Suspending sovereignty: Reassessing the interlocking of occupation, failed and fragile state, responsibility to protect, and international trusteeship (lessons from Lebanon)

Israel Law Review

Volumn 41, Issue 1-2, 2008, Pages 302-330

  Gal Or, Noemi ^a  

^a NONE

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EID: 84870893339     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700000248     Document Type: Article

References (157)

1. Nkambo Mugerwa, Subjects of International Law, in Manual of Public International Law 253 (Max S$rensen ed., 1968).
2. Id.; David Ruzié, Droit International Public (2ème Partie, 1975).
3. Perhaps the definition relating to music is the most accurate: “The action of deferring the progression of a part in harmony by prolonging a note of a chord into the following chord, usually producing a temporary discord, an insistence of this, a discord so produced …” The Shorter Oxford English Dictionary 2094 (3d ed. 1968) (emphasis added N.G.-O.). I will not elaborate on the relevance of consent in municipal law due to lack of space.
4. These modes are extremely varied and include, for instance, the particular state of sovereignty of Hong Kong prior to and following the 1984 Sino-British Joint Declaration; Cyprus, especially since 1974; Haiti, Kosovo (Serbia), Somalia (beginning with the 1990s until the writing of this Paper); and Lebanon since the mid 1970s, to mention a few examples. More examples will be addressed herein.
5. See treatment of this concept in Canada Department of Foreign Affairs and International Trade at http://geo.international.gc.ca/cip-pic/current_discussions/fragile-resources-en.aspx (last visited Jan. 28, 2008).
6. First conceived in the International Commission on Intervention and State Sovereignty 2001, The Responsibility to Protect, International Commission on Intervention and State Sovereignty (Dec. 2001), available at http://www.iciss.ca/report-en.asp. See Section III B infra for a discussion on R2P.
7. See also The Hague Convention No. II, Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, July 29, 1899, 187 Consol. T.S. 429 (1900)
8. The 1907 Hague Convention No. IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907
9. its annex: Regulations Concerning the Laws and Customs of War on Land, Oct. 18,1907, 36 Stat. 2277, 2306
10. The Ethiopian and Eritrean mingling in Somalia's affairs; US Warns Eritrea, Ethiopia on Somalia, ABC News Online, July 30 2006, available at http://www.abc.net.au/news/newsitems/200607/sl700601.htm.
11. Independent Panel on Canada's Future Role in Afghanistan, Report to the Canada Department of Foreign Affairs ad International Trade (Jan. 2008), available at http://www.canada-afghanistan.gc.ca/cip-pic/afghanistan/library/docs-en.asp;
12. Rahimullah Yusufzai, Waziristan: Bin Laden's Hiding Place?, BBC News, Mar. 4, 2004, available at http://news.bbc.co.Uk/2/hi/south_ asia/3532841.stm.
13. Kosovo's unsettled status and Serbia's lack of effective control over the area; Daniel McLaughlin, A Declaration of Independence—or War?, Dec. 7, 2007, The Independent, available at http://www.independent.co.uk/news/europe/a-declaration-of-independence~or-war-763560.html. This situation has changed since Kosovo's declaration of independence of February 17, 2008, and the accumulating international recognition, e.g. by the Government of Canada on March 18, 2008. available at http://news.gc.ca/web/view/en/index.jsp?articleid=386299.
14. Canada Department of Foreign Affairs and International Trade, Reconstructing Haiti at http://geo.international.gc.ca/cip-pic/current_discussions/reconstructinghaiti-en.aspx (last visited May 27, 2008).
15. Conscious of the current debate (discussed later herein), I prefer to use “concept” rather than “norm” to the R2P.
16. Press Release, Axworthy Launches International Commission on Intervention and State Sovereignty, available at http://www.iciss.ca/pressl-en.asp (last visited Jan. 28, 2008).
17. International Commission on Intervention and State Sovereignty, Axworthy Launches International Commission on Intervention and State Sovereignty.
18. The High-level Panel on Threats, Challenges and Change, Executive Summary, ¶ 203, U.N. Doc. A/59/565, (Dec. 2, 2004), available at www.un.org/secureworld [hereinafter A More Secure World]. The report specifies the following: We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.
19. Id. at ¶ 203.
20. Reaffirmed in S.C. Res. 1674, U.N. Doc. S/RES/1674 (Apr. 28, 2006) Arguably, “serious violations” of international humanitarian law is a very broad characterization.
21. Id. at 4.
22. But explicit nonetheless, cf. José E. Alvarez, Notes from the President, 23 ASIL Newsletter 1 (Summer 2007).
23. A More Secure World, ASIL Newsletter, at ¶ 199.
24. Id. ¶ 201.
25. Id. While it does not yet elaborate on other possible instances of “avoidable catastrophe” in and from “shattered states,” it envisages such possibility by stating that “to redress catastrophic internal wrongs [the international community] is prepared to declare that the situation is a ‘threat to international peace and security’ [which] is not especially difficult when breaches of international law are involved.” Id. ¶ 202.
26. The report reflects the international community's indecisiveness concerning the available and appropriate means to tackle such a situation: There has been, as a result, a long-standing argument in the international community between those who insist on a “right to intervene” in man-made catastrophes and those who argue that the Security Council, for all its powers under Chapter VII to “maintain or restore international security,” is prohibited from authorizing any coercive action against sovereign States for whatever happens within their borders. Id. While some interpret this debate as driven by advocates of a revival of hegemonic/imperialist designs of international law on the one hand (for this comment I am indebted to an anonymous reviewer), it can also be read as leaving the door open for a wider interpretation of the means available to address the threat, namely within the “spanning a continuum involving prevention, response to violence, if necessary, and rebuilding shattered societies,” on the other hand. Id. Certainly, the U.N. authorized foreign military intervention at the contemporary stage of legal development excludes pre-emptive action. Alvarez attributes precisely such intention to the U.S. protagonists of the R2P: “R2P treats sovereignty as more hindrance than protection and the U.N. Charter less as sovereignty's guarantor than the guarantor of the rights of individuals.” Alvarez, Id, at 12. Intervention is permissible only in situations of international armed conflict ox post helium, e.g., peacekeeping, peace-building but also in new post 9/11 borderline situations as the Afghanistan intervention mode suggests.
27. This should absolutely not be confused with what Alvarez refers to as imperial driven “conditional sovereignty” (Alvarez, Id, at 11).
28. Formerly referred to in the U.N. Charter as self-government and independence.
29. Lebanon's seven-point plan's suggestion to place the Shab'a Farms under United Nations jurisdiction pending a permanent delineation of the boundary more than hints at such possibility. S.C. Res. 392, ¶ 62, U.N. Doc. S/RES/392 (2007)
30. Report of the Secretary-General on the Implementation of Security Council Resolution 1701 (2006), 10, S.C. Res. 147, U.N. Doc. S/2007/147 (Mar. 14, 2007)
31. see chapter “G. Delineation of Borders”.
32. Belligerent occupation is normally considered a situation where the direct occupant (of the occupied population's territory) is a state, e.g., Germany following World War II, or Israel's occupation of foreign territories following June 1967. Alternatively, a situation of non-international armed conflict, where land comes under the control of the warring parties, is not de jure qualified as occupation, even when effective control is established.
33. Also characteristic of the Somalia case, see U.N. Doc.
34. Reflected in Article 43 of the 1907 Hague Regulations, see Eyal Benvenisti, The International Law of Occupation 27, 30 (2nd ed. 2004).
35. See also Grant T. Harris, The Era of Multilateral Occupation, 24 Berkeley J. Int'l L. 3 (2006).
36. They crystallized, among others, in the Hague Convention (IV), Berkeley J. Int'l L.
37. The Lieber Code instructing the conduct of the U.S. forces in the American Civil War is considered a chief foundational source of this shift. See Harris, Berkeley J. Int'l L, at 4.
38. For post WWII developments see, ICRC. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516
39. see also Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, art. 5, Dec. 12, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol I].
40. Most recently, the US Army/Marine Corps Counterinsurgency Field Manual of 2007 has put security for civilians as a priority preceding the destruction of the enemy. United States Army and United States Marine Corps, U.S. Army/Marine Counterinsurgency Field Manual (2007) [hereinafter U.S. Army/Marine Counterinsurgency Field Manual].
41. See also Fund for Peace, The Bosphorus Consensus Declaration (2007).
42. See also Benvenisti, The Bosphorus Consensus Declaration, at 98–99.
43. Id. at 5.
44. For effective control see also Aeyal M. Gross, The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation, 19 Lieden J. Int'l L. 1–48 (2006)
45. Yuval Shany, Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement, Y.B. Int'l Human. Rts. L. (forthcoming 2008).
46. Benvenisti, Y.B. Int'l Human. Rts. L, at 5.
47. With the exception of the Israeli occupation after the 1967 war, all other occupants after World War II refrained from resorting to The Hague Regulations or the Fourth Geneva Convention as the source of their authority or as a guide to their actions. The propensity to avoid the regime of occupation is particularly noticeable in the various occupations of the 1970s and early 1980s. These occupations, the international reaction to them, and other international developments during this era, have greatly complicated the law of occupation.
48. Id. at 180.
49. Recent occupants did not view themselves as occupants and, for reasons discussed above, preferred to confer responsibility on local governments they established. As a result, occupants—except for Israel with regard to the territories occupied in 1967—did not have to struggle with the adaptation of the law of occupation to the contemporary challenges of administration. Thus, for example, aside from the interpretation of Article 43 of the Hague Regulations by Israeli institutions, no other state practice with regards to this basic article exists after World War II.
50. Id. at 182, cf also 189–90.
51. This observation has been put to test following the recent 2003 invasion of Iraq by the U.S. led “Coalition of the Willing.” While the U.S. and British positions on Iraq's post bellum situation and pre-establishment of the fledgling Iraqi government are framed within the formal law of occupation, the extent to which this stance is indeed reflected in deeds and compliance, is debatable. Harris refers to a political “New Model” of multilateral occupation which deviates from the former's emphasis on basic humanitarian provisions, and favors nation-building, the latter not yet forming a part of the body of occupation law. Harris Id, at 11.
52. The U.S. Army/Marine Counterinsurgency Field Manual 2007 (Id) may signal a change of course.
53. Id. at 107.
54. Another recent example for the challenge in applying the law of occupation is the public opinion campaign just launched by the NATO forces in Afghanistan releasing videos of insurgents while in breach of international humanitarian legal obligations. Paul Kring, Halt Detainee Transfers Now, Canada Urged, The Globe & Mail, Nov. 13, 2007, A15
55. Alan Freeman, Canada Violating Geneva Treaty, MPs Say, The Globe & Mail, Nov. 17, 2007, A20
56. Daniel Leblanc, Opposition Attacks Child-Detainee Transfers, The Globe & Mail, Nov. 29, 2007, A, A6.
57. YORAM DINSTEIN, MICHAEL N. SCHMITT, & CHARLES H.B. GARRAWAY, THE MANUAL ON THE LAW OF NON-INTERNATIONAL ARMED CONFLICT WITH COMMENTARY (2006)
58. Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].
59. Yoram Dinstein, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, (Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series 3, Fall 2004).
60. This, for instance, has been the argument of entitlement inherent in struggles for self-determination, which have come to be considered an inter-national type of conflict: “The claim of the lawful struggle for self-determination … coupled with the notion of illegal ‘foreign occupation’ could seem to import major qualifications, indeed, a revolution, in the law of occupation.” Benvenisti, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, at 187.
61. Dinstein, Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, at 4.
62. Dinstein, Schmitt, & Garraway, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, at 15.
63. Moreover, in reliance on the International Criminal Tribunal for Yugoslavia (ICTY), Prosecutor v. Tadic
64. Dinstein, Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, at 21. And furthermore
65. Dinstein, Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, at 34.
66. This relates also to Harris (Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding) concern with multilateral occupation and nation-building.
67. All reflected also in variations of the FFS. For international legal personality see Noemi GalOr, A Reassessment of the International Wrong: Self-Help Remedies for International Wrongs & Countermeasures in Humanitarian Law, (forthcoming) based on a lecture at the 35th Annual CCIL Conference Proceedings, 2006
68. Zooming In and Out: The Tree and the Forest in the Justice Approach to Terrorism, Adapting North American Security Relations to Terrorist Threats, J. Conflict Stud, (forthcoming 2008)
69. Claudia Kissling, The Evolution of CSOs' Legal Status in International Governance and Its Relevance for the Legitimacy of International Organizations, in Civil Society Participation and Global Governance: A Cure for the Democratic Deficit? ch. 2 (Jens Steffek et al. eds., 2007)
70. Janne E. Nijman, Paul Ricoeur and International Law: Beyond ‘The End of the Subject’. Towards a Reconceptualization of International Legal Personality, 20 Leiden J. Int'l L. 25–64 (2007). The evolving status of the individual, natural and legal, person, the NSA, and the international organization (IO) as subjects of international law is leaving no doubt that a reform of international law is practically under way. It is imperative that it includes also the law of occupation.
71. Elie Kedourie, Ethnicity, Majority, and Minority in the Middle East, in Ethnicity, Pluralism and the State in the Middle East (Milton J. Esman & Itamar Rabinovich eds., 1988).
72. (Id. at 31.)
73. Since 1990, when Syria sent forces to Lebanon to end the civil war there which broke out in 1975 and until the withdrawal of its armed forces from Lebanon in 2005, following the February 2005 assassination of Lebanese Prime Minister Hariri, see Syria ‘Starts Lebanon Fullback,’ BBC News, (Mar. 8, 2005), available at http://news.bbc.co.Uk/2/hi/middle_east/4331045.stm;
74. Biography: Mr Rafic Hariri, available at http://www.rhariri.com/default.aspx (The Official Website Former Prime Minister of Lebanon 1992–1998, 2000–2004).
75. Which will discuss in infra Part III.
76. M.E. Yapp, The Near East Since the First World War, 105, 265 (1991). Rabinovich observes that “[t]he idea of a Lebanese entity, rooted in a historic tradition and serving as bridge between East and West, though apparently secular, was perceived, certainly by its opponents, as Christian in orientation.
77. Indeed, the Lebanonism of the Kata'ib, despite much elaboration and sophistication, was ultimately Maronite-Christian.” Itamar Rabinovich, Arab Political Parties: Ideology and Ethnicity, in Esman & Rabinovich, The Near East Since the First World War, at 165.
78. Zeina Karam, Lebanon Has Record of Assassinations, Washingtonpost.com, Nov. 24, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/ll/24/AR2006112400269.html.
79. Convention Concernant les Lois et Coutumes de la Guerre sur Terre, 1907, 205 Consol T.S. 277, 295 (C. Parry ed., 1980)
80. cited in Dinstein, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, Consol T.S, at 2.
81. Suffice it here to mention that there are several international legal arrangements ranging on a continuum, and representing, albeit indecisively, situations wherein sovereign competences have been suspended, even relinquished. The protectorate and the vassal relationship tend to the latter engagements, which at face value, purport to be consensual (the protected state having requested the protection of the powerful state), see Yoram Dinstein, The Non-State International Law, The Non-State International Law 65–68 (1970) [in Hebrew]
82. Mugerwa, The Non-State International Law, at 252, or a non-belligerent occupation. Yoram Dinstein, The Beginning and the End of Belligerent Occupation
83. Oral Presentation at Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context: An International Conference, Jerusalem & Tel Aviv (June 5–7, 2007) (personal notes, available with author).
84. Article 22 of the Covenant of the League of Nations. For instance, Iraq and Jordan were considered to be at an advanced stage of independence for their internal and external relations proved to possess “a measure of international personality even before they attained full independence.” Mugerwa, The Non-State International Law, at 264. I will not elaborate on the three categories for lack of space. I will therefore forego the discussion of status of occupied territories that formed previously part of a sovereign state but were “torn” from it, only to be placed under mandate administration, and subsequently handed over to U.N. trusteeship management.
85. In the case of territories “lost” by Turkey and Germany, which were defeated in an armed conflict (WWI), the transfer of territorial powers was settled by means of a peace treaty—and assigned to several states, notably Britain, France, Belgium, and Japan. Abdullah El Erian, The Legal Organization of International Society, in S$$renesen, The Non-State International Law, at 61–62
86. Dinstein, The Beginning and the End of Belligerent Occupation, The Non-State International Law, at 70. Here the doctrine of the mandate system according to which the mandated territories were not yet fully (capable) of independence gets somewhat “fudged.” Specifically, already prior to the end of WWI, Britain and France divided the formerly Ottoman territories in what became known as the controversial Sykes-Pico Note (1916), a secret agreement partitioning the Ottoman Empire between these two powers (and which contradicted some assurance given by T.E. Lawrence “of Arabia” to the Arabs when mobilizing them to the revolt against the Turks). The Sykes-Picot Agreement, May 15 & 16, 1916, Jerusalem Media and Communication Centre (JMCC), available at http://www.jmcc.org/documents/sykespicot.htm (last visited May 27,2008).
87. Alan Palmer, Dictionary of Modern History 1789–1945 (1983).
88. For instance, the border between Syria and Lebanon was subsequently defined in yet another agreement between Britain and France in 1923, and ratified'by the League of Nations in May 1935. Haim Sarbaro, The Legitimacy Issue of the Lebanese Claim to the ‘Shebaa Farms’ in Relation to the International Border (2006).
89. El Erian, Relation to the International Border, at 63. The mandatory state's administration of the mandated territory was regulated by resolutions of the League Council, agreed upon with each Mandatory, the latter required to report annually to the League Council. A Permanent Mandates Commission consisting of independent experts examined the reports and advised the Council respectively. Inhabitants of the mandated territories were legally entitled to petition the League, and disputes regarding the mandates were justiciable before the Permanent Court of International Justice. Consequently, “the mandatory or trust power exercised a de facto sovereign power over the territory. But the exact nature of the de jure position has never been clear and has given rise to a number of conflicting theories.”
90. Mugerwa, Relation to the International Border, at 264.
91. These shortcomings suffered also from lack of clarity in the transition of the mandate system from the extinct League of Nations to the trusteeship system of the United Nations. Dinstein, The Beginning and the End of Belligerent Occupation, Relation to the International Border, at 74.
92. Michael Strauss, Is Transdisciplinary Dialogue Possible? Translating International Relations and International Law to Each Other, presented at International Political Science: New Theoretical & Regional Perspectives. IPSA International Conference. Concordia University, Montreal (Quebec), April 30-May 2, 2008
93. For a thorough review of the gradual historical evolution of the concept of sovereignty see Hanna Danwall, Guantanamo Bay, A Legal ‘Black Hole’? (2004) (unpublished Master Thesis, Faculty of Law, University of Lund).
94. I will elaborate on the doctrine of sovereignty in a future broader version of this Paper. Meanwhile, see also Noemi Gal-Or, Towards A Transdisciplinary Discourse on the Link of Trade and Investment, International Law, and Global Governance: Is a New Terminology Needed? (Submitted for publication, 2006) (on file with author).
95. Several other relevant publications (among a significantly more voluminous selection) addressing the dilemma of interpreting sovereignty, including the tension between the notion of sovereignty and its constituent competences are Peter Nyers, The Accidental Citizen: Acts of Sovereignty and (un)Making Citizenship, 35 Eco. & Soc. 22–41 (2006)
96. Heinhard Steiger, Remarks Concerning the Normative Structure of a Modern World Order in A Historical Perspective, in Legal Scholarship in International and Comparative Law 75–101 (Thomas Gross ed., 2003)
97. Véronique Voruz, Sovereignty, Power and Resistance, 15 Int'l J. Semiotics L. 231 (2002)
98. Jean-Jacques Morin, Droit et souveraineté à I'aube du XXI siècle, 25 Can. YB Int'l L. 47 (1987)
99. Benedict Kingsbury, Sovereignty and Inequality, 9 Eur. J. Int'l L. 599 (1998).
100. Most recently, Carsten Stahn reviewed this conceptual dilemma in Responsibility to Protect: Political Rhetoric or Emerging Legal Norm? 101 Am. J. Int'l L. 99 (2007).
101. Where the “modern occupant” (Benvenisti, Am. J. Int'l L, at 147) runs to the assistance of a presumably aid requesting state; or, where the occupant exercises effective control in the foreign state but eschews admitting to it (most likely for political reasons), consequently avoiding (or preventing) the application of the rules of occupation. Id.
102. Not only continuous media reports (most recently, Marc MacKinnon, In Lebanon, Something's Got to Give, The Globe and Mail, Nov. 23, 2007, at A14) and scholarly writings (a detailed and encompassing book developed from his doctoral thesis
103. see Amal Saad-Ghorayeb, Hisbu'llah: Politics and Religion (2002)) identified the Hezbollah among the important and crucial actors, at least in Southern Lebanon.
104. The U.N. as well has recently reached this conclusion in Report of the Secretary-General on the Implementation of S.C. Res. 1701, U.N. Doc. S/RES/730 (June 28, 2007).
105. Saad-Ghorayeb, S.C. Res.
106. With the exception of the recent events in the Nahr el-Bared camp north of Tripoli, and the apprehension surrounding the possibility of a renewed civil war. See Lebanon Army Takes Control of Camp after Battle, Reuters, Sept. 2, 2007, available at http://www.reuters.com/article/topNews/idUSL0261343920070902.
107. MacKinnon, Lebanon Army Takes Control of Camp after Battle, Reuters.
108. Mats Bredal, Reconciling the Irreconcilable?, in A More Secure World: Our Shared Responsibility, Behind The Headlines—Report of the Un Secretary-General's High-Level on Threats, Challenges and Change 7 (2005).
109. “This loss of capacity of the traditional individual state of the 21st century to perform its functions for the people is not only a loss of factual power, might, strength and means. It is a structural loss and therefore it concerns all states, not only the ‘failing state’…” Steiger, A More Secure World: Our Shared Responsibility, Behind The Headlines—Report of the Un Secretary-General's High-Level on Threats, Challenges and Change, at 98 (emphasis added).
110. Danwall, A More Secure World: Our Shared Responsibility, Behind The Headlines—Report of the Un Secretary-General's High-Level on Threats, Challenges and Change, at 23.
111. Id.
112. Id. at 24.
113. See Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928) cited in Id.
114. Id.
115. Id. at 25.
116. Danwall, Id, at 26.
117. Cited in id. at 27.
118. Rather than mutually complementing, e.g., in case of a treaty representing disposition of power over territory. For the various ways available to divide sovereign competences see Strauss, Guantanamo Bay and the Evolution of International Leases and Servitudes, Id, at 6.
119. Arguably, also general principles of international law. See G. James Apple, What are General Principles of International Law? 2 Int'l Judicial Monitor (July/Aug 2007), available at http://www.judicialmonitor.org/current/generalprinciples.html.
120. For this point generally, and “derogation” of sovereignty specifically see Ian Brownlie, Principle of Public International Law (6th ed. 2003)
121. cited in Danwall, Int'l Judicial Monitor.
122. See Saad-Ghorayeb, Int'l Judicial Monitor, at 10. More specifically
123. Id. at 13.
124. This influence was practically and physically reinforced with “Iran's dispatch of 1,500 Revolutionary Guards (Pasdarari) to the Biqa’ in the wake of Israel's 1982 invasion, which played a direct role in the genesis of Hizbu'llah.” Id. at 14. Saad-Ghorayeb chronicles the enhancement of the Hezbollah by Iran with the assistance of Syria throughout his work.
125. Stahn, Id, at 99.
126. Id.
127. A More Secure World, Id.
128. In Larger Freedom: Towards Development, Security and Human Rights for All, U.N. Doc. A/59/2005, ¶¶ 16–22 (2005), available at http://www.un.org/largerfreedom/contents.htm, (last visited Jan. 28, 2008).
129. G.A. Res. 60/1, ¶¶ 138–39, U.N. GAOR 60th Sess., U.N. Doc. A/RES/60/1 (Oct. 24, 2005) reprinted in Stahn, Larger Freedom: Towards Development, Security and Human Rights for All, at 100.
130. Whether a normative transformation is, in fact, under way, is yet to be determined. “These findings suggest that something is wrong here. Either the concept of responsibility to protect is actually not so new and innovative as portrayed, or the qualification is wrong.” Stahn, Larger Freedom: Towards Development, Security and Human Rights for All, at 102.
131. I choose to refer to R2P as a norm in the making that may either crystallize, or dissipate. The I.C.J, interpretation in Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 91 (Feb. 26) addresses state responsibility in matters pertaining to the realm of the R2P.
132. While the case marks the first time that a U.N. member state has been tried for genocide, the I.C.J, takes care to avoid and prevent misunderstandings that may arise in connection with the new concept of R2P.
133. “[W]hile sovereign Governments have the primary responsibility to protect their own citizens from such catastrophes, when they are unable or unwilling to do so …” A More Secure World, I.C.J, at 56 (emphasis added N.G.-O.).
134. Stahn, I.C.J, at 100–01.
135. Little if any resolution has been achieved with regard to state responsibility in a situation involving a threat to peace. International Law Association Report of the Seventy Second Conference, Toronto June 2006 (2006) (on file with author).
136. See Jean-Baptiste Jeangene Vilmer, Humanitarian Intervention and Disinterestedness, 19 Peace Rev. J. Soc. Just.
137. Like sovereignty, the doctrine of jurisdiction is an indeterminate doctrine. Danwall, Peace Rev. J. Soc. Just, at 28.
138. Id.
139. See Stahn's description of relevant propositions, Peace Rev. J. Soc. Just, at 118–120.
140. I will elaborate on this, and specifically Articles 77(c) and 78, in a later broader version of this Paper. Suffice it here to point to the analysis by Stahn, who distinguishes—within R2P three relevant types of responsibility (in declining order of “firmness”) entrusted to the U.N. and transpiring from the four constitutive documents: The responsibility to prevent, to react, and to rebuild. Id. at 108–09.
141. See, e.g., Sixteenth Delay for Lebanon Poll, AlJazeera.net, Mar. 10, 2008, available at http://english.aljazeera.net/NR/exeres/2E6F7902–5D35–47FB-9BA3-BA421DlDB50D.htm.
142. Country Profile: Somalia, BBC News, Mar. 2,2008, available at http://news.bbc.co.Uk/2/hi/africa/country_profiles/1072592.stm.
143. Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions, U.N. Doc. S/2001/1154 (2001) (the Bonn Agreement).
144. Michael Strauss, The Viability of Territorial Leases in Resolving International Sovereignty Disputes, address to the Annual Conference of the Association of Borderland Studies (Apr. 14, 2007) (on file with author) see especially 1.
145. Danwall, The Viability of Territorial Leases in Resolving International Sovereignty Disputes, address to the Annual Conference of the Association of Borderland Studies, at 40.
146. Some examples are Cuba's Guantanamo Bay lease to the United States; China's 99-year lease of Hong Kong's New Territories to Great Britain, which ended in 1997
147. lease arrangements in the Israeli-Jordanian Peace Treaty of 1994
148. For more details see Noemi Gal-Or & Michael Strauss, International Leases as a Legal Instrument of Conflict Resolution: The Shab'a Farms as a Proto-Type for the Resolution of Territorial Conflicts, Touro Int'l L. Rev. (forthcoming 2008).
149. Trusteeship Council, Sixty-Fourth Session, 1st Meeting, Oct. 20, 2004.
150. Which has been considered in the context of international environmental governance. See Eco-Logic: U.N. Reform—Restructuring for Global Governance, July/August 1997, available at http://www.iahf.com/world/un-refm.html. The Trusteeship Council formally suspended operations on November 1,1994, and is technically “non-existent.” Index to the Proceedings of the Trusteeship Council, United Nations Dag Hammerskjöld Library, UN-I-QUE (UN Info Quest), R00691.
151. Mary Ellen O'Connell, The Counter-Reformation of the Security Council, 1 J. Int'l L. & Relations 7 (2006), especially at 7.
152. Strauss, J. Int'l L, at 1.
153. Albeit at a status, and with competences, different from that of the state.
154. See Report Raises Red Flag for Governments Bound by Geneva Conventions, The Globe and Mail, Apr. 25, 2007, at A12.
155. See letter of July 18, 2006 by the late Major Hess-von Kruedener, Infantry Officer with the Princess Patricia's Canadian Light Infantry, of the Canadian Forces on U.N. Mission Truce and Supervision Organization—UNTSO. A Canadian Soldier's Report from South Lebanon, CTV.CA News, available at http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060718/mideast_lebanon_UN_060716/20060718/ (last visited Jan. 28, 2008).
156. The principal elements of the lease would be clearly defined when entering a lease agreement. For more detail see Michael Strauss, The Viability of Territorial Leases in Resolving International Sovereignty Dispute. A Comparative Study (unpublished Ph.D. dissertation, Centre d'Etudes Diplomatiques et Stratégiques, 2006), at 34. I will not elaborate here on the parallels between private and public international law due to lack of space.
157. Id. at 3.