Tuesday, May 6, 2008

proposal for ANZSIL

I am going to present a part of my thesis ``non-state actors and collective defense regime`` at annual post graduate workshop of ANZSIL this June as comes below;

Security Certainty, Legal Dilemma:
What non-state actors are to do and states don’t want them to!
Amin A. Ghanbari
Proposal Prepared for ANZSIL symposium, June 2008

In this essay I will discuss, the role of non-state actors in the changing dynamic of the international regime of use of force, presuming International Legal Regimes (ILR), as the furtherance of the International Regimes in legal forms and shapes, in a way, which they per se, can treat subjects of the system and the community of them as a whole, as a security threat. For this:
A: Non state actors are taken as an effective variable to the real world of the acting states in their international relations; states which are supposed to function securely on the one hand and to produce security for their citizens on the other.
B: My presentation of the concept will be an interdisciplinary approach, basically in international law, meanwhile benefiting from the international regime theory of International Relations as the theoretical basis.
I will define the concepts of international regimes, Dynamics of Regimes and the transition process of them turning to Legal Rules and Regimes, and I will compare the Dynamic of these regimes to the same process of change in forms of legal rules. This would lead to the conclusion that, since the international legal regimes tend to status quo ante, they would act in wickedness of their creators in situations of rapid and peril threat or danger which is a fundamental change to basic causal variables and hence dynamic of a hypothetical legal regime (in this case the regime of use of force).
For all these arguments I will study the case of al-Qaeda, which as non-state actor has played a strategically different role from many other non-state actors, at and before its time.
I will make my attempts to evaluate the changes in international rules stemming from of the 9/11 and other terrorist incidents with similar character, focusing on the (anticipatory) self-defense regime in international law, as a competitive thesis to collective defense regime; as we put self help in contrast to collective action.
The anticipatory self defense will be examined through history of state practice, with special consideration to recent so-called uses of the thesis by regional powers, e.g. in Iraq concerning the Kurds (PKK), and other belligerent armed groups in the region and the question of anticipatory self defense in their cases.
Plat du jour:
1) Introduction: Security as a need and as a function for state in a state centered system.
2) International Regimes: Definition, Elements of basic causal variable, their Dynamic;
3) A Typology of non state actors and a Typology of Threat: When do they get to be a security threat?
4) International Collective Defense Regime: Security council in practice and the question of non state actors, failures and challenges;
5) Conclusion: Self help and self anticipatory defense as the alternative taken by some actors; is it licit in case of non-state actors in several supra mentioned types?

The plat referred to in the previous passages, may vary in heading process of writing. The idea of this essay is the heart of my master thesis, being written under supervision of Prof. Djamchid Momtaz, in Teheran University, to be submitted in june-july 2008, under the name: Non-State Actors and Collective Defense Regime.

Wednesday, March 5, 2008

Mr. President will order Security!

`My message to the United States Congress is that this trade agreement is more than a matter of smart economics, it is a matter of national security` president bush pronounced convincing the congress to ratify the treaty meanwhile justifying the Columbia’s incursion to Ecuador pale.

Before that, since December 2007 (or maybe even before that), Turkey started launching attacks on Kurd armed groups which seemed to be resident in Iraqi territory after the regime change in Iraq and since Regional Kurdish Government had taken over the control of Kurds in northern of Iraq. Regardless of Vehement Condemnation of the attacks by the Regional Kurdish Government, the attacks went on and on till recently the Kurd authority asked Turkey to exclude civilians from fruity attacks; which seemed to be an invitation for minding the principles of proportionality and necessity to be considered by the attackers;
"Any attack on any citizen in Kurdistan or populated areas will be answered with massive resistance ... and all preparations have been made in this matter," a statement from the presidency of the Kurdish Regional Government said. Reuters
Now the incident of Columbia, launching attacks on a foreign country’s pale to suppress the Norco-terrorists (FARC) as President Bush said, shows that the united state is supporting such attacks and even gives concessions to those sates applying the theory.
In Granada, the United States claimed that use of force, outside the charter exceptions on the prohibition of the use of force embodied in the article 2(4) of the charter i.e. self defense and measures taken by the Security Council under 7th and 8th chapters (charter based exceptions) is permissible if it is in accordance with objectives of the charter e.g. peace and democracy; the idea became heart of the editorial comment by Michael Riesman in AJIL at 1984 vol. 78 which was followed by Oscar Schachter critique, describing it as Pro-Democratic Invasion. In his very celebrated comment, professor Schachter, inter alia, focused on the principle of territorial integrity more than anything else besides taking charter and the United Nations as the only authority for using force for its purposes and objectives. This discussion, apparently, was opposing another justification that the United States relied on, in the Security Council, referring to Entebbe Incident in 1976 which in, Israeli Armed forces attacked the airport in Entebbe-Uganda to save nationals and hostages taken by the PLO, concluding that since the violation of territorial integrity of Uganda by Israeli forces and in the present case (Granada) by US army had been temporary, then it is justifiable.
In my view, even if the arguments of the `Legalist` side of the discussion (as Robert Keohane used the term legalist to describe some lawyers in contrast to Instrumentalist ones)is legally more reasonable than the instrumentalist arguments, still the latterseems to be more applicable and more powerful.
This is all about taking law as an effective variable in international politics as Henkin mentioned in his precious book, How Nations Behave and Morgentha, bout international norms and morality as a barrier for taking suitable actions by politicians.
Questions of Global Governance as a very hot debated issue on the one hand (if one happens to be enough imaginative or Futurist to discuss it in the 21st century, which I think we ought to be!), but using force under mentioned doctrine which erodes the very key principle of the post II world war international minimum legal order and the charter based political and legal structure, may and will for sure make serious and critical legal consequences for states that even used the benefit and utility of the theory in short in a widened horizon, since their presidents may not be able to order national security the way President Bush did this morning.
This reminds me of what professor Asgarkhani said once, (I’m paraphrasing) ``International Organizations, (from a realistic angle) are like insurance companies; you’d better not counting on them, because after the loss happened they would tell you that your insurance is not covering the whole loss you met.
At last, I want to raise a question too; after collapse of the eastern block, a new world dawned with a hyper active Security Council (also with a few unforgivable omissions like Rwanda), issuing resolutions on after another, giving permission for use of force (or some countries tend to interpret its resolutions in such a manner). After doctrines like saving nationals abroad, and Humanitarian Intervention, which became controversial among lawyers and states, isn’t it another sign to diagnose the disease that weakens most important principle of classic international law, i.e. Territorial integrity and the principle of non intervention? How can we discuss this as a sign for maximized attempts of the Hegemony to cook up its own plat du Juris?

Wednesday, February 27, 2008

Book Launch

Collected Papers of the Regional Conference on Islam and International Humanitarian Law is launched at Peace Building by ICRC and the I.R.I Red Crescent Society; in this book, a series of articles by Islamic Scholars and Lawyers, is presented Islamic tradition to shed some light on linkage and common roots and rules of Islamic law and recent international law giving special consideration to Humanitarian rules and jus in bellum, ad bellum and post bellum.
Islamic schools in Iran are showing a great deal of enthusiasm for contacting their views on modern issues as a minority in Muslim World (Shiite schools). For this they have been making attempts studying and criticizing present literature in any potential area of study they can get into; and the just mentioned work is another demonstration which is worth being borne in mind.

Friday, February 22, 2008

Teheran University, Symposium on ICJ

A symposium was held (21.02.2008) in Teheran University, on the Role of the International Court of Justice in Continuity and Development of International Law; for this, 13 Professors, lecturers and PhD Candidates presented their views on the issue in three sessions.
The opening, was the speech of the honorable professor of Teheran University and the Chairman of the Iranian Association for United Nations Studies (the institute which the meeting was held by) Professor Djamchid Momtaz. After the opening, the lecturers whom were gathered from Teheran University, Shahid Beheshti University, Allameh University and the Esfahan University presented their articles.
The main issues concerned with, were Procedural Rules, ICJ in Human Rights and the Humanization of International Law, Use of Force and the problem of Interpretation in the tradition ICJ has been leaving behind for international scholars.
The most critical part of the ceremony, at least to me, was the presentation made by Professor H. Phalsaphy from Shahid Beheshti University, by the name Episode of Interpretation by the ICJ; Professor Phalsaphy in his presentation, which was less disheveled and less boring than the others, and in his words, in an utter juris diction fashion, numbered three elements for a customary international rule instead of the two well known ones very rhetorically!
Professor Phalsaphy concluded that since the ICJ has discovered or in better words, addressed redundant series of international customary rules, the opinion of the bench would be the 3rd element right after the material practice and the opinion juris of the practicing states for a rule to be constituted. The whole speech was so thoughtful, but the snap supra mentioned conclusion he made after all his discussions made the situation a little bit uncomfortable for everybody who thinks of international system as a state centered (at least still) system.
The only way I could correlate the two parts of premises and the conclusion, was to presume, that he meant that it has been the subsequent practice of states to give the ICJ (as an international institution) the authority to confirm the existence of a costmary international rule (which is a very controversial discussion itself), but claiming that no rule of costume can exist without permission of the ICJ is a little bit Far beyond any sort of legal reasoning in international law, and supposing the international law as a pure-Saxon system, the possibility which professor Phalsaphy strongly rejected in the intro of his speech, is just unjust and deeply a misleading gesture for his students.
notwithstanding, it is too soon to judge; because the papers are unpublished and I hope there is a bit of chance left for a more reliable reason for such a huge claim to be found in this famous and really knowledgeable professor of international law`s paper.