E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 11 Number 3 (September 2004) Copyright E Law and author ftp://law.murdoch.edu.au/pub/elaw-issues/v11n3/thomas113.txt http://www.murdoch.edu.au/elaw/issues/v11n3/thomas113.html ________________________________________________________________________ The Use of Force and Pre-Emption: A Legitimate Practice Under the UN Charter? Narelle Thomas Notre Dame University Australia School of Law Contents * Introduction * Prohibition on the Use of Force * Article 51, Self Defence and Pre-emption * The Debate Surrounding Pre-emptive Use of Force * Case Study: Operation Iraqi Freedom * Effect on Operation of the United Nations Charter System * Conclusion * References o Books o Articles o Cases * Notes Introduction 1. Article 2(4) of the United Nations Charter has been described as an unequivocal prohibition on the use of force. Pre-emptive use of force, therefore, would also seem to be prohibited. The notion of pre-emption brings theorists to the murky issue of self-defence – an ill-defined, ambiguous and controversial exception to the blanket prohibition on the use of force, set out in Article 51 of the Charter and interpreted with reference to customary international law. As has been evident in developments such as the ‘battered wives syndrome’ in self-defence under municipal criminal law, much debate has surrounded the legitimacy of pre-emptive self-defence, in the absence of an actual attack, under international law. Questions arise as to the source of such a right and the criteria, which would validate the use of force on this basis. The following is a discussion of the prohibition on the use of force and the legitimacy of the doctrine of pre-emption in light of such a prohibition. Particular reference is made to a state’s right to self-defence both under the Charter and customary international law and the interpretation of Article 51 giving rise to valid pre-emptory actions. The discussion includes comments on the validity of inferring pre-emption into the right to self-defence and an illustrative case study of recent US and allied operations in Iraq (Operation Iraqi Freedom). Finally, this paper will contemplate the future of the UN Charter in light of military action in Iraq. Prohibition on the Use of Force 2. The preamble to the Charter of The United Nations (‘the Charter’), refers to the overall vision of the document, including a reference to ensuring ‘that armed force shall not be used save in the common interest’. The operative text of the Charter contains an express prohibition against the use of force, embodied in the form of Article 2(4), which reads: "All members shall 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 manner inconsistent with the Purposes of the United Nations." 3. These words amount to a 'comprehensive prohibition on the use of force,' [1] which has been reaffirmed on a number of occasions in General Assembly resolutions, International Court of Justice (ICJ) decisions and states themselves.[2] 4. There are two exceptions to this blanket prohibition: the right to individual or collective self-defence in response to an armed attack pursuant to Article 51 of the Charter; and a member state’s right to seek the Security Council’s specific authorisation for the use of force in accordance with Chapter VII of the Charter (the latter is not the subject of discussion here). Article 51, Self Defence and Pre-emption 5. Article 51 of the Charter states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN – until the Security Council has take measures necessary to maintain international peace and security." 6. This provision has met with two divergent interpretations.[3] At one extreme is the narrow interpretation arguing the operation of Article 51, having regard to the language of the provision, is limited to those situations where an actual ‘armed attack’[4] has occurred.[5] 7. Ambiguity in both the charter and subsequent UN Security Council Resolutions, however, have made way for an expansive interpretation of Article 51, which arguably enshrines the right to self defence in existence under Customary International Law.[6] Acceptance of the operation of customary international law in concurrence with Article 51 enables the importation of customary international law parameters for the operation of the doctrine of self defence.[7] 8. The requisite customary law elements for a valid exercise of the right to self defence, derived from the Caroline Case[8] include necessity, the presence of an imminent threat and proportionality of response. Necessity requires that all alternative avenues of resolution have been exhausted and the use of forces is the last resort to deter attack.[9] Such action must be in response to an imminent provocation and may not be remote in time from such threats.[10] Convincing proof of an imminent attack[11] must be present in order to justify an anticipatory use of force.[12] 9. Where necessity and the existence of an imminent threat have been established, a response in pre-emption of such a threat must be proportional. That is, the responding state uses no greater force than is necessary to prevent attack and avert danger posed by an aggressor.[13] The Debate Surrounding Pre-emptive Use of Force 10. Given the weight of opinion in support of the expansive interpretation of the self defence doctrine, as outlined above, it is arguably legitimate to grant UN member-states a right to pre-emptive self defence. Arguments for and against the existence of such a right have sought support in the writings of legal philosophers. Hugo Grotius stated the danger ‘must be immediate and imminent in point of time… but those who accept fear of any sort as justifying anticipatory slaying are themselves greatly deceived and deceive others.’[14] Emmerich De Vattel, on the other hand, argued a nation has ‘the right to prevent an injury where it sees itself threatened with one.”[15] 11. More recent international events, such as the September 11, 2001, terrorist attacks on the United States, have resulted in a need to wholly reassess the self-defence doctrine having due regard to the contemporary capabilities of adversaries and their apparent determination to achieve their goal.[16] Ruth Wedgwood argues the September 11 attacks have changed ‘the strategic responsibilities of democratic states.’[17] With the steady emergence of the weapons of mass destruction,[18] it is reasonable to suggest even those steadfast against allowing pre-emption in international law must reconsider the effect of the doctrine. Requiring states to wait until actually attacked before mounting a defence is unrealistic in modern conflict. To do so makes ‘sitting ducks’ of states, opening them not only to collateral damage, but also the potential destruction of any means of defence subsequent to an aggressors assault. It is arguable that the Bush administration sought to justify its operations in Iraq on the basis of liberal interpretation of the right to anticipatory self defence.[19] The legitimacy of such a claim is discussed below. Case Study: Operation Iraqi Freedom 12. Following the events of September 11, the Bush Administration declared an intention to seek and destroy international terrorist networks, vowing to rid the world of terror once and for all. The valiant charge was backed by the release of the administration’s new strategic doctrine, claiming the right to use force in pre-emption of potential threats to the US, including weapons of mass destruction and terrorism[20] – the first divergence from the US deterrence and containment rhetoric since the cold war.[21] The apparent convergence between the publication of the new strategy and the initiation of military action against Iraq in March 2003,[22] as well as a number oblique references to self-defence by US officials,[23] have led commentators to analyse the legality of what has become known as “the second gulf war” on the grounds of pre-emptive self-defence.[24] By all accounts, it fails.[25] 13. Applying the law of self-defence, as outlined above, to the facts surrounding US operations in Iraq, it is clear that no elements of pre-emptive self-defence were present and justification of this basis is void.[26] As Bagaric and McConvill point out, the necessity of their self-defence was not instant or urgent. Iraq had not indicated an intention to attack the US, or any other country.[27] The US had expressed an intention to invade Iraq months before actually doing so. Further, there were alternatives available to the Bush administration to avert any threat posed by Iraq.[28] 14. Most commentators would also have difficulty finding the scale of attack carried out by the coalition forces was proportional to any perceived threat.[29] The violent US offensive was one of the most severe seen in modern days. It caused mass destruction of lives, infrastructure and ultimately Hussein’s regime. Where proportionality is to be assessed with reference to the threat posed,[30] it is arguable little to no threat was posed by Iraq at the time and it would follow the actions of the US and coalition forces were anything but proportional. 15. The principle reason given for the invasion was to prevent the stockpile and use of weapons of mass destruction, including biological and chemical weapons.[31] No firm evidence of the existence of such weapons was presented by the US, and there was certainly no sign Iraq had threatened to use weapons allegedly held within the territory. As Bagaric and McConvill argued, the subsequent events of the invasion were illustrative that Saddam Hussein’s regime were not in possession of weapons of mass destruction; or, at least, that they were not inclined to use them even in the face of dire circumstances such as the wholesale death and destruction caused by the coalition invasion.[32] Further there was no evidence of Iraq’s intention to attack any other state. In fact, Iraq had not been involved in a conflict with any other state in over a decade. As Bagaric and McConvill state: “At its highest, Iraq might have been making weapons which might have allowed it to launch an offensive against some state at some time in the future.”[33] 16. Taft and Buchwald counter this argument with reference to the events of the years preceding the second Gulf War.[34] They argue that ‘viewed as the final episode in a conflict initiated more than a dozen years earlier by Iraq’s invasion of Kuwait [in 1990],’ the issue of pre-emption does not enter into the debate.[35] Alternatively, they suggest the ‘risk embodied in allowing the Iraqi regime to defy the international community by pursuing weapons of mass destruction’ was sufficient to justify pre-emption and, viewed in the context of past actions of Iraq and threats posed over a ‘protracted period of time’, lawful under international law.[36] Rather the action was justified on the basis of Security Council Resolutions between 1990 and 2003. In response to comments such as these, Farer points out, the doctrine of pre-emption: “…plainly does not encompass the overthrow of regimes with records of aggressive behaviour. Nor does it legitimate the use of force against states deemed unfriendly in order to deny them weapons systems already deployed by other sovereign states.”[37] 17. To allow the US to rely on pre-emptive self-defence as a justification for such use of force is to hand a loaded gun to the world. It would expand the notion of pre-emptive self defence beyond that which is allowed under the UN Charter and even customary international law and in turn undermine the prohibition on the use of force set out in the Charter.[38] In practice, it is apparent the US will not face reprisal for its actions. It has highlighted the inadequacies of international law and the Security Council, to deal with the use of force by powerful states. The question is, therefore, has the prohibition on use of force, and therefore the credibility of the UN Charter, been undermined by the invasion of Iraq? Effect on Operation of the United Nations Charter System 18. The Iraq war has distorted the concept of a universal prohibition on the use of force under the UN Charter Article 2(4) in the absence of a valid exemption.[39] Richard Falk offers several possible explanations of the effect of the conflict.[40] The first is that the US as the dominant state in the contemporary world order is exempt from accountability for use of force, which is irreconcilable with the Charter. States who do not enjoy an exemption for association would, by contrast, be held to account. Secondly, it is argued, the conflict demonstrates that the Charter system no longer accords with modern political realities and is no longer authoritative on the validation of such actions. Thirdly, Falk suggests, the tension between the conduct of the US and the Charter is one which respects the underlying values of the international community and requires an organic approach to legality – not a question of either / or, but a question to be answered having regard to all the circumstances of the case. In light of the escalation of terrorism, pre-emptive force in order to seek out and destroy terror networks should be considered in terms of an expansion of the self-defence justification. Finally, Falk states, the source of legitimisation may be found in the end result of the conflict: “The emancipation of the Iraqi people from an oppressive regime, reinforced by the overwhelming evidence that the Baghdad rulers were guilty of systematic, widespread, and massive crimes against humanity, and an occupation that prepares the Iraqi people for political democracy and economic success.”[41] 19. Notwithstanding a year having passed since the invasion of Iraq and given the continued military activity in Bagdad and surrounding areas, it is too soon to make viable conclusions on the future of the Charter system. The status and authority of the Charter will depend on a number of factors. The fundamental question is whether the US will seek Security Council authorisation before carrying out future military operations against rogue states or if it will consider itself vindicated by the apparent achievement of its objective in taking unilateral action supported by allies, using the Iraq as a model for future conflicts. Although raising a number of problematic issues for the future of the Charter, it is a question that only time can answer.[42] Gardner suggests one resolution, given the impracticability of amendment to the UN Charter, is to encourage member states to support “modest reinterpretations of the law concerning the use of armed force – reinterpretations that stop short of opening a ‘Pandora's box’.”[43] Conclusion 20. In order to accept the use of pre-emptive force in the name of self-defence, it is essential to first accept the existence of such a right under the UN Charter Article 2(4), read in conjunction with Article 51. The breadth of the Charter provision for self-defence must be limited. This does not mean states should be forced to endure an armed attack before they may strike in defence, thereby opening them to the elimination of their means of defence. It requires instead that the customary law elements of pre-emptive force be read into Article 51, forcing states to show evidence of necessity, proportionality and the existence of an imminent threat. Notwithstanding the acceptance of the doctrine of pre-emptive self-defence, it is apparent this is not an adequate ground for justification of the US-led military action against Iraq. Instead the general body of opinion would suggest the action taken against Iraq was illegal by international standards. What remains to be answered is what effect, if any, will the behaviour of the US and its disregard for the prohibition on the use of force have on the UN Charter system of regulating conflict on the international stage. Only time will tell. References Books Clarke, B. International Law Nutshell Series (Pyrmont NSW: Lawbook Co, 2003) 149-150. De Vattel, E. The Law of Nations (Charles G Fenwick translation, 1916) 243. Grotius, H De Jure Belli Ac Pacis Libri Tres (Francis W Kelsey translation, 1925) 173. Walzer, M. Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977). Weeramantry C G. Armageddon or a Brave New World? Reflections on the Hostilities in Iraq (2003) preface, cited in Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 footnote [90]. Articles Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7. Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 10. Falk, R. “What Future for the UN Charter System.” (2003) 97 American Journal of International Law 590 at 593-594. Farer, TJ. “Beyond the Charter Frame: Unilateralism or Condominium?” (2002) American Journal of International Law 359. Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839. Gardner, R N. “Neither Bush nor the Jurisprudes” (2003) 97 American Journal of International Law 585. Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), in (1906) 2 John Bassett Moore, A Digest of International Law 412. Maxon, R G. “Natures Eldest Law: A Survey of a Nations Right to Act in Self Defence” (1995) Parameters Autumn, 55-68. Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self-Defence” (2003) 97 American Journal of International Law 599 at 600. Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557. Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence.” (2003) 97 American Journal of International Law 576 at 582. Cases Nicaragua v The United States [1986] ICJ Reports 14 [190] Caroline Case (1837) 2 Moore 409. Notes [1] Clarke, B. International Law Nutshell Series (Pyrmont NSW: Lawbook Co, 2003) 151. [2] Clarke, B. International Law Nutshell Series (Pyrmont NSW: Lawbook Co, 2003) 151; The ICJ referred to Article 2(4) as a “pre-emptory norm of international law, from which states cannot derogate.” Nicaragua v The United States [1986] ICJ Reports 14 [190]. [3] Clarke, B. International Law Nutshell Series (Pyrmont NSW: Lawbook Co, 2003) 153. [4] ‘Armed attack’ was given a broad interpretation in the Nicaragua Case (Nicaragua v The United States [1986] ICJ Reports 1 [4] [190]). The visible mobilisation of armies, navies and air forces may be required before an imminent attack will be evident: Gardner, R N. “Neither Bush nor the Jurisprudes” (2003) 97 American Journal of International Law 585. [5] Opponents of this view have pointed to the effect of UN Security Council Resolutions 1368 (adopted on 12 September 2001) and 1373 (adopted on 28 September 2001): Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 10. The resolutions do not contain any form of authorisation language for resort to force: Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 11. [6] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7; Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 840. Reference to an inherent right to self defence in the text of Article 51 is cited in support of this conclusion: Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 840. [7] Such parameters are absent from the text of Article 51 itself. [8] Caroline Case (1837) 2 Moore 409. In that case, Britain destroyed The Caroline steamer, used by American sympathisers in assistance of the Canadian rebellion against the crown. The judgment is referred to as support for a right to use force where an imminent threat is otherwise unavoidable. [9] Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 12; Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self Defence” (2003) 97 American Journal of International Law 59 [9] at 600. [10] Maxon, R G. “Natures Eldest Law: A Survey of a Nations Right to Act in Self Defence” (1995) Parameters Autumn at 55-68; Walzer, M. Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977): The US Secretary of State in the Caroline case, Daniel Webster, suggested a pre-emptive use of force should be confined to cases where ‘necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.’: Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), in (1906) 2 John Bassett Moore, A Digest of International Law 412. [11] Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 842. Franck states this intuition is supported by the language of Article 51. [12] Contemporary weapon systems and the modus operandi of modern adversaries may require an expansion of the concept of imminent threat: Gardner, R N. “Neither Bush nor the Jurisprudes” (2003) 97 American Journal of International Law 585. [13] Maxon, R G. “Nature’s Eldest Law: A Survey of a Nation’s Right to Act in Self Defence” (1995) Parameters, Autumn, 55-68; This requires regard be had to the risk of harm to civilians versus the military advantages expected to result from the use of force: Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 12: The question of proportionality is complicated where a suspected aggressor is a non-state actor: Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 842. [14] Grotius, H De Jure Belli Ac Pacis Libri Tres (Francis W Kelsey translation, 1925) 173. [15] De Vattel, E. The Law of Nations (Charles G Fenwick translation, 1916) 243. [16] Address by Bush Administration National Security Advisor, Dr Condoleezza Rice, Winston Lecture, 1 October 2002; Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self Defence” (2003) 97 American Journal of International Law 599 at 599. [17] Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence.” (2003) 97 American Journal of International Law 576 at 582; Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self-Defence” (2003) 97 American Journal of International Law 599 at 601. [18] Including biological warfare, nuclear weapons and chemical based arsenals. [19] This argument is based on the efforts of the Bush Administration to develop a strategy of pre-emption aimed at permitting the US to forestall efforts by state and non-state actors to strike the US and to acquire weapons of mass destruction. See Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) at 7; Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 557; Ricks, T and V Loeb. “Bush Developing Military Policy of Striking First” The Washington Post 6 June 2002; Sanger, D. “Bush to Formalise a Defence Policy of Hitting First” The New York Times 17 June 2002. [20] The National Security Strategy of The United States of America (17 September 2002) available at http://www.whitehouse.gov/nsc/nss.pdf; Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence” (2003) 97 American Journal of International Law 576 at 583. [21] Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence.” (2003) 97 American Journal of International Law 576 at 582; Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) 10. [22] Fislor Damrosch, L and B Oxman. “Future Implications of the Iraq Conflict: Editors Introduction.” (2003) 97 American Journal of International Law 553 at 553. [23] Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self Defence” (2003) 97 American Journal of International Law 599 at 603. President Bush himself stated, “We choose to meet that threat now, where it arises, before it can appear suddenly in our skies and cities.” [24] The pre-emption of Iraq’s alleged possession of weapons of mass destruction. See Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14; Franck, TM. “Editorial Comments: Terrorism and the Right of Self-Defence” (2001) 95 American Journal of International Law 839 at 839; Cf Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 563. [25] See for example Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14; Farer, T. “Beyond the Charter Frame: Unilateralism or Condominium?” (2002) American Journal of International Law 359; Makinda, S. “Countering Pre-Emptive Strikes” Australian Financial Review 3 December 2002. Even where commentators accept an imminent threat existed and action was necessary, most have concluded the reaction of the US and coalition forces was not proportional in the circumstances. [26] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14. [27] Murphy, S. “US Adoption of New Doctrine of Use of Force” (2003) 97 American Journal of International Law 203 at 204. [28] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14. [29] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7 at 14; Bondi, L. Legitimacy and Legality: Key Issues in the Fight Against Terrorism (Washington DC: The Fund For Peace, 2002) at 9, 10 and13. [30] Walzer, M. Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977). [31] Sapiro, M. “Iraq: The Shifting Sands of Pre-emptive Self Defence” (2003) 97 American Journal of International Law 599 at 603. [32] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7. [33] Bagaric, M and J McConvill “The War in Iraq: The Illusion of International Law? Where Now” (2003) Deakin Law Review 7. [34] For a discussion of the details of these events see Wedgwood, R. “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence.” (2003) 97 American Journal of International Law 576 beginning at 577; Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 557. [35] Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 563. [36] Taft, W and T Buchwald. “Pre-emption, Iraq and International Law” (2003) 97 American Journal of International Law 557 at 563. [37] Farer, T. “Beyond the Charter Frame: Unilateralism or Condominium?” (2002) American Journal of International Law 359. [38] Makinda, S. “Countering Pre-Emptive Strikes” Australian Financial Review 3 December 2002. Makinda states, “Support for pre-emptive strikes ultimately suggests that the law of the jungle should reign.” [39] Fislor Damrosch, L and B Oxman. “Future Implications of the Iraq Conflict: Editors Introduction.” (2003) 97 American Journal of International Law 553 at 553. [40] Falk, R. “What Future for the UN Charter System.” (2003) 97 American Journal of International Law 590 at 593-595. [41] Falk, R. “What Future for the UN Charter System.” (2003) 97 American Journal of International Law 590 at 593-594. [42] Falk, R. “What Future for the UN Charter System.” (2003) 97 American Journal of International Law 590 at 595. [43] Gardner, R N. “Neither Bush nor the Jurisprudes” (2003) 97 American Journal of International Law 585 at 589.