The Duty to Protect and the Reform of the United Nations - A New Step in the Development of International Law?

Max Planck Yearbook of United Nations Law

Volumn 10, Issue , 2006, Pages 35-69

  Hilpold, Peter ^a  

^a NONE

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EID: 34547097737     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: 10.1163/187574106x00029     Document Type: Article

References (122)

1. See on this issue Th.M. Franck, “Preemption, Prevention and Anticipatory Self-Defense: New Law Regulating Recourse to Force?”, Hastings Int'l & Comp. L. Rev. 28 (2004), 425 et seq.
2. Of course, there was also the attempt by the Secretary-General to overcome criticism regarding allegations of personal mismanagement but this criticism may also not be unrelated to his position on the controversy between multilateralism and unilateralism in international relations.
3. This was the famous “fork in the road”-speech where he asked the governments to decide whether it was possible to continue on the basis agreed in 1945, or whether radical changes were needed. See under .
4. See also H. Corell, “Reforming the United Nations”, International Organizations Law Review 2 (2005), 373 et seq. (374). Also in the time before the Secretary-General had made clear that this was a very important subject to him.
5. “We must protect vulnerable people by finding better ways to enforce humanitarian and human rights law, and to ensure that gross violations do not go unpunished. National sovereignty offers vital protection to small and weak States, but it should not be a shield for crimes against humanity.” See under .
6. See the ground-breaking report entitled An Agenda for Peace, Doc. A/47/277-S/24111 of 17 June 1992 presented by Boutros Boutros-Ghali, see under .
7. See also the followup document, An Agenda for Peace, Supplement, Doc. A/50/60-S/1995/1 of 3 January 1995, see under .
8. See on the following process also P. Hilpold, “Reforming the United Nations: New Proposals in a Long-lasting Endeavour”, NILR 52 (2005), 389 et seq.
9. See A more secure world: Our shared responsibility, Report of the High-level Panel on Threats, Challenges and Change, Doc. A/59/565 of 2 December 2004.
10. Doc. A/59/2005 of 21 March 2005.
11. To be fair, it must, however, also be mentioned that the whole reform discussion was poorly planned and followed a chaotic path. See D.M. Malone, “Threats, Challenges, and Change: The Secretary-General's High-Level Panel”, ASIL 99 (2005), 58 et seq. (60).
12. See N. Schrijver, “Editorial: UN Reform: A once-in-a-generation opportunity?”, International Organizations Law Review 2 (2005), 271 et seq. (273).
13. Revised draft outcome document of the High-level Plenary Mtg of the General Assembly of September 2005 submitted by the President of the General Assembly, 8 June 2005, Doc. A/59/HLPM/CRP.1/Rev.1.
14. 2005 World Summit Outcome, A/RES/60/1 of 16 September 2005.
15. Most prominent are the introduction of a Peacebuilding Commission (foreseen in para. 97 et seq. of the Outcome Document/cf. also para. 261 et seq. of the HLP Report) and the transformation of the Commission on Human Rights into a Human Rights Council (see para. 157 et seq. of the Outcome Document/cf. also para. 282 et seq. of the HLP Report).
16. Schrijver, see note 10, 273.
17. See extensively on this issue also P. Hilpold, “Die Vereinten Nationen und das Gewaltverbot”, Vereinte Nationen 53 (2005), 81 et seq.
18. See L. Henkin, “Kosovo and the Law of 'Humanitarian Intervention'”, AJIL 93 (1999), 824 et seq.;
19. St. Wheatley, “The Foreign Affairs Select Committee Report on Kosovo: NATO Action and Humanitarian Intervention”, Journal of Conflict and Security Law 5 (2000), 261 et seq.;
20. Ch. Greenwood, “International Law and the NATO Intervention in Kosovo”, ICLQ 49 (2000), 926 et seq.;
21. I.F. Dekker, “Illegality and Legitimacy of Humanitarian Intervention: Synopsis of and Comments on a Dutch Report”, Journal of Conflict and Security Law 6 (2001), 115 et seq.;
22. N.J. Wheeler, “Legitimating Humanitarian Intervention: Principles and Procedures”, Melbourne Journal of International Law 2 (2001), 550 et seq.;
23. R. Zacklin, “Beyond Kosovo: The United Nations and Humanitarian Intervention”, in: D. Freestone et al. (eds), Contemporary Issues in International Law, 2002, 219 et seq.
24. For a comprehensive definition of such a position see, for example, F.R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, 2005.
25. See P. Hilpold, “Humanitarian Intervention: Is There a Need for a Legal Reappraisal?”, EJIL 12 (2001), 437 et seq.
26. It must, however, also be mentioned that several contemporaneous writers considered these events as expression of a proper right to humanitarian intervention. See, for example, T.S. Woolsey, Introduction to the Study of International Law, 1875; A. Rougier, “La théorie de l'intervention d'humanité”, RGDIP 17 (1910), 468 et seq. (489);
27. A. Arntz, in: G. Rolin-Jaequemyns, “Note sur la théorie du droit d'intervention, à propos d'une lettre de M. le professeur Arntz”, Revue de droit international et de législation comparée (1876), 675
28. J.K. Bluntschli, Das moderne Völkerrecht der civilisierten Staaten als Rechtsbuch dargestellt, 1868, at para. 478.
29. See also P. Pradier-Fodéré, Traité de droit international public européen et américain, 1885, para. 430: “[...] les actes d'inhumanité, quelque condamnables qu'ils soient, tant qu'ils ne portent aucune menace aux droits des autres Etats, ne donnent à ces derniers aucun droit d'intervention, car nul Etat peut s'ériger en juge de la conduite des autres, tant qu'ils ne lèsent pas les droits des autres Puissances et de leur ressortissants, ils sont l'affaire des seuls nationaux du pays ou ils sont commis.”
30. This was particularly true with regard to the lot of Christians in the Ottoman Empire. It can be argued that the theory of humanitarian intervention developed in the 19th century more or less around this issue. See, in this sense, already L. Le Fur, “L'intervention pour cause d'humanité”, in: Vitoria et Suarez, Contribution des théologiens au droit international moderne, 1939, 237.
31. The joint intervention of the United Kingdom, France and Russia in favour of Greek insurgents in 1827 took place after atrocities had been committed by the rulers against the Greek population and notice of these events had spread to Western Europe. French intervention in favour of Christian minorities in Lebanon took place in 1860 after these groups were harassed and attacked by Druses and Muslims. The U.S. intervention in Cuba in 1898 was preceded by massive human rights abuses by the Spanish authorities trying to quell local opposition. These events had caused outrage in the United States. See extensively on these and further cases of humanitarian intervention A. Pauer, Die humanitäre Intervention, 1985, 44 et seq.
32. See, for example, Pauer, see above, 75 and H. Köchler, Humanitarian Intervention in the Context of Modern Power Politics, International Progress Organization: Studies in International Relations, Vol. XXVI, 2001, 5 et seq.
33. According to this writer's view, however, such a negative view does not do full justice to the facts. As already stated, the governments' decisions to intervene were regularly (also) prompted by domestic public opinion enraged about human rights abuses in third countries. See also A. Mandelstam, “La protection des minorités”, RdC 1923 (I), 367 et seq. (379): “Il serait injuste d'attribuer ces interventions collectives à des motifs d'égoïsme national.” That in these cases egoistic political motives were - to a greater or lesser extent - also at play cannot, of course, be denied. This becomes evident, for example, if one looks again at the U.S. intervention in Cuba as the relative decision was also influenced by U.S. hegemonial aspirations.
34. See A. Randelzhofer, “Commentary to Art. 2(4)”, in: B. Simma (ed.), The Charter of the United Nations - A Commentary, 2002, 112 et seq. (129, para. 52).
35. This is true notwithstanding the fact that there is disagreement about the exact contours of this area. For rights as the prohibition of slavery or torture there can be no doubt as to the pertinence to this field. With regard to torture see the “Pinochet-case”, R.V. Bow Street Stipendiary Magistrate and others, ex p. Pinochet Ugarte (Amnesty International and others intervening), (1998) 4 All E.R. 897.
36. See Ch. Gray, “The legality of NATO's military action in Kosovo: is there a right of humanitarian intervention?”, in: S. Yee/W. Tieya (eds), International Law in the Post-Cold War World - Essays in memory of Li Haopei, 2001, 240 et seq. (251).
37. See, for example, A.D. D'Amato, “The invasion of Panama was a lawful response to tyranny”, AJIL 84 (1990), 516 et seq. D'Amato submits that the core understanding of Article 2 (4) of the UN Charter is directed at outlawing the use of military force for the purpose of territorial aggrandizement or colonialism
38. See, for example, F.K. Abiew, The evolution of the doctrine and practice of humanitarian intervention, 1999, 61 et seq.
39. M.T. Karoubi, “Unilateral use of armed force and the challenge of humanitarian intervention in International Law”, Asian Yearbook of International Law 10 (2001-2002), 95 et seq. (118).
40. The intervention by the U.S. in Iraq together with the “coalition of the willing” could also be considered as a humanitarian intervention but the relevant intent was only one element among many and it could hardly be considered the most important one, neither officially nor in fact. If one tries to shed some light on the thicket of mutually contradictory justifications for this intervention it seems that it was the alleged possession of weapons of mass destruction by the Iraqi government that gave the decisive impetus for this military operation even though the suspicion proved to be unwarranted at the end.
41. This was, in particular, the case with the U.S. intervention in the Dominican Republic. See Pauer, see note 19, 156 and S.D. Murphy, Humanitarian Intervention - The United States in an Evolving Order, 1996, 94.
42. It should also be remembered that even Indonesia justified her intervention in East Timor in 1975 referring inter alia to humanitarian considerations while it was more than evident that this intervention happened as a flagrant violation of basic principles of international law. See P. Hilpold, Der Osttimor-Fall, 1996.
43. That such condemnation came from the People's Republic of China can be explained in view of the rivalry between these countries in South East Asia. It appears more difficult to qualify the criticism by Western democracies as appropriate. True, these declarations were also primarily inspired by ideological considerations. On the other hand the situation in Cambodia under the Khmer Rouge regime was so outrageous that democracies which strongly identify with the fight against Nazi Germany can hardly condemn the termination of a genocidal regime without becoming contradictory. See, for example, the statement by the French representative in the Security Council, SCOR, 34th Year, 2109th Mtg, para. 36:
44. “The notion that because a regime is detestable foreign intervention is justified and forcible overthrow is legitimate is extremely dangerous. That could ultimately jeopardize the very maintenance of international law and order and make the continued existence of various regimes dependent on the judgment of their neighbours.” For a very critical statement with regard to the position taken by the state community in this case see R. Falk, “The Complexities of Humanitarian Intervention: A New World Order Challenge”, Mich. J. Int'l L. 17 (1996), 491 et seq. (504 et seq.). On the other hand, the elimination of the blood-thirsty regime of Idi Amin in Uganda by Tanzanian forces was greeted by the world community.
45. See, for a very prominent author advocating the existence of such a right Ch. Greenwood, “Humanitarian Intervention: The Case of Kosovo”, Finnish Yearbook of International Law 10 (1999), 141 et seq., with further references.
46. Case Concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), Order of 2 June 1999, ICJ Reports 1999, 124 et seq.
47. See M.J. Glennon, “The Rise and Fall of the U.N. Charter's Use of Force Rules”, Hastings Int'l & Comp. L. Rev. 27 (2004), 497 et seq. (503).
48. See generally on the role of the lawyers in the international law creation process R. Jennings, “International Lawyers and the Progressive Development of International Law”, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21th Century, 1996, 413 et seq. (414): “[...] it remains broadly true that the professional international lawyers, including academics, have much more say in the shaping of international law, whether in treaty or in customary law form, than do their counterparts in domestic law making and changing. This is a very important competence and responsibility.”
49. The most prominent norm having been identified as an “emerging” one is without doubt the “right to democratic governance” by Thomas Franck. See Th. Franck, “The Emerging Right to Democratic Governance”, AJIL 86 (1992), 46 et seq.
50. The title of the relevant article in which this theory was first fully developed is revealing: “Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?”, EJIL 10 (1999), 23 et seq., the question mark indicating in this case a cautious answer in the affirmative.
51. See “Sezession und humanitäre Intervention - völkerrechtliche Instrumente zur Bewältigung innerstaatlicher Konflikte?”, Zeitschrift für Öffentliches Recht 54 (1999), 529 et seq. (584 et seq.); Hilpold, see note 18, 455 et seq.
52. See, for example, L.C. Buchheit, The Legitimacy of Self-Determination, 1978;
53. D. Murswiek, “The Issues of a Right of Secession - Reconsidered”, in: Ch. Tomuschat (ed.), Modern Law of Self-Determination, 1993, 21 et seq.;
54. A. Tancredi, La secessione nel diritto internazionale, 2001.
55. See on this issue, for example, G. Hafner, Risks Ensuing from Fragmentation of International Law, Doc. ILC (LII)/WG/LT/L.1/Add.1 (2000).
56. See B. Simma, “Zur völkerrechtlichen Bedeutung von Resolutionen der UN-Generalversammlung”, in: R. Bernhardt et al., Fünftes deutsch-polnisches Juristen-Kolloquium, 1981, 45 et seq. (58 et seq.)
57. referring to M.S. McDougal, “The Hydrogen Bomb Tests and the International Law of the Sea”, AJIL 49 (1955), 356 et seq.
58. See UN Press Release SG/SM/6938 of 24 March 1999.
59. A/RES/55/2 of 8 September 2000.
60. See also in this regard the discussion about a new international solidarity. See K. Wellens, “Solidarity as a Constitutional Principle: Its Expanding Role and Inherent Limitation”, in: R.St.J. Macdonald/M. Johnston (eds), Towards World Constitutionalism, 2005, 775 et seq.;
61. P. Hilpold, “Solidarität als Rechtsprinzip - völkerrechtliche, europarechtliche und staatsrechtliche Betrachtungen”, to be published in: Jahrbuch des öffentlichen Rechts (2007).
62. This statement was made by the Secretary-General on the occasion of his Nobel Peace Prize Lecture in Oslo in December 2003. See G. Evans, “The Responsibility to Protect: Rethinking Humanitarian Intervention”, see under .
63. See N. Schrijver et al., “Reforming the United Nations: A Closer Look at the Annan Report”, NILR 52 (2005), 319 et seq. (321 et seq.).
64. This report is also available under .
65. A/RES/377 (V) of 3 November 1950.
66. In fact, the inactivity of the Security Council does not necessarily provide a legal justification for the General Assembly to intervene. Furthermore, in view of the composition and the way of functioning of this organ it seems rather improbable that it will operate more effectively than the Security Council.
67. ICISS Report, see note 44, page XIII. See also page 53 et seq., para. 6.31 et seq.
68. On the problem of authorization for the use of force in general see P. Picone, “Le autorizzazioni all'uso della forza tra sistema delle Nazioni Unite e Diritto Internazionale generale”, Riv. Dir. Int. 88 (2005), 5 et seq.
69. See B. Simma, “NATO, the UN and the Use of Force: Legal Aspects”, EJIL 10 (1999), 1 et seq. (11); Hilpold, see note 18, 448.
70. This is not to deny the very important role regional organizations can play for the maintenance of international peace and security. See R. Burchill, “Regional organizations and the promotion of democracy as a contribution to international peace and security”, in: R. Burchill et al. (eds), International Conflict and Security Law - Essays in Memory of Hilaire McCoubrey, 2005, 209 et seq.
71. See A. Acharya, “Redefining the Dilemma of Humanitarian Intervention”, Australian Journal of International Affairs 56 (2002), 373 et seq. (373).
72. See ICISS Report, see note 44, 9, para. 1.40.
73. For a comment on this report see J.I. Levitt, “The Responsibility to Protect: A Beaver without a Dam?”, Mich. J. Int'l L. 24 (2003), 153 et seq. for whom, however, the approach of the ICISS was not far-reaching enough. In particular he deplored that this report failed to suggest ways to encourage state authorities to act on the responsibility to protect
74. See T. Ruys, “Reshaping Unilateral and Multilateral Use of Force: The Work of the UN High Level Panel on Threats, Challenges and Change”, International Law Forum 7 (2005), 92 et seq. (96).
75. See M. Odello, “Commentary on the United Nations High-Level Panel on Threats, Challenges and Change”, Journal of Conflict & Security Law 10 (2005), 231 et seq. (235).
76. For this reason this author does not feel the criteria introduced would hamper the activity by the Security Council as was feared by some authors. See, for example, A.M. Slaughter, “Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform”, AJIL 99 (2005), 619 et seq. (626 et seq.): “This approach, as some commentators have already decried, sounds like a recipe for further inaction by the Council, giving members five new criteria to argue about while Rome, or Rwanda, or Darfur, burn.” Professor Slaughter believes, however, that the substantial expansion of Security Council jurisdiction, also proposed by the HLP Report, could counterbalance this effect. Professor Benedetto Conforti is generally critical towards the approach taken by the HLP in this field: “[...] ci si aspetterebbe, che, almeno nei casi estremi, interventi unilaterali [...] fossero considerati tollerabili, in conformità a quanto una parte della dottrina sostiene.” And: “Dunque, una norma emergente, che... riprodurrebbe quanto già si ricava chiaramente dalla Carta,”
77. see B. Conforti, “Il rapporto del 'high-level panel' sul come rendere più efficace l'azione dell'ONU, ovvero la montagna ha partorito un topo!”, Riv. Dir. Int. 88 (2005), 149 et seq. (150).
78. See P. Hilpold, “The Continuing Modernity of Article 2(4) of the UN Charter”, in: W. Ingenhaeff et al. (eds), Festschrift Rudolf Palme, 2002, 281 et seq. (290).
79. See HLP Report, 3.
80. See Y.Z. Blum, “Proposals for UN Security Council Reform”, AJIL 99 (2005), 632 et seq. and Hilpold, see note 15, 86.
81. See HLP Report, para. 188.
82. Case concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Report 1986, 14 et seq.
83. Oil Platforms, Islamic Republic of Iran v. United States of America, ICJ Report 2003, 161 et seq.
84. According to the ICJ it is necessary to distinguish “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms”, since “[i]n the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack”, ICJ Reports 1986, 101, para. 191 and 103, para. 195; ICJ Reports 2003, 27, para. 51.
85. See A. Randelzhofer, “Commentary to Art. 51”, in: Simma, see note 21, 803, para. 39 with further references.
86. See also I. Brownlie, International Law and the Use of Force by States, 1963, 275 et seq.;
87. L. Henkin, How Nations Behave: Law and Foreign Policy, 1979, 141.
88. See the letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington, “Correspondence between Great Britain and the United States, respecting the Arrest and Imprisonment of Mr. Mc Lead, for the Destruction of the Steamboat Caroline, March/April 1841”, British and Foreign State Papers 39 (1857), 1126 et seq. (1138)
89. cited according to J. Yoo, “International Law and the War in Iraq”, AJIL 97 (2003), 563 et seq. (572). As has been written, the magnitude of a threat should therefore be judged on the basis of “radicalism and technology”, “that is, political and religious extremism joined by the availability of weapons of mass destruction.”
90. See J.G. Castel, “The Legality and Legitimacy of Unilateral Armed Intervention in an Age of Terror, Neo-Imperialism, and Massive Violations of Human Rights: Is International Law Evolving in the Right Direction?”, CYIL 42 (2004), 3 et seq. (13).
91. This case regarded deployment of Soviet nuclear weapons on Cuba in 1962. See M.S. McDougal, “The Soviet-Cuban Quarantine and Self-Defense”, AJIL 57 (1963), 597 et seq.:
92. Among these countries, first of all Israel and the United States have to be mentioned. The most notorious act carried out by Israel was the destruction of an Iraqi nuclear reactor in 1981 while the United States acted in the last years pre-emptively against Afghanistan, Iraq and the Sudan. The bombing of Libya ordered by Ronald Reagan in 1986 probably had more a retaliatory character than the nature of a pre-emptive strike.
93. See in this sense also the ICJ in the Nicaragua case, ICJ Report 1986, 98 et seq. This is true even though the recent conflict on the Iran nuclear programme may be seen as providing further arguments in favour of the advocates of a re-definition of what constitutes “imminence” of an attack.
94. As has been correctly remarked, in this sense the position by the HLP is in its final consequence very similar to that taken by the authors of the U.S. American National Security Strategy. See I. Johnstone, “Threats, Challenges, and Change: The Secretary-General's High-Level Panel”, ASIL 99 (2005), 57 et seq. (62).
95. See also A. Cassese, “Article 51”, in: J.P. Cot et al., La Charte des Nations Unies - Commentaire article par article, 2005, 1329 et seq. (1342), who is also critical about the approach taken by the HLP in view of possible abuses. He proposes rather a modification of Article 51 of the Charter together with a conditional approach which should again rule out abuses. As explained above, however, the view taken here is that, in the end, such an approach is difficult to implement and cannot rule out abuse.
96. The words “to visit again the military option” may also cause some perplexity. It is assumed that the military option has to be examined by the Security Council and it is not up to the individual state to decide.
97. See, in this sense, in particular M.S. McDougal/F.P. Feliciano, Law and Minimum World Public Order, 1961, 232 et seq.
98. See Y. Dinstein, War, Aggression and Self-Defence, 2005, 184 et seq. who clearly pointed out that between 1928, when the Briand-Kellogg Pact was stipulated and 1945, when the UN Charter came into force, there were no preventive wars that could have constituted state practice for such a customary law development. While the ICJ stated in the Nicaragua case that there existed a customary right to self-defence alongside the one in Article 51 of the Charter it cannot be sustained that the material content of customary law in this field would go beyond Charter law
99. See para. 135 of the Annan Report, see note 8.
100. See, for example, R. Higgins, “The New United Nations: Appearance and Reality”, in: D. Freestone et al. (eds) Contemporary Issues in International Law, 2002, 143 et seq. (151) and Hilpold, see note 61.
101. Johnstone, see note 75, 64, pointedly - and probably a little bit too pessimistically - remarks that “material power and hard bargaining over interests are all that matters in the Security Council, and [...] deliberation and persuasion on the basis of norms count for nothing.” Therefore, “legal quibbles” are futile.
102. See M. Toufayan, “A Return to Communitarism? - Reacting to 'Serious Breaches of Obligations Arising under Peremptory Norms of General International Law' under the Law of State Responsibility and United Nations Law”, CYIL 42 (2004), 197 et seq. (200 et seq.) who ponders whether the concept of complicity could be referred to in order to hold the respective states responsible. On the wide discretion the Security Council enjoys when it discharges its duties resulting from the Charter see also Dinstein, see note 79, 283.
103. Ping Document, see note 11, para. 75 et seq.
104. World Summit Outcome, see the A/RES/60/1 of 16 September 2005.
105. See under .
106. See on this issue E. Bohne, “Die Europäische Sicherheitsstrategie und die Nationale Sicherheitsstrategie der USA im Vergleich”, in: S. Brink/H.A. Wolff (eds), Gemeinwohl und Verantwortung - Festschrift für Hans Herbert von Arnim zum 65. Geburtstag, 2004, 43 et seq.
107. P. Hilpold, “Gewaltverbot und Selbstverteidigung - zwei Eckpfeiler des Völkerrechts auf dem Prüfstand”, Juristische Arbeitsblätter 38 (2006), 234 et seq.;
108. Ch. Gray, “The US National Security Strategy and the New 'Bush Doctrine' on Pre-emptive Self-Defence”, Chinese Journal of International Law 1 (2002), 437 et seq.
109. See L. Boisson de Chazournes, “La réforme des Nations Unies: à propos des réponses aux menaces à la paix et à la sécurité internationales”, International Law Forum 7 (2005), 84 et seq. who wrote that there is a “risque de 'securiser' l'action des Nations Unies dans ses multiples domaines de compétence”, (85).
110. A/RES/60/180 of 20 December 2005.
111. A/RES/60/251 of 15 March 2006.
112. All too often it is forgotten what the Permanent Court of International Justice stated in 1923, in its fourth Advisory Opinion on the Nationality Decrees in Tunisia and Morocco (PCIJ, Series B, No. 4, 1923, page 24): “The question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends upon the development of international relations.” Therefore, there is no rigid distinction between “internal” and “external” questions. There is rather a “moving scale” which takes into account the evolution of international law.
113. See G. Abi-Saab, “Some Thoughts on the Principle of Non-Intervention”, in: K. Wellens (ed.), International Law: Theory and Practice - Essays in Honour of Eric Suy, 1998, 225 et seq. (230).
114. See also C.N. Gregory, “An Important Decision by the Permanent Court of International Justice”, AJIL 17 (1923), 298 et seq. (301).
115. See O. Schachter, International Law in Theory and Practice, 1991, 118 et seq.: “[The Charter] is, like every constitutional instrument, continuously interpreted, moulded and adapted to meet the interests of the parties.”
116. See, in this sense, the brilliant comparison made by Rein Müllerson: “For some, the UN Charter seems to have acquired certain characteristics of the Holy Books - either the Bible or the Koran. One cannot change it, one has to believe in it and even swear allegiance to it, but at the same time, one can hardly live by it. However, fundamentalism in the Charter may be almost as dangerous as Biblical or Koranic fundamentalisms. Literal and non-contextual interpretation of any text - be they religious or secular texts - is bound to lead to social impasse. If in the case of holy texts such interpretation sometimes guides towards, and justifies, violence, in the case of the UN Charter, it may, on the contrary, be one of the causes of the inability to adequately respond to violence,” see R. Müllerson, “The Law of Use of Force at the Turn of the Millennium”, Baltic Yearbook of International Law 3 (2003), 191 et seq. (199).
117. See in this sense also N.D. White, “Self-defence, Security Council authority and Iraq”, in: Burchill, see note 52, 235 et seq. who strongly criticizes the approach taken by the National Security Strategy.
118. See Th. Meron, The Humanization of International Law, 2006.
119. See B.G. Ramcharan, “The United Nations and New Threats, Challenges and Change: The Report of the High-Level Panel”, in: R.St. Macdonald/D.M. Johnston (eds), Towards World Constitutionalism, 2005, 911 et seq.
120. See D. Thürer, “The Democratization of Contemporary International Law-Making, Processes and the Differentiation of Their Application”, in: R. Wolfrum (ed.), Developments of International Law in Treaty Making, 2005, 53 et seq. (57).
121. See J. Marriot for the English High Court of Admiralty in: “The Renard” (1788); 1 Hay & M. 222 (224), I Rose. P.C. (1778)
122. cited according to A. Verdross/H.F. Köck, “Natural Law: The Tradition of Universal Reason and Authority”, in: R.St.J. Macdonald/D.M. Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory, 1986, 39 et seq.