, while the Draft Articles envisage the lawfulness of countermeasures in certain circumstances, it is important to clarify briefly: (1) which countermeasures are envisaged; and (2) which party may undertake them. Read the rest of this entry…

 

Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis’ Rejoinder

Published on June 19, 2012        Author: 

In her rejoinder to my post, Jaye Ellis underscores that “comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another”.

Insofar as comparative law is considered merely as an opportunity to “learn” from municipal legal systems, then the matter is relatively uncontroversial. A perhaps more controversial question, however, is: how are the lessons learnt from comparative law to be used?

While some authors, on the one hand, have suggested that the lessons from comparative law may provide safeguards against judges who attempt to legitimate a posteriori a solution that they have already chosen (see Delmas-Marty, The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law, Journal of International Criminal Justice (2003)).

On the other hand, some commentators have suggested that comparative law may be used for precisely the converse reason. Judge Cassese, for instance, intimated that:

Mon experience est que souvent le droit compare est utilise pour confirmer une solution que l’on avait déjà trouvée.(cited in Bohlander and Findlay, The Use of Domestic Sources as a Basis for International Criminal Law Principles, in the Global Community Yearbook of International Law and Jurisprudence (2002)).

It is perhaps this apprehension which explains Judge Cassese’s categorical stance in Erdemović, in relation to the acceptance by the Tribunal of a guilty plea. While the Tribunal concluded that it could restrict its search solely to common law adversarial systems from which the rule was derived, Judge Cassese insisted that such a narrow inquiry was unacceptable. Read the rest of this entry…

 
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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis

Published on June 1, 2012        Author: 

Aldo Zammit Borda is a PhD candidate at Trinity College, University of Dublin and a Fellow of the Honourable Society of the Middle Temple. Previously, he served as First Secretary, Ministry of Foreign Affairs of Malta, and as Legal Editor, Commonwealth Secretariat, London.

 1. Introduction

This post seeks to engage with Jaye Ellis’ article on ‘General Principles and Comparative Law’ (22 EJIL (2011) 4, 949–971). While it agrees with Ellis’ general proposition that comparative law provides a valuable resource for the identification of general principles of law, it argues that there are important distinctions to be drawn between the comparative law method and the review of evidence for the purpose of clarifying customary international law and general principles of law. In particular, the argument is made that the identification of general principles is not, as Ellis suggests, the mechanical extraction of the essence of rules. Rather, it is the juridical identification of a common underlying sense of what is just in the circumstances. In her article, Ellis was critical of the late Judge Cassese’s position in Erdemovic, for insisting that an approach which relied primarily on common law systems for guidance on the guilty plea was “unacceptable.” This post however agrees with Judge Cassese’s position and underscores the dangers in accepting narrow inquiries, which at best attach special weight and at worst restrict the scope of  inquiry to a single, specific legal system.

2. Comparative Law And The Ad Hoc Tribunals

In ‘The Science of Comparative Law’ (7 Cambridge LJ (1939-1941) 94), Schmitthoff observes that  “The  first  phase  consists  in  examining  the  reaction  of  a number  of  legal  systems  to  an  individual  legal  problem.  The second stage is concerned with the utilization of the results obtained  in  the  first  phase,  and  this  utilization  can  be  effected for a great variety of reasons.”

This post will mainly be concerned with the first phase of comparative law (the “collation of facts” phase), which assumes, as a prerequisite, that the topics under examination must be comparable. Schmitthoff states that comparative law has to confine itself to legal systems which have reached the same (comparable) level of evolution. Establishing a basis of comparability for the relevant topics is therefore a prerequisite of comparative law. For Barak, this basis of comparability is a common ideology. He states that, with respect to democratic legal systems, a meaningful comparison could only be had with other democratic legal systems.

A. The Application Of Comparative Law By The Ad Hoc Tribunals

Delmas-Marty observed that the attraction of comparative law stems from the sources of international criminal law, at least to the extent that custom and general principles of law are partly based on national law. (‘The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law’, 1 J International Criminal Justice (2003) 13)

1. Comparative Law And Customary International Law

The process of clarifying customary international law requires reviewing evidence from, inter alia, national jurisdictions in order to make out its material sources, namely State practice and opinio juris. The process of reviewing evidence in this context resembles Schmitthoff’s first phase of comparative law, namely, the “collation of facts” phase. Read the rest of this entry…