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International Law
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http://www.calbar.org/2cbj/01nov/page8-1.htm

International law in a post-Sept. 11 world

By JOHN B. McNEECE III

International law will continue to play a key role in ordering
international affairs following the horrendous terrorist attacks of
Sept. 11. Arguably, it will have an even greater role than before,
because of the multi-national nature of the terrorist threat, and the
need for a cooperative response among nations. President Bush's effort
to build an international coalition prior to the armed response against
the Taliban - charged with harboring Osama bin Laden - was a clear
recognition of the need for international cooperation. That cooperation
is being built on a framework of treaties and conventions already in
place and the established role of the United Nations.

As California lawyers, we generally find ourselves advising business
clients on international accords that govern private matters, i.e.
cross-border business transactions, arbitration or litigation. But
international agreements also create a framework of "public
international law" and establish international organizations such as
the United Nations that are intended to order state-to-state relations.

The United States has asserted the principle of self-defense to justify
its use of force against the Taliban regime in Afghanistan, implicitly
invoking Article 51 of the United Nations Charter, which recognizes
"the inherent right of individual or collective self-defense if an
armed attack occurs against a Member of the United Nations." Others
argue that since bin Laden is an individual, there is no armed conflict
with any state and the concept of self-defense is inapplicable.

Instead, the attacks should be governed by international conventions
reaching individuals, potentially including the 1970 Hague Convention
for the Suppression of the Unlawful Seizure of Aircraft, and the 1999
U.N. International Convention for the Suppression of Terrorist
Bombings. These conventions would permit proportionate countermeasures
against states supporting the individual terrorist, not including armed
force.

My view is that, in light of the scope and destructiveness of the
terrorist attacks, and the evident interrelation between bin Laden and
the Taliban, the U.S. is justified in asserting self-defense as a basis
for the armed response against the Taliban.

The U.S. considers that it was subject to an armed attack. And the
North Atlantic Treaty Organization (NATO) parties, through their
invocation of Article 5 of the Treaty, have concurred with the U.S.
position. Article 5 provides that an "armed attack against one or more
of them . . . shall be considered an attack against them all" and
therefore each member, "in exercise of the right of individual or
collective self-defense recognized by Article 51" of the U.N. charter,
will assist the attacked state, including the use of armed force. The
two U.N. Security Council resolutions in response to the Sept. 11
attacks, Resolution 1368 (Sept. 12 - condemnation of attacks) and
Resolution 1373 (Sept. 28 - on international cooperation to combat
terrorism) also recognized the right of self-defense.

But apart from my own views or the views of any other commentator, the
key issue here is that both the U.S. and its critics are looking to
international law as a basis for evaluating the use of armed force.
International law provides a framework for justification, or
denunciation, that carries substantial weight in world opinion.
International law also provides a framework for cooperative
international action. Such action will certainly be necessary to deal
with the issues that reverberate from the terrorist attacks, including
the critical refugee problems in Pakistan and Iran, the need to control
financing of terrorism, the threat of chemical and biological attacks,
and the nation-building that will be required if the Taliban is
overthrown. For all of these reasons, international law will continue
to play a critical ordering role among nations in the post-Sept. 11
world.

 John B. McNeece III is chair of the executive committee of the State
Bar's International Law Section. The views expressed are solely those
of the author and do not reflect the views of the International Law
Section or its executive committee. Mr. McNeece can be reached at
jmcneece@luce.com.



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