Tuesday, March 08, 2011

Humanitarian (i.e., military and/or otherwise) Intervention in Libya? (Updated through March 9, 2011)

I’ve brought this back to the front of the blog owing to several updates.

Tom Hayden argues “Obama should tell Qaddafi to go:”

“Rarely, if ever, do I advocate U.S. intervention in the affairs of other nations. But President Obama should be supported if he calls for Libya’s Muammar el-Qaddafi to step down and asks the United Nations to intervene, if necessary.

There are two criteria that matter to me. The first is whether the leader in question is unleashing official violence against a popular movement, as was the case in China during Tienanmen, Chile’s armed forces against Salvador Allende, and Mexico during the Tlotelcolco massacre when U.S. strategic partnerships outweighed the value of human rights. The second is taking the opportunity to clear the name of the United States after decades of being sullied by spending our tax dollars and reputation on murderous regimes.

An immediate declaration that the Libyan regime has gone too far, coupled with a call for global support of the Libyan resistance, will have a serious impact on the balance of forces and be long remembered when people, including our own children, ask which side we were on during this rising of the Arab nation. Declaring such a principle – that the U.S. will not support dictators and monarchs who open fire on their own people – should be the guide to policy in other countries in the weeks ahead.

President Obama is quoted as seeing in the Egyptian revolution an opportunity for an alternative narrative to that of al Qaeda, that peaceful mass democratic uprisings are possible against Arab dictatorships. Here is his chance to prove it.”

There’s a nice (and a bit more nuanced) discussion of the issues and options regarding “humanitarian intervention” at the Jadaliyya blog by Asli Bali and Ziad Abu-Rish here.

Steve Negus has also weighed in on the question of intervention at The Arabist.

And now Issandr El Amrani adds his thoughts at The Arabist as well.

At Slate, Shadi Hamid appears to dismiss the possible problems and blowback effects of intervention in arguing that it is

“time for bold, creative policy-making. For starters, NATO should quickly move to enforce a no-fly zone over Libya, both to send a strong message to the regime and to prevent the use of helicopters and planes to bomb and strafe civilians. The United States and European allies should freeze the assets of senior Libyan officials and consider other targeted sanctions. Meanwhile, the international community should also let it be known that any individuals involved in perpetrating atrocities will be prosecuted before the International Criminal Court, while regime figures who defect to the opposition will be granted amnesty.”

Further reading in the relevant literature (alas, those entrusted with unenviable task of making timely decisions about such matters don’t have the luxury to read this material at present but one would hope at least some of them are familiar with the arguments contained therein):

First, for a principled discussion of humanitarian intervention from the perspective of philosophy of law and legal theory, see Allen Buchanan’s book (specifically, ‘humanitarian intervention’ in the index), Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004). And then:

· Arend, Anthony Clark and Robert J. Beck. International Law and the Use of Force: Beyond the UN Charter Paradigm. New York: Routledge, 1993.
· Chatterjee, Deen K. and Don E. Scheid, eds. Ethics and Foreign Intervention. Cambridge, UK: Cambridge University Press, 2003.
· Chesterman, Simon. Just War or Just Peace? Humanitarian Intervention and International Law. New York: Oxford University Press, 2001.
· Fletcher, George P. and Jens David Ohlin. Defending Humanity: When Force is Justified and Why. New York: Oxford University Press, 2008.
· Fox, Gregory H. Humanitarian Occupation. Cambridge, UK: Cambridge University Press, 2008.
· Greenwood, Christopher. Humanitarian Intervention: Law and Policy. Oxford, UK: Oxford University Press, 2001.
· Harriss, John, ed. The Politics of Humanitarian Intervention. London: Pinter, 1995.
· Holzgrefe, J.L. and Robert O. Keohane, eds. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge, UK: Cambridge University Press, 2003.
· Jokic, Aleksander, ed. Humanitarian Intervention: Moral and Philosophical Issues. Orchard Park, NY: Broadview Press, 2003.
· Tesón, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality. Ardsley, NY: Transnational, 3rd ed., 2005.
· Welsh, Jennifer M., ed. Humanitarian Intervention and International Relations. New York: Oxford University Press, 2004.

I’m acquainted with, and therefore partial to, the titles written or edited by Chatterjee, Chesterman, Holzgrefe and Keohane (which has a chapter by Buchanan), and Jokic.

If, as Juan Cole has posted today at Informed Comment, it is true that 90% of Libya is in the hands of the rebels (I’m uncertain as to how he arrived at this figure, as it is not based on the article from the Los Angeles Times he cites), I’m skeptical about the more vigorous proposals for (i.e., some form or forms of direct military) intervention.

Updates: Helena Cobban prefers an “incapicitation mission” to a “decapitation mission.”

And (2/27/2011), Jonathan Wright sensibly argues that the “U.S. also needs to show some self-restraint:”

“It’s a very bad idea for the United States to intervene in Libya and I have no doubt that no one credible in the Libyan opposition will accept such an offer. ‘We’ve been reaching out to many different Libyans who are attempting to organize in the east and, as the revolution moves westward, there as well. I think it’s way too soon to tell how this is going to play out, but we’re going to be ready and prepared to offer any kind of assistance that anyone wishes to have from the United States,’ said Secretary of State Hillary Clinton. The last thing any Arab rebellion (and that is what we have in Libya) needs is the kiss of death that any association with the United States would bring. If the US administration is reacting to domestic pressures, as it did in the case of its decision to veto the UN Security Council resolution on Israeli settlements, then it should resist the temptation. Even the vague offer could do damage. Who is giving advice to these US officials, and what is driving them?”

At Jadaliyya, Ayça Çubukçu is worried about the prospects of UNSC sanctioned intervention in Libya, the larger argument with the axiomatic premise that the “UN Security Council does not have [the] authority speak in the name of humanity or the international community.”

March 3, 2011: “The Libyan Conundrum: Don’t let him linger,” at The Economist:

[....] “It is vital for the lengthy and difficult reconstruction of Libya that Libyans themselves depose Colonel Qaddafi. The idea of putting Western soldiers’ boots on Libya’s sandy soil is thus still out of the question. But a no-fly zone could save thousands of Libyan lives, just as an earlier one saved Kurds in Iraq. Even then, it is fraught with technical difficulties, it cannot fully protect the Libyan rebels against Colonel Qaddafi’s machinegunners and it is liable to ‘mission creep’ (see article).

That makes it still more important for international involvement to have the backing of the Arab and Muslim world, especially the section of it that stands for progress and justice. This test is less clear-cut than it might be. The 22-member Arab League is in mealy-mouthed disarray; its secretary-general, Amr Moussa, is himself bidding to become Egypt’s next president. The autocrats of the Gulf, especially in Saudi Arabia, are looking askance at the democratic upheavals all around them. Moreover, the Libyan situation is so fluid that no one knows which leader or what coalition of political forces may come to the fore or win legitimacy in the global arena. Among Libya’s opposition, most people, though by no means all, seem ready to accept Western help.

As in all such mind-bending crises, it is best that the UN Security Council validates whatever course is pursued by the world’s beefiest governments, still inevitably led by the West, which, in turn means the United States, backed by Britain and France, its hardiest allies with a modicum of military muscle. The Americans are fearful of becoming embroiled in yet another distant venture. Among the Europeans, only Britain and Italy seem readier for a more robust involvement (see Charlemagne). China and Russia, though they voted for UN sanctions on Colonel Qaddafi in the Security Council, presently balk at a no-fly zone, let alone armed intervention by troops. Turkey, a key member of NATO in Mediterranean or Middle Eastern affairs, is so far dead against, too. So, for the time being, it seems, are the majority of Arab governments.

But if the Libyan regime starts killing people in their thousands—and especially if it uses helicopter gunships or aircraft—diplomatic reluctance should melt away. Too often the world has dithered open-mouthed as evil men have slaughtered Darfuris or Rwandans with impunity. Outsiders, led by the UN, must help Libya’s emerging transitional councils with humanitarian aid. The UN Security Council may yet have to be persuaded to restore peace by invoking the ample power of Chapter VII. And if that proves unattainable, the widest possible coalition of the willing, ideally including Libya’s Arab neighbours, must protect Libyan civilians by arming the opposition and defending them from aerial attack.”

March 7: See Kenneth Anderson at Opinio Juris.

And more to my own tastes, Richard Falk argues against the growing bipartisan tide in congressional quarters and elsewhere among Beltway politicians and pundits for intervention, particularly in the form of a “no-fly zone:” “Will We Ever Learn? Kicking the Intervention Habit.”

I agree with Allen Buchanan’s argument in Justice, Legitimacy, and Self-Determination...(2004) that “under certain conditions a willingness to violate existing international law for the sake of reforming it [analogous to the use ‘civil disobedience’ in municipal law] can be not only consistent with a sincere commitment to the rule of law, but even required by it.” It follows, for example, that we might explore the “possibility of developing a rule-governed, treaty-based regime for humanitarian armed intervention that bypasses the UN Charter-based law.” But Buchanan importantly qualifies his proposal by emphatically reminding his readers that

“[v]iolations of fundamental rules of existing international law, such as the prohibition of preventive war and against any use of force that does not qualify as self-defense and lacks Security Council authorization, are irresponsible, unless they are accompanied by a sincere effort to construct superior international legal structures to replace those they damage or render obsolete.” [emphasis added]

It is just this condition, namely, “the sincere effort to construct superior international legal structures” that I think is conspicuously lacking today and thus makes Falk’s argument all the more persuasive.

March 8: At EJIL: Talk! Stefan Talmon has a provocative post asking, “Could the International Court of Justice Indicate a ‘No-Fly Zone’ over Libya?” It’s worth a careful read, as Talmon first concedes that

“Any action without express Security Council backing would be of questionable legality under international law. The two no-fly zones over Iraq, which were imposed by the United States, the United Kingdom and France after the second Gulf War in 1991 in order to protect the Shi’a Muslims in the south and Kurds in the north against repressive measures by the Iraqi Government, were based on the doctrines of ‘implicit authorization’ (United States) and ‘humanitarian intervention’ (United Kingdom). Neither of those doctrines has gained general, or even widespread, acceptance in international law. Any unilateral action by NATO or another ‘coalition of the willing’ would thus head for a 1999 Kosovo-style scenario which might at best be described as ‘illegal but legitimate’ – the ultimate admission of defeat for any international lawyer.”

As an alternative, Talmon comes up with a legal argument based on the “prevention of genocide,” asking,

“Assuming the Security Council was deadlocked over the question of a no-fly zone over Libya (or parts of it), could States willing to take such action rely on any other legal basis? In particular, could States rely on a provisional measures order of the ICJ indicating a no-fly zone?

In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (2007), the ICJ held that States parties to the 1948 Genocide Convention are under an obligation ‘to employ all means reasonably available to them, so as to prevent genocide so far as possible’ (para. 430). The content of the obligation varies greatly from one State to another and depends, inter alia, on

‘the capacity [of the State] to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide’ (ibid.).” [….]

Of course determining whether genocide has occurred, is occurring, or is quite likely to occur would appear to be extremely difficult under conditions of civil war in Libya. The legal scenario sketched by Talmon strikes me as unlikely but no less deserving of careful consideration insofar as it could conceivably be a part of the deliberate and larger legal strategy that endeavors, as Buchanan says above, “to construct superior international legal structures to replace those they damage or render obsolete.” Those skeptical of such things, might still want to entertain it as a useful thought-experiment.

A comment to the Talmon’s post by Gbenga Oduntan, however, I thought worthy of full reprint as it reinforces the bulk of Falk’s argument above. Oduntan is author of the forthcoming volume, Sovereignty and Jurisdiction in the Airspace and Outer Space: Legal Criteria for Spatial Delimitation (New York: Routledge, 2011). While Oduntan does not directly address the merits of Talmon’s specific argument, he does critique the controversial plans for a no-fly zone as illegal under international law, at least those plans under consideration to date by the British, although as we’ve seen, it’s not just the British contemplating the imposition of a no-fly zone over Libya [I’ve made a few minor proof-reading corrections]:

“The British Foreign Secretary William Hague has recently expressed the view that this option of the no-fly zone could be implemented without the authorisation of the UN Security Council. It appears that British military commanders based at the Permanent Joint Headquarters (PJHQ) in Northwood in the northwest of London are indeed presently embarking on detailed plans to impose a no-fly zone. Such a plan will involve the deployment of Typhoon jets to RAF Akrotiri in the British Base areas of Cyprus. The likelihood of the plans going ahead calls for the following comments The significance of writing this piece cannot be lost in this same year that the public has come to learn through the Chilcot Enquiry that politicians have been known to clearly ignore legal advise by the highest law officers of the land and to lean on them to change their legal opinion to fit preconceived political aims.

The issues raised by the imposition of a no-fly zone over an independent state such as Libya are of immense international legal significance and must not be treated with levity. They include possible violations of settled international legal principles that grants right of sovereignty to every state, territorial sovereignty and jurisdiction, sovereign equality, self defence, aerial trespass and perhaps aggression.

The UN Charter states explicitly in Article 2 that the Organization is based on the principle of the sovereign equality of all its Members. Article 2 (4) also provides that ‘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 other manner inconsistent with the Purposes of the United Nations.’ International law, therefore, operates upon the principle that each sovereign has absolute power and control over all persons biological or juridical within its territory, it therefore follows that relationships of dominance, subjugation or subordinations cannot be allowed to legitimately exist between independent states.

No fly zones particularly in the manner envisaged by the present government would directly conflict with the provisions and principles of the Chicago Convention (1944), which is the most important codification landmark in Air Law to date. The Convention states:

‘Article 1: The contracting States recognise that every State has complete and exclusive sovereignty over the airspace above its territory.
Article 2: For the purposes of this convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.’

It will be observed that the recognition of complete and exclusive sovereignty granted in Article 1 applies to ‘every state.’ In other words, it is not confined to only contracting states. It is, therefore, of universal importance. The principle of complete and exclusive sovereignty over the superincumbent airspace by the underlying state is unassailable. An old authority on air law Seara Vazquez in his book Cosmic International Law correctly concluded that ‘airspace is that part of space subject to the sovereignty of a state.’

The usual known violations of this settled principle comes in the form of advent of outright military hostilities between states whereupon aerial raids into foreign territory occur. There may also be deliberate incursions into national airspace where states are contesting a boundary or territorial sovereignty over a piece of territory such as in the long standing situation between Cyprus and Turkey. It is also possible that indeliberate incursion into foreign territory may occur due to unexpected events known as force majeure or out of sheer navigational error.

Flights maintained in pursuance of a no-fly zone are, however, very unique, sui generis and highly controversial. The origins of the no-fly zone device are thought to lie in the use of colonial power and in the forceful perpetuation of colonial control. The earliest recorded uses of air power in this way occurred between the two World Wars by the British Royal Air Force (RAF) in air control operations over Somaliland, Mesopotamia, and Aden. At that time, the Royal Air Force used air power to enforce colonial rule, ensure unmolested travel and sanctity of trade routes, and generally maintain control among the population in the region. There are, however, essential differences between these operations and the concept and operations of the no-fly zones developed in the last decade of the 20th century. For instance, the affected peoples of that era had no air forces, no air defences and no sovereignty. Perhaps more importantly the sophisticated treaties of air law including the Chicago Convention had not been created and were not in force. During the Falklands war in 1982, the British armed forces imposed a total exclusion zone in the airspace of their area of operations in the south Atlantic. However, this involved the application of force from all elements of military power – air, sea, and land and occurred mainly over disputed territory. Not until the end of the Gulf War in 1991 did no-fly-zones assume their expanded, modern form.

It is increasingly becoming clear that derogation from the rule that states have complete state sovereignty in their airspace in the form of imposition of no-fly zones is a creation of the political imagination of a select few western military powers -USA, Britain, and France. The most recent uses of this controversial device are the series of so-called no-fly zones enforced against Iraq in its territorial airspace nearly continuously since the Persian Gulf War in 1990.

The legality of the no-fly zones has always been questioned by legal writers particularly those from the developing states but including those states which originally stood against the invasion of Kuwait by Iraq, the facts of which led to the first Persian Gulf war. Immediately after the United States and the allied forces liberated Kuwait, there was allegedly tremendous protest within Iraq. The Iraqi government was alleged to have responded with brutality on the Kurdish Iraqis in the North, on the Shia Muslims in the South and there were tremendous humanitarian difficulties. The United States through its major western allies –Britain and France engineered the creation of these zones through a circuitous route. The allied powers relied upon a UN resolution, Resolution 688, which essentially demanded that Saddam Hussein must stop repressing his own people. The resolution itself interestingly enough never mentioned the creation of no-fly zones. The position advanced by the Western powers was that essentially the best way to make good on this resolution is to deny the Iraqi government the ability to fly planes over large areas of its own country. The zones were delineated in the North in the spring of 1991and in the South in the summer of 1992.

The UK Defence Committee of the House of Commons rationalised the existence of the no-fly zones thus:

‘…the UK is making a valid contribution to stability in the Gulf, protecting the minority people of Iraq from Saddam Hussein and containing Iraq’s ability to threaten its neighbours…. We have no doubt that UK participation in the no-fly zone operations over Iraq is justified on moral and humanitarian grounds…. We welcome in particular the Committee’s recognition that military action is only ever undertaken in response to direct threats from Iraqi forces against coalition aircrew carrying out their humanitarian patrols. The Government remains satisfied that the no fly zones are legally justified as a measure to prevent a humanitarian crisis.’

In reality no-fly zones are not as harmless as they at first appear to the uninformed. The propensity of no-fly zones to lead to war and destruction of lives is proven. The activity of U.S. and British aircraft in the so-called no-fly zones over Iraq led to dozens of severe military conflicts with Iraqi air and ground forces. During the flyovers over Iraqi national territory, missile-bomb strikes were launched at Iraqi forces and sometimes at civilian targets. In December 1998 alone this allegedly resulted in 420 military casualties. Over a thousand civilians were also wounded. The argument that derogation from Iraqi state sovereignty was justifiable on humanitarian grounds rings hollow given the manner in which life and property of Iraqi people had been endangered and destroyed. Moreover, it will appear that politics rather than humanitarian considerations accounted for this creation considering that no UN resolution, treaty or agreement specifically authorised the creation or maintenance of no-fly zones over sovereign state territory.

It is noted that the present British government has argued that its plans to impose no-fly zones are legal in and of themselves and do not require appropriate UN resolutions. Not enough has been said about the grounds upon which the government holds this opinion. In the nature of things the bases for such action are likely to be made up ex post facto after the scheme has started and with the implications of such action already being played out. It is notable that this is not the first time British governments have held this belief. It is, however, the first time since the creation of the UN that it does so without any form of prior and directly relevant Security Council resolution. United Nations resolution against the state it intends to impose or join in the imposition of no-fly zones on.

In a clear sense, therefore, what the UK government plans to do is to impose its own laws, standards, morals or ideas about political leadership on another independent state, albeit one experiencing domestic crisis, while pressing the device of the no-fly zones to the advantage of its preferred factions in a domestic crisis. It may be recalled that when the so-called allied nations imposed no-fly zones over Iraq they were not claiming to do so in Iraqi airspace so as to implement or impose their own national laws. A maximum of three states took part in the direct implementation of the no-fly zones. They also purported to be acting in furtherance of international laws including possibly UN Security Council resolutions. It is notable that on this occasion only the UK has openly considered this option and the Americans have in fact dissociated themselves from the move and stated that military intervention might be counterproductive. [I’m not sure this last statement still holds.]

The erstwhile Secretary of State for Defence Geoff Hoon, in the House of Commons (Hansard, 26 February 2001), while relying on humanitarian justification betrayed the need to link even such justifications with multilateral UN agreement when he stated that: ‘In terms of humanitarian justification, we are entitled to patrol the no-fly zones to prevent a grave humanitarian crisis. That is the legal justification in international law. It does not rest on Resolution 688, although that Resolution supports the position we have adopted’ (HC Deb 26 February 2001 vol 363 cc 620-34). The added problem, therefore, with the current plan is that it cannot rely even indirectly to any appropriately worded resolution of equal providence such as Resolution 688.

In essence a no-fly zone significantly detracts from the right of independence of a state to independence within its territory. A territorial state ought to have unfettered access to all parts of its own territory following the usual tridimensional application of territorial jurisdiction –underground and into the earth’s centre, its surface and its airspace. Territorial states are also entitled to a tridimensional monopoly of violence within national territory, subject of course to applicable humanitarian considerations. This is probably encapsulated in the submission of Henri Lefebvere in The Production of Space that

‘Sovereignty implies “space,” and what is more it implies a space against which violence, whether latent or overt, is directed –a space established and constituted by violence…. Every state is born of violence, and state power endures only by virtue of violence directed towards a space…. A founding violence, and continuous creation by violent means (by fire and blood, in Bismarck’s phrase)—such are the hallmarks of the state.’

This is also supported by Stuart Elden’s latest work on Terror and Territory: The Spatial Extent of Sovereignty. He advises that ‘The control of territory is what makes a state possible. Thus, control of territory accords a specific legitimacy to the violence and determines its spatial extent. Those in control of territory—states—can act in ways those not in control cannot.’ The exercise of any form of violence in the sphere of tridimensionality of a sovereign state by another state is prima facie an affront to that state’s sovereignty just as much as if an entire brigade of guards invades its territory in a dawn advance. The potentials for escalation of disputes caused by policing no-fly zones is patently clear to the extent that a state that does not act or does not act quickly in reaction to blatant acts of aerial trespass becomes even more vulnerable to domestic criticism especially from political rivals and the general populace. In other words, there is an incentive for the embattled government to become even more draconian towards the beneficiaries of the cover that the no-fly zone is supposed to provide. The World Court has also expressed clear jurisprudence against the view that somehow a violation of a state’s airspace is less egregious an act than a violation of any part of its borders. The Military and Paramilitary activities in and against Nicaragua case brought by Nicaragua against the United States, confirmed the erga omnes (non-derogable) nature of the prohibition of violation of national airspace especially where war has not been declared among states. The court noted that respect for State sovereignty, in international law is closely linked with the principles of the prohibition of the use of force and of non-intervention:

‘[T]he basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2. paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory. As to superjacent air space, the 1944 Chicago Convention on International Civil Aviation (Art. 1) reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory. That convention, in conjunction with the 1958 Geneva Convention on the Territorial Sea, further specifies that the sovereignty of the coastal State extends to the territorial sea and to the air space above it, as does the United Nations Convention on the Law of the Sea adopted on 10 December 1982. The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law.’

Yet it must be conceded that selective inaction of the ICAO and the Security Council has allowed a certain degree of permissiveness in this area of the law. The meticulous reports made by the Iraqi state to flagrant violations of its sovereignty to the UN were ignored in their entirety. Allegations of aggressive, dangerous and illegal actions engaged in by the participating coalition aircraft in the so called no-fly zones in Iraq include aerial bombardment of villages resulting in loss of life and destruction of property; endangerment of health by deliberate breaking of the sound barrier; intimidating and illegal search of vessels within national maritime zones; harassment of civilian population; wanton destruction of the livestock and pollution of the environment. Iraq officially communicated over 500 reported incidents that involved alleged violations of Iraqi airspace by the states involved in policing of the controversial no fly zone. It is significant that when the criticisms became stringent, France pulled out of the arrangement. It is equally significant that states such as Saudi Arabia and Turkey were directly accused by Iraq of allowing their territory to be used as launching ground for the trespassing flights. This perhaps attests to the potential of the no-fly zone device to escalate international tensions and to involve a wide number of affected countries. Any precipitate introduction of no-fly zones in Libya increases the possibility of internationalisation of what is presently a domestic dispute. Any neighbouring state permitting British planes to operate over its airspace for the purposes of reaching targets within Libya will also probably become sucked into the conflict.

On the whole the no-fly-zones device in international relations has not received the authoritative treatment in international law that it deserves principally as a result of power politics. The practice has been left in the shadows of international practice perhaps deliberately by those that recognise its usefulness in acting against perceived weak states. In this way international action is dictated by the exigencies of western superpower influence and coordination. Power politics, however, must never be allowed to lead international law. When the USSR sponsored draft resolution to condemn the incursion of United States U2 spy aircraft into Soviet airspace as aggressive it received only the support of Poland. Similarly complaints by the few states that have faced no-fly zones sanctions have received little support in the international fora. Should the Libyan government succeed in downing British aircraft involved in the policing of no-fly zones it will appear to have been acting within the full exercise of its right of self defence. This is why British air troops should not be exposed needlessly to such danger.

This is not to say that there can be no situation under which no-fly zones may be legitimately envisaged. The point is that serious derogations from territorial sovereignty as this may arise only in a very limited category of cases. Such instances are best typified by the example of actions specifically undertaken with respect to Chapter VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, And Acts of Aggression). If a blockade of Libyan airspace is found to be desirable in the present circumstances, the Security Council may under Article 41 of the Charter impose such action ‘… by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

In the absence of such collective determination and action within recognised international law and within the confines of the pertinent provision of the UN Charter the plans of the UK government in introducing no-fly zones over Libya will be illegitimate under international law and will damage the UK’s standing as a law abiding and responsible state in the international system.”

March 9: Jonathan Wright has nine good reasons “Why the US and Its Friends Should Stay Out of Libya.”

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