Hobbes v. Publius on International Law

[Francisco Martin]

Prof. Sellers wrote in relevant part:
>    The difficulty in determining the content of international law  through
> international institutions is not a problem with the U.S. Constitution,
but
> a problem with the current state of international institutions.
>
>    No one disputes that the Charter of the United Nations is binding on
the
> United States under Article VI of the U.S. Constitution.  (Within the
usual
> limitations of the doctrine of rebus sic stantibus).
>
>    The Charter of the United Nations under Article 2(4) requires all
> members of the United Nations to "refrain in their international relations
> from the threat or use of force against the territorial integrity or
> political independence of any state, or in any other manner inconsistent
> with the Purposes of the United Nations".
>
>    The question remains, however, whether the threat or use of force in
any
> particular instance (for example, against the tyrannical Baathist
> government in Iraq) is a violation of the territorial integrity and
> political independence of any state, or contrary to the purposes of the
> United Nations (which include "encouraging respect for human rights and
for
> fundamental freedoms for all").
>
>    A Security Council Resolution definitively determining the existence of
> a threat to or breach of the peace would clarify the legitimacy of armed
> intervention.  In the case of Iraq, such a resolution exists, but may
(some
> argue) have "expired".  Until the Security Council speaks, there is no
> definitive way of determining, through existing international
institutions,
> whether the use of force in a particular instance would be legitimate or
> not, and in any case, the Security Council has no jurisdiction outside the
> realm of threats to and breaches of the peace.
>
>    In the absence of any legitimate or democratically valid international
> technique for making determinations about the content of international
law,
> the U.S. Constitution gives Congress the power to define offenses against
> the law of Nations. This is the best available solution, given the current
> state of international institutions.

There is quite a bit of international case law that gives content to
whether use of force is lawful. See jurisprudence of, e,g., IMT, ICJ,
EurCtHR, IACmHR.  On the other hand, if Prof. Sellers is saying that there
is no international legal organ that could give a determination of whether
the use of force against Iraq would NOW be available, that also is
incorrect.  The ICJ, EurCtHR, and IACmHR all could arguably address the
lawfulness of future use of force against Iraq under their rules of
procedure.

Francisco Forrest Martin