A N I N T R O D U C T I O N T O I N T E R N A T I O N A L L A W F O R A F G H A N I S T A N An Introduction to the International Law for Afghanistan First Edition Published 2011 Afghanistan Legal Education Project (ALEP) at Stanford Law School http://alep.stanford.edu [email protected] Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 http://law.stanford.edu Protected by Creative Commons License (No Derivative Works) i ALEP – STANFORD LAW SCHOOL Authors Morgan Galland (Student Director, 2010-11) Evan Berquist Stephanie Gosnell Handler Nicholas Reed Michael Sulmeyer Editors Ingrid Price (Student Co-Director, 2012-13) Julian Simcock (Student Co-Director, 2012-13) Tres Thompson (Student Director, 2014-15) Mansi Kothari Catherine Baylin Nicholas Reed Faculty Director Erik Jensen Contributing Faculty Editor Allen Weiner Rule of Law Program Executive Director Megan Karsh Program Advisor Rolando Garcia Miron AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Editors Wadir Wadeer Safi Yama Keshawerz Chair of the Department of Law Taylor Strickling, 2012-13 Hadley Rose, 2013-14 Mehdi Hakimi, 2014- ii PREFACE & ACKNOWLEDGEMENTS To understate the obvious, Afghanistan is currently undergoing a critical transition period. The Afghan people now face the immense task of rebuilding a society and a country. This challenge, while daunting, is also an opportunity for the youth of Afghanistan to effect momentous and positive change as the future leaders of their country. To seize this opportunity, however, Afghanistan’s human resources must be revitalized and replenished urgently. The decades-long conflict in Afghanistan has devastated the country’s infrastructure and severely stunted the institutions that are central to educating and cultivating leaders. Consequently, the country faces a dire shortage of qualified lawyers. This shortage is felt ever more keenly during this time of transition, as the participation of skilled legal practitioners is crucial to rebuilding the Afghan republic. In response to this need, Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007 as a student-initiated program dedicated to helping Afghan universities train the next generation of Afghan lawyers. ALEP mandate and goals are to research, write, and publish high- quality, original legal textbooks, and to build out an equally high-quality law curriculum at the American University of Afghanistan. ALEP’s broader vision is to help train the next generation of leaders who will drive Afghanistan’s reconstruction and recovery. The ALEP team would like to acknowledge those individuals and institutions who havemade this project possible. ALEP’s faculty advisors are Erik Jensen (Co-Director of Stanford Law School’s Rule of Law Program) and Stanford Law School Dean Larry Kramer. ALEP has obtained generous support from public and private sources, including a three-year grant from INL at the U.S. Department of State. The ALEP team would also like to acknowledge the support of Deborah Zumwalt, General Counsel of Stanford University and member of American University of Afghanistan’s (AUAF) Board of Trustees. ALEP is also delighted to continue its partnership with AUAF and is particularly grateful for the support of AUAF’s President, Dr. Michael Smith and Dr. Bahar Jalali, Department Chair of Political Science, Humanities and Law. Specifically for the Introduction to International Law, ALEP would like to thank Stanford Law School colleague, Allen Weiner, Senior Lecturer in Law with specialized expertise in international law. Professor Weiner provided extensive and invaluable chapter-by-chapter critical comments on an earlier draft of the manuscript. ALEP would also like to thank Dr. Wadir Wadeer Safi of the Faculty of Law and Political Science at Kabul University and Executive Director of the Independent National Legal Training Centre, for his insightful comments on the practice of international law in Afghanistan. And ALEP would like to thank Mr. Yama Keshawerz, of Al-Biruni University and a Visiting Scholar at Stanford Law School, particularly for his help on Chapter Three of this volume, which considers Afghanistan’s domestic absorption of international law. Erik Jensen, Faculty Advisor, ALEP Palo Alto, California, June 2011 ii i TABLE OF CONTENTS Chapter 1: Introduction to International Law…………………………………………………………..1 Chapter 2: The Sources of International Law…………………………………………………………..11 Chapter 3: The Nexus Between International Law and Afghanistan’s Domestic Law……………....38 Chapter 4: International Human Rights Law…………………………………………………………..70 Chapter 5: The Peaceful Resolution of International Legal Disputes………………………………...90 Chapter 6: Use of Force……………….………………………………………………………………...116 Chapter 7: International Criminal Law………………………………………………….…………….170 Chapter 8: An Introduction to International Trade and Investment Law…………………………..201 Glossary……………………………………………………………………………………………..……227 iv CHAPTER 1: INTRODUCTION TO INTERNATIONAL LAW I. INTRODUCTION From cross-border trade, to membership in international organizations, to peace treaties, and to war, Afghanistan has benefited from and been regulated by international law. As an importer and exporter of goods, Afghanistan has signed commercial treaties and followed international norms that regulate the trade of goods across its borders and enable foreign investment. As a member of the General Assembly of the United Nations, Afghanistan has a voice and has voted on key measures that affect countries around the world. Through the creation of the state of Afghanistan, Afghanistan has benefited from peace-time treaties and norms that prohibit other countries from taking its land. And, Afghanistan has known more than its share of conflict and war. Yet even during these wars, international law has played an important role: it was used to validate the presence of international security forces on Afghan land, and it could lead to sanctions and trials for those who violated the Laws of War. As you can deduce from this list, international law is a vast field that touches many different aspects of our lives. This book will define and introduce international law by examining some of the most important fields of international law and then discussing their particular role and application in Afghanistan. To place this topic in a greater legal context, other books by the Afghanistan Legal Education Project have discussed matters of domestic law: our criminal and commercial law textbooks address legal rules and procedures meant to govern the behavior of individuals within Afghanistan. You can think of our Introduction to Law book as really an Introduction to Domestic Law. Now, for the first time in the series, we explore interactions and transactions that occur between Afghanistan and the outside world. It is here that you can begin to learn about international criminal law or international trade law. If you can think of the various substantive fields of law, chances are there are both domestic and international elements to almost all of them. Now that we have distinguished “international” law from much of the “domestic” law you have already studied, we can begin to discuss the core distinction within international law: that of public international law and of private international law. This book is primarily concerned with public international law, which addresses interactions and relations between nations. Nations like Afghanistan (or the United States for that matter) are the central actors of public international law. When nations sign agreements committing themselves to undertake certain responsibilities, such as an agreement to limit the proliferation of nuclear weapons, we can consider this a prime example of public international law. There is, however, another side to international law: private international law. Much of the work international lawyers engage in is on behalf of private clients that have needs, issues or claims with international implications. For example, an attorney may represent an Afghanistan corporation that sells goods to buyers in Pakistan, Tajikistan and Uzbekistan. What kinds of contracts will the client enter into with these buyers in different countries? A lawyer in a private international transaction rarely negotiates directly with the governments of Pakistan, Tajikistan, or Uzbekistan—merely with other private actors, like corporations, manufacturers, shops, and resellers. Indeed, one issue that recurs often in private international law is the determination of 1 which country’s laws apply in a dispute between parties of two different nations. If a company ships its product to Pakistan but the purchaser does not pay the entire agreed-to sum, the company will surely want to utilize any and all legal tools available to compel the Pakistani purchaser to make good on his commitment. But can the company sue under the laws of Afghanistan, Pakistan, or is the issue governed by an international treaty that all the countries have previously consented to, and the company, as a private actor, must follow? Private international law thus depends on the nature of each specific contract and the corresponding choice of law provisions. Each case will vary according to the relevant domestic law, and with the potential for some application of applicable international legal principles. In this book, however, we’ve chosen to focus on public international law because it is (a) a subject usually, but not always, studied before private international law, and (b) the scope of public and private international law is so broad that each deserves its own volume. Thus, returning to the primary focus of this book, in the realm of public international law, nation-states are most often the central actor. The state, most likely represented by a lawyer or group of lawyers working for some branch or ministry of the government, can file complaints, and defend itself against complaints, much like private actors in a domestic legal case. As we will discuss, claims can be heard in a large variety of fora, including international courts, domestic courts, in front of arbitration bodies and international institutions. Again, similar to a domestic legal case, these different international courts, or court-like institutions, have rules, procedures and formalities that the lawyers and states must follow. So, when we discuss international law, it is always helpful to remember that in many ways certain elements are very much similar to domestic law. That said there are many differences too. The most important difference is that the parties themselves are, more often than not, sovereign nations. Thus, before beginning the study of substantive international law, the topic for the remainder of this book, this chapter concludes with a discussion of some of the most important concepts that together provide a foundation for the analysis of international law. After further explaining the notion of sovereignty and its import in international law, we then discuss the origins of modern international law to place it within a historical context. Next, we outline some of the dominant analytical theories of international law. Finally we present a roadmap, a chapter-by-chapter summary, of the major fields of international law addressed throughout this book. A. Sovereignty and Voluntary Compliance That nations are sovereign is a crucial premise upon which much of international law and international relations are based. Sovereignty implies control of what occurs within a state’s borders. No other state can compel or force another state to comply with its wishes or preferences: states negotiate, trade, and engage in other interactions based on the premise that each pursues its own interests. That Afghanistan is a sovereign entity allows it to be treated equally alongside every other sovereign state in the world. If we equate sovereignty with nation- hood, and if we accept that the general barometer for nationhood is membership in the United Nations, then presently there are 192 sovereign nations in the world. 2 If we accept that all nations like Afghanistan are sovereign, then a nation’s participation in international relations, agreements, and efforts are voluntary. On its own accord, Afghanistan joined the United Nations on 19 November 1946. In so doing, it voluntarily assumed the legal obligation to abide by the Charter of the United Nations. One of the core principles of public international law, then, is that the agreements entered into by sovereign nations are voluntary. This proposition prompts us to ask: if the regime of public international law is voluntary, why would a nation voluntarily cede a portion of its sovereign power by agreeing to abide by the responsibilities and obligations of an international agreement? Within the answer to this question lies one of the most important notions in international law: by ceding sovereignty, by agreeing to international treaties or joining international organizations, countries demonstrate a preference that the benefits of these treaties and organizations outweigh the costs of non-participation. That is, countries willingly give away certain sovereign powers in exchange for some other perceived benefit, like peace, or regulated trading relations, or participation in international decision making bodies. Thus, although there are certainly costs involved in engaging in international cooperation, countries throughout time have demonstrated, via voluntary compliance with international law, that the benefits can be greater. B. Origins of International Law International law as we know it today is based on principles developed over the past 400 years in Europe.1 As the birth-place of the modern concept of the nation-state, it makes sense that modern international law too would be born in Europe. Along with the development of the theory of sovereignty, political scholars, like Machiavelli, Hobbes and Locke, developed theories to capture the laws that seemed to govern state-to-state interaction and maybe more importantly the interaction between the state and its citizens. However, even though many of the early notions that influenced the development of international law come from Europe, following the two world wars and decolonization, countries around the globe have played an increasingly important role in defining the rules, standards and application of modern international law. Post-war peace treaties led to the establishment of international organizations like the League of Nations, the United Nations, the International Monetary Fund (IMF), the World Bank and, more recently, the World Trade Organization (WTO) (see the appendix to this chapter for a more complete list of International Organizations with brief descriptions). And with these international organizations, laws and judicial institutions were created to define and enforce the rules; this list includes for example the International Court of Justice, the Permanent Court of Arbitration, and the dispute settlement body of the WTO. As one professor notes “[t]he vast increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organisations have established the essence of international law as it exists today.”2 None of this would have been possible if countries on all continents had not participated in the creation and elaboration of these rules. 1 A. Shearer, Starke’s International Law, 7-12 (11th ed. 1994). 2 Malcom N. Shaw, International Law, 30-31 (5th ed. 2003). 3 Furthermore, many of the most noteworthy contributions to international law in the past fifty years are a result of the rejection by the decolonized countries of otherwise Eurocentric components of international law. While certain bedrock notions like the nation-state and territorial boundaries remain, international law has come to emphasize a more universalist scope; after all, the UN General Assembly itself is composed of more formerly colonized countries than colonizers, bringing together a broad range of ideological, cultural, and religious traditions. More importantly, international law often codifies respect for the domestic laws of all countries and, at times, even allows for some local variance in its application (for example, countries often take reservations to treaties for those provisions that conflict with domestic law). Thus, international law, while based initially on ideals developed centuries ago in Europe, had to now reflects the great number of new societies in which it would be applied, and indeed, it has. C. Theories in International Law Before embarking on the study of modern international law, it is useful to understand some of the theories that scholars apply in their analysis. These theories will provide a framework within which you can think about international law, its application, and its usefulness: Natural Law / Fundamental Rights: This school of reasoning treats international law as a set of natural rights, as though a country were a person born into this world with certain rights already in place. Following this logic, there is a predetermined natural state within which states interact, respecting fundamental rights. The list of rights includes notions like the right to self- determination, independence, equality among other nations, respect among states and interaction with others. Positivism: Positivism at its core is a theory based on consent. According to this theory, international law encapsulates a set of rules that states agree upon. As a result, if a state does not consent to a rule, the rule is not law and the state is therefore not bound by the rule. Consent may take many forms: express consent is given via the signing of a treaty or entry into an international organization. A country can also give implied consent by following or acquiescing to a norm or custom. In the positivist view, states are equals and are only bound by those laws that they agree to be bound by Law and Economics: This theory analyzes law as a reflection of the decision-making between rational actors seeking optimal economic outcomes. States must decide between various outcomes that have both costs and benefits. A rational state weighs the costs and benefits of its decisions and optimizes its decision-making to maximize its wealth. Theorists that use law and economics to explain international law employ economic frameworks to explain why countries consent to and adhere to international law (these include for example game theory and the prisoners’ dilemma). Some obvious examples of where this has received substantial attention include environmental law (for example via cap and trade regulations on pollution) and trade law. 4 International Relations Theories: Formal scholars of international relations (IR) apply a variety of theories to explain the motivations of nation-states in the conduct of international politics and law. According to realists, states operate in an anarchic world, wherein there is no international police force to regulate their behavior. States must act in their own best interest to maximize peace and power. If compliance with international law helps to maximize a state’s interest, it will consent to and follow the law. However, if compliance would inhibit a state from pursuing their interest, they simply won’t follow it. By contrast, according to a liberal theory of international relations, states are merely a reflection of the sum total of the beliefs of the individuals within the states. Liberals believe that domestic law and politics are the most influential drivers of state action and thus understanding the complex relationship between domestic politics and domestic law helps explain how and when a state will use or comply with international law. Finally, constructivists look to practice to understand state action. Rejecting the notion that states are rational actors with concrete goals, a constructivist theory looks at the complex web of interaction between laws, norms and practice, to develop a map of what international law truly is. Regardless of which theory seems most “correct” or “best” to apply, there is at least agreement as to one core idea; international law exists in some form. It may be followed to varying degrees and applied in varying manners, enforcement mechanisms may vary, but states, individuals and institutions tend to follow certain pre-defined international rules and norms more often than not, demonstrating the existence and usefulness of the international legal system. II. ROADMAP While this book provides an introduction to international law as it applies to all countries, it attempts to focus on issues that will be relevant to Afghanistan and an Afghan student in particular. International law, while having global implications and applications, is also country specific in that countries interact differently with certain laws based on their internal make-up and needs. Some countries are exporters of manufactured goods while others export agriculture; some countries have large maritime borders and are hence particularly interested in the Law of the Sea; and others yet are engaged in space exploration and contribute to the developing field of Space Law. Afghanistan, as a state that has known its fair share of international conflict, and Afghan law students, are more likely interested in how countries resolve international conflicts without resorting to war or maybe the laws regulating the use of armed force when countries cannot avoid war. As a country applying to be a member of the WTO, Afghan students should also know about preferential trade agreements and the WTO’s dispute resolution body. To address these concerns and many more, this book is divided into 7 chapters, each covering a major area of substantive international law. Chapter 2 discusses the sources of international law. In this chapter, we talk about where international law comes from going into detail with respect to each of its main sources: treaties, customary law, general principles of law, subsidiary means, including judicial decisions and scholarly teachings, and the most recent source of international law, international organizations. This chapter is central to any understanding or application of international law for the sources are the pillars of international legal practice and learning what they are and what they stand for is akin to learning how to read a statute or contract in domestic law. Remember that because there is no global parliament or legislature, and because state sovereignty is a guiding principle in 5