Manifest disregard of international law: the Venezuela case

Over the last fourteen years, Venezuela has been dismissive of international law. Since the arrival to power of the controversial Hugo Chávez in 1999, there have been multiple episodes that have confronted the South American nation with its international obligations, revealing that in one way or another, this branch of law is of insignificant use if there is no real desire by States to comply with their obligations.

This has been done under the passive look of the international community, which has preferred to turn a blind eye to protect its economic interests, considering that Venezuela has one of the largest oil reserves in the world. The damage done to the reputation of the field has been considerable at least among Venezuelan citizens, who have often labeled it as useless.

Having this in mind, it seems that there is a worldwide trend of demanding and assuring compliance with international law only in the most serious situations. However, less severe cases of breach are gnawing away the legitimacy of a system of rules that are blatantly violated every day, affecting profoundly common citizens. A recurrent but stealthily violation of international law requires the implementation of solutions, which may perhaps sound utopian in our time, but will assure the effectiveness and utility of international law in the years to come.

In April 2002, Chávez ordered the Venezuelan military to violently dissolve a peaceful demonstration that was headed to the presidential palace. After a very confusing series of events, apparently the military removed him from power and two days later restored him as President since the interim government incurred in a coup d’état by illegally dissolving the National Assembly, the Supreme Court and declaring the country’s Constitution void.

A month later, Chávez himself met with the members of the Inter-American Commission on Human Rights (“IACHR”), receiving them at the presidential palace in a cordial meeting to discuss the human rights situation in Venezuela. However, when some time after such Commission started raising its voice of concern about the lack of respect of human rights, Chávez began attacking it himself, accusing it of not being impartial and responding only to US interests.

Ever since then, every time that the IACHR has issued a statement, report or even precautionary measures for the protection of Venezuelan citizens, the government has simply responded invoking the 2002 episode, thus using it as a mere excuse for not complying with the requests of the Commission. Therefore, by simply raising an alleged lack of impartiality, Venezuela started to recurrently defy measures that it was obligated to comply with as a State party to the American Convention on Human Rights (“ACHR”).

In 2008, the Constitutional Chamber of the Supreme Tribunal of Justice issued an opinion declaring unenforceable a decision of the Inter-American Court of Human Rights (“IACrHR”), which ordered the restitution of three judges who were removed without due process. Taking advantage of such opportunity, the highest court of the nation developed a “legal” thesis which precludes the execution of any foreign judgment if the courts consider that it violates the Venezuelan Constitution.

Obviously, the above mentioned thesis did not take into account the international obligation of the State of executing such judgments that comes from being party to the ACHR. Additionally, the Supreme Tribunal clearly ignored the rule contained in Article 27 of the Vienna Convention on the Law of Treaties (“VCLT”), which provides that a State may not invoke the provisions of its internal law as justification for its failure to comply with a treaty.

This situation shows that there is an outdated and erroneous understanding of the principle of sovereignty and the principle of non-intervention, enshrined in Article 2.1 of the UN Charter. The government and the judiciary have opted for an absolutist understanding of sovereignty at their convenience, despite of the fact that Venezuela has ratified several international treaties that in one way or another, allow international bodies to make legal determinations about situations which occur in its territory.

Nowadays, as a consequence of the lack of independence among the different branches of government, there is a clear policy of alleging that, in every single matter, it is the government who has the final say on the legality of its actions.

Concerning the principle of non-intervention, the government has even gone further. Recently, on May 2013, the government presided by Chávez successor, Nicolás Maduro, as well as the National Assembly, strongly condemned a meeting of Colombia’s President, Juan Manuel Santos with the Venezuela opposition leader, Henrique Capriles, qualifying it as a defying intervention of Colombia in Venezuela’s own affairs.

However, in April 2012, Paraguay had to break its diplomatic relations with Venezuela after informing that the then Minister of Foreign Affairs, Nicolás Maduro, had been directly inciting the Paraguayan military to resist the destitution of Fernando Lugo by the country’s legislative power.

This particular examples show that the use of international law concepts and the disparity in their understanding and application is extraordinary. The government vehemently condemns the concerns that have been raised by States or international organizations that show worry about particular situations in Venezuela, but at the same time, hypocritically intervenes in other States’ internal affairs.

The logical consequence of Venezuela’s disastrous record in breaching its international obligations came with the denunciation of the ACHR in 2012. The termination of the aforementioned treaty will result in a drastic reduction of the scope of protection of Venezuelan citizens. Starting September 06, 2013, citizens will have to agree with the last word of domestic courts regarding the responsibility of the State in relation to human rights violations, which is in itself extremely self-defeating considering the lack of judicial independence in Venezuela.

Also in 2012, and in its effort to implement its tailor made conception of sovereignty, the government announced that it had denounced the ICSID Convention. Coincidentally, the decision came a few years after becoming one of the most sued States in the investment disputes resolution centre. This as a consequence of implementing expropriations against foreign investments without following due process and providing fair compensation.

Although the above-referred denunciation already took place, there are still many cases pending, where Venezuela could be ordered to pay a staggering amount of more than forty billion dollars in compensation to private investors. The table is already served for Venezuela’s breach of its international obligation of enforcing and complying with such eventual decisions. The Supreme Tribunal of Justice has already announced that it will not implement decisions that violate the Constitution, attributing to itself an impressive degree of maneuverability to discard any decision that does not suit the government's interests. However, in this case, it is worth recalling that decisions of ICSID tribunals could also be executed in other States which are party to the ICSID Convention and where Venezuela still has relevant commercial assets.

Having viewed the cases described above, it is obvious that Venezuela’s actions have done serious damage to international law’s legitimacy over the last years. It is disappointing to see how this branch of law is not of much help even though it is repeatedly violated by a State, directly affecting its citizens. In this regard, it would be desirable to assess the possibility of allowing such citizens to sue third States for failing to demand the other State to comply with its international obligations. 

Bolivia against Chile and the obligation to negotiate under international law

Is there a general “obligation to negotiate” under international law? That is the main question that has been posed to the International Court of Justice ("ICJ") in the last case submitted to its docket, where Bolivia is requesting the Court to declare Chile’s obligation to negotiate in good faith an agreement granting Bolivia full sovereign access to the Pacific Ocean.

Bolivia’s case rests in three main and related submissions: (i) the existence of the obligation to negotiate; (ii) the non-compliance of such obligation by Chile; and finally, (iii) Chile’s duty to comply with the obligation to negotiate.

The background of the case goes back to 1879, when as part of an armed conflict with Chile, Bolivia lost 400 kilometers of coastline and 120,000 square kilometers of territory. Concerning this event, Chile argues that it cannot serve as a ground for the dispute, since both countries signed the “Treaty of Peace and Friendship” in 1904, where they duly established their territorial and maritime boundaries. Bolivia, for its part, alleges that in 1884, it signed a Truce Pact accepting under pressure the continuing military occupation of its territory by Chile.

It has been reported that Bolivia assessed the possibility of attacking the validity of the aforementioned treaties by invoking the rules established under Articles 51 and 52 of the Vienna Convention on the Law of Treaties (“VCLT”), which provide that an agreement obtained by coercion of a representative of a State or by the threat or use of force, results in the nullity of the accord. But finally, such argument was not invoked in the application, mainly for the lack of evidence to that effect.

Thus, Bolivia’s long time desire to obtain access to sea depends on the ICJ’s consideration of a supposed obligation to negotiate owed by Chile, arising specifically of conversations between both governments in 1948, several resolutions of the Organization of American States (“OAS”), documents exchanged between dictators Augusto Pinochet and Hugo Banzer and a common agenda initiated under the tenure of Michelle Bachelet, which was in force at least until the first months of the presidency of Sebastián Piñera in 2010.

In principle, let us remember that under a classic understanding of international law, any obligation must originate from one of its main sources, that is: a treaty, custom or a general principle of international law. Taking that into account, it seems that conversations, documents exchanged and a common agenda between governments, cannot be considered as part of the aforementioned sources and therefore, cannot give rise to an obligation to negotiate.

A swift assessment of the legal regime of the OAS resolutions leads to the same conclusion, since there is no provision in the OAS Charter which can serve to argue that such resolutions are indeed of obligatory nature, the prominent view nowadays in the region being that such resolutions are plain expressions which merely contain high political and diplomatic content.

Hence, the debate before the ICJ is to what extent, conversations held by senior officials from both countries, which were not subsequently materialized in a treaty or another type of international agreement, created an obligation to negotiate for the Chilean State. The funny thing is that those “conversations” that were held even as recently as during the first months of the Piñera presidency which started in 2010, can be indeed considered negotiations between both States. That leaves us with a question that’s quite a tongue twister: when States negotiate do they agree to continue negotiating?

In that sense, some international scholars have argued that the process of negotiation is part of the conflict between the States involved in a dispute. Consequently, until the negotiations result in a binding international agreement, the negotiating States assume no legal obligations. On the other hand, some consider that obligations can arise from a negotiation phase.

Opportunely, this will not be the first time that the ICJ elaborates on the obligation to negotiate. In the Fisheries Jurisdiction Case between the UK and North Ireland and Iceland; and in the North Sea Continental Shelf Cases between the Federal Republic of Germany and the Netherlands and Denmark, the principal judicial organ of the UN held that States are obligated to negotiate in certain situations.

In a few words, according to those judgments, States are obligated to negotiate in disputes where one State possesses legal rights which can only be defined in relation to the legal rights of the other. Therefore, States must enter into negotiations once it is determined that under conventional or customary international law, one of those States has rights with respect to a particular matter, like for example, maritime and territorial boundaries.

The problem in this case is that there has never been an international agreement to negotiate between Bolivia and Chile, but merely conversations between both governments and some OAS resolutions inviting both countries to undertake a negotiation process. 

According to Bolivia’s application before the ICJ, the most convincing proof of a will to negotiate is a note issued by the Chilean government dated December 19, 1975, where it declared that it “would be prepared to negotiate with Bolivia the cession of a strip of land.”

The vagueness and impossibility of concluding that an obligation arises from such declaration takes us to our initial question: is there a general obligation to negotiate for States parties to the UN Charter? After all, Article 2.3 of the Charter provides that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

However, our view in this regard is that the principle of peaceful dispute settlement contained in the UN Charter does not give rise to a general obligation to negotiate, since what such Article is really establishing is that States have to resolve their differences in a peaceful manner, but not necessarily through a negotiation process. Therefore, if a State is not willing to negotiate, the other State has to recourse to any other of the peaceful options available to it, except if they have established a clear obligation to negotiate under an international agreement or if that obligation arises from international custom.

Such conclusion seems in line with the ICJ’s decision in the Border and Transborder Armed Actions Case, where the Court held that even though the principle of good faith, referred under Article 2.2 of the Charter, “is one of the basic principles governing the creation and performance of legal obligation, it is not in itself a source of obligation where none would otherwise exist.” Furthermore, the Court, in the Fisheries Jurisdiction Case, cited the North Sea Continental Shelf Cases to conclude that the obligation to negotiate “merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes.”

Thus, it is very probable that in the case of Bolivia against Chile, the ICJ confirms that unless there is an express obligation to negotiate arising from a treaty or international custom, a State does not have an obligation to negotiate. In that sense, there is no doubt that at least in the understanding of the Court, the most fundamental legal principle in international law continues to be that States must give their consent in order to be constrained.

Whatever happens in the course of the litigation, Chile has fewer reasons to be worried than Bolivia since as concluded in the recent Pulp Mills on the River Uruguay Case, the ICJ considers that in any case, “an obligation to negotiate does not imply and obligation to reach an agreement”, so even assuming that Chile has an obligation to negotiate, Bolivia cannot pretend that the only feasible result of such negotiations is an agreement which grants it access to the Pacific Ocean.

Therefore, it is obvious that this conflict has more options to be resolved in a diplomatic or political level, where it will be important to assess the role of international organizations such as the OAS and the UN, but where the greater relevance will rest on a possible change of criterion in Chilean politics, where Michelle Bachelet, who advanced a common agenda with Bolivia during her first presidential period, might return if she manages to win in the presidential election set out for November 17, 2013.

A Brief Introduction to International Law for high-school students (especially those participating in Models United Nations)

Many students participating in a Model United Nations (“MUN”) might ask themselves if a basic notion of international law is necessary for the purposes of successfully conducting their participation in the academic simulation. The answer is a resounding YES. The object of this post is to briefly describe the main ways by which States are bound under international law and provide a brief comment about “the law of the United Nations (“UN”)”. 

As soon as you start conducting your research for the MUN, you will notice that the world needs international law, since no State acting alone can truly achieve its aims. International co-operation is necessary and international law is precisely the framework within which international co-operation takes place.

In other words, just like at school (or at home) you have a minimum set of basic rules to comply with for the purposes of keeping order and good relations with your teachers, parents and even your peers, States need a basic framework to carry out their relations. That framework is commonly referred to as international law. 

The UN, as one of the most important international organizations in the world, functions within the framework of international law. In that regard, it is worth noting that one of its aims is to develop friendly relations between nations, which unavoidably has to be done in accordance with international law. In a few words, this means that the importance of international law is capital in every single committee of a MUN. 

For example, any reform undertaken after the Arab Spring has to be done within the limits imposed by international law to States, duly respecting and upholding human rights, which are guaranteed in a different set of instruments which are part of international law, such as the Universal Declaration of Human Rights. The same applies while discussing other common topics like LGBT rights, human trafficking, refugee repatriation and online piracy. 

Consequently, while conducting your research, the first tool you need to have is the power of being able to indicate if a particular agreement made by a State, is formally binding, which means if it is legally obligatory. This is important since there are many agreements and even declarations issued nowadays which simply can be modified or abandoned at will by States without any consequence. 

In that sense, it is important that you know that the main ways by which States are bound under international law are the following: (i) international conventions (most commonly known as treaties); (ii) international custom; and (iii) the general principles of international law. 

(i) Treaties are the most obvious and easy to explain source of international law. You will find them referred in many ways: international agreements, conventions, exchange of notes, memorandums of understanding, covenants, charters, or any other suitable name. In a few words, it can be said that treaties are to States what contracts are to humans. For instance, if you want to buy/sell a car, you sign a contract in order to document your obligations (which in such case will be to pay the amount due if you are the buyer or to surrender the car and its keys if you are the seller). Likewise, whenever they agree on something important, States sign a treaty in order to leave clear which are their obligations. 

In principle, an according to international law, the only government officials who have the power of signing treaties are the President (or Prime Minister) and the Minister of Foreign Relations, although this depends on the law of each country. Also, the President or the Minister of Foreign Relations may grant a special authorization to some officials or ambassadors in other that they sign agreements before international organizations such as the UN, the Organization of American States or the African Union. 

Another point that is worth highlighting is that the mere signature of a treaty by a State does not create an obligation to comply with its provisions. What really binds a State to the provisions of a treaty is its ratification, which in many States has to be done in a joint process with the participation of the legislative and executive branches of government. 

Finally, is important to mention reservation of treaties. In principle, every State has the autonomous choice of accepting a treaty. However, States are permitted to modify a treaty in so far as it applies to themselves, accepting some but not all of its provisions. Such modification would be achieved by ratifying the treaty with a reservation, which is a statement by the State that excludes the binding character of certain provisions in their application to that State. Nevertheless, it is important to take into account that such reservations have a limit: they can be made as long as they are compatible with the object and purpose of the treaty. 

(ii) International custom is a source of international law a little harder to explain. The purpose of all rules of law is to introduce an element of predictability into the behavior of people (and in the case of international law, to the behavior of States). In that sense, it is expected that States act in conformity with established practices. 

For example, if you pray every day before you eat, it can be said that a custom has arisen and therefore your parents expect you to do that. Thus, the day you fail to pray, very probably your parents will complain about it, since you have that practice. International custom works the same way in relation to States. 

However, for a rule of international custom to exist, two elements must be met: (1) a general practice by a State; and (2) the acceptance of such practice as legally binding (obligatory). In any case, it must be said that those States whose interests are particularly affected by a custom should participate, meaning that a rule concerning, for example, the use of outer space, cannot arise without the participation of States that are active in the exploration of the space. 

(iii) General Principles of International Law are the most fundamental rules which apply to States and are established in the Declaration on Principles of International Law Concerning Friendly Relations an Co-Operation Among States in Accordance with the Charter of the United Nations (most commonly known as the Friendly Relations declaration), adopted by the UN General Assembly in 1970 as Resolution 2625. The resolution sets out the following seven basic principles, which you should ensure are not violated in the resolution that you will draft: 

1. The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any State. 

2. The principle that States shall settle their international disputes by peaceful means. 

3. The duty not to intervene in matters within the domestic jurisdiction of any State. 

4. The duty of States to co-operate with one another in accordance with the UN Charter. 

5. The principle of equal rights and self-determination of peoples. 

6. The principle of sovereign equality of States. 

7. The principle that States shall fulfill in good faith the obligations assumed by them in accordance with the Charter, so as to secure their more effective application within the international community. 

To conclude, it is important to make a brief reference to some legal aspects regarding the functioning of the UN. As you may already know, the two main organs which take decisions in the UN are the Security Council and the General Assembly. 

The Security Council can issue resolutions based on the powers vested by Chapters VI, VII and VIII of the UN Charter, which is the fundamental set of rules applying to the organization. However, only the resolutions issued under Chapter VII, which refer to the maintenance of international peace and security, are binding on all the Member States of the UN. That’s obviously if the resolution is not vetoed by one of the five permanent members of the Council: China, France, Great Britain, Russia and the United States. 

For its part, the General Assembly cannot issue binding resolutions. However, considering that, unlike the Security Council, it counts with the representation of all the member States of the UN, its resolutions, when adopted without a vote, can signal the state practice that is required to create an international custom.

The Case for the Compulsory Jurisdiction of the ICJ

Why do States comply with international law? In contrast with national law, in international law there is no State more sovereign than the other, so there is not a recognized superior governmental authority. Furthermore, there is no international legislature, which is why many have said that international law lacks the legitimacy which endorsement by a democratic legislature would give.

 

As the year 2010 comes to its last months, it is appropriate to scrutinize where is the international community in regards to the fulfillment of its obligations under international law, and more specifically, what can be done to preserve the rule of law across the globe. 

There is no doubt that since international law involves a different and sometimes unrecognizable body of law, many States still do not give too much weight to the performance of its international obligations. However, for their development, States must begin to realize that international law rests on similar principles and pursues similar ends than national law; which is no other than the observance of the rule of law.

 

Accordingly, in their Millennium Declaration the member states of the United Nations resolved to “strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties”. 

Therefore, it is not precisely a new idea that a true development of the rule of law in the international sphere would entail a greater acceptance of the compulsory jurisdiction of the International Court of Justice (ICJ). Nowadays, while 65 of the 192 member states of the United Nations have chosen to accept the compulsory jurisdiction of the ICJ, a majority do not, and it is a lamentable fact that, of the five permanent members of the Security Council, only one, the United Kingdom, does so, Russia and China never having done so and France and the United States having withdrawn earlier acceptances. 

The justification of the dissimilar regime in relation to different Member States of the United Nations is simple. The ICJ has jurisdiction in contentious cases between states, on the basis of the consent of the parties. This principle, reflected in Article 36 of the Statute of the Court, rests on international practice in the settlement of disputes and is a corollary of the sovereign equality of states. For its part, the compulsory jurisdiction of the ICJ is enshrined in Article 36(2) of the Statute, which establishes: 

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: 

a. - the interpretation of a treaty; 

b. - any question of international law; 

c. – the existence of any fact which, if established, would constitute a breach of an international obligation; 

d. - the nature or extent of the reparation to be made for the breach of an international obligation. 

The recognition of the compulsory jurisdiction of the ICJ by all the member states of the United Nations is undoubtedly, a move which must be taken if the rule of law is to become truly successful in international law. However, former President of the ICJ, Dame Rosalyn Higgins has said that the suggestion that the rule of law requires, in this day and age, a routine and obligatory recourse to the Court in matters connected to the UN Charter and related issues is still a step too far. Nevertheless, she also recognized that the absence of a compulsory resort to the Court falls short of a recognizable rule of law model. 

International law is not imposed on states by external legislature, and a powerful reason of why states do sometimes comply with international law is that they make rules to suit themselves. However, the most potent of all reasons for compliance by states with international law is the sheer necessity of doing so. The point was well made by Douglas Hurd in 1997: 

Nation states are incompetent. Not one of them, not even the United States as the single remaining super-power, can adequately provide for the needs that its citizens now articulate. The extent of that incompetence has become sharply clearer during this century. The inadequacy of national governments to provide security, prosperity or a decent environment has brought into being a huge array of international rules, conferences and institutions; the only answer to the puzzle of the immortal but incompetent nation state is effective cooperation between those states for all the purposes that lie beyond the reach of any one of them. 

Therefore, having in mind that the main purpose of the United Nations is to maintain international peace and security, there is no better way to elucidate the disagreements between the nations than to resort to an impartial institution like the International Court of Justice. The principle of justice must be uphold by the international community, and the compulsory jurisdiction of the Court will lead to the peaceful adjustment and settlement of international disputes or situations which might lead to a breach of peace. There is no wisdom other than to seek injustice and disparity, if the different Member States cannot accept than an impartial body will only apply the law that they previously accepted to comply with. The time has come for States to understand that without true will of complying with their obligations and seeking justice, there is no possible future.

Kosovo, the International Court of Justice and Judicial Restraint

Although the International Court of Justice, delivering an advisory opinion last week, simply said that international law does not prohibit the people of Kosovo (or their representatives) from declaring independence, many minorities in the international community will find the opinion of the main judicial body of the United Nations as an ally in their way to achieve independence. No doubt, the International Court of Justice has just given a major boost to all of those aspiring for independence.

First, let us remember that the International Court of Justice has an advisory jurisdiction, pursuant to Article 65 of its Statute, to answer any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations. Thus, some months ago the General Assembly asked the ICJ the following question: 

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law”? 

Legally speaking, this method of question referral is worth studying, since in a political body like the General Assembly it is very important how you draft the question in order to get the sufficient votes for the referral to the International Court of Justice, but it is precisely the narrow scope of a determined question that affects the final result of an advisory opinion. 

The genuine issue with Kosovo is not really whether the unilateral declaration of independence is in accordance with international law, but whether there is an obligation in international law for third States to recognize Kosovo, considering the circumstances of its independence. However, the International Court of Justice, in what seems a landmark application of the interpretation theory of judicial restraint, said that although it recalls that in previous cases it had departed from the language of the question put to it where the question was not adequately formulated, in the present case, the question posed by the General Assembly is clearly formulated. Specifically, it said: 

The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of the declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity of legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. The Court notes that, in past requests for advisory opinions, the General Assembly and the Security Council, when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in such a way that this aspect is expressly stated. 

In regards to the core issue of the opinion, that is, the legality in international law of Kosovo’s declaration of independence, the Court was very straightforward, establishing that in the second half of the twentieth century there is no evidence of the emergence in international law of a new rule prohibiting the making of a declaration of independence. In other words, there is no conclusive international custom at the present time that would make illegal that a determined minority declares its independence, being this one of the most dangerous affirmations the Court made.

More importantly, the ICJ stated that the principle of territorial integrity does not apply in cases of declaration of independence, because, in the words of the Court, “it is confined to the sphere of relations between States”, hinting that a declaration of independence is respectful of international law at least if it does not involves the unlawful use of force or other serious violations of international law, like jus cogens norms. 

It is worth noticing that the most controversial issue during the development of the advisory proceedings, was not answered by the Court, since the majority of the judges thought that the question of the right to remedial secession under international law was highly contentious among the States that participated in the proceedings and was not relevant in order to answer the question the General Assembly of the United Nations submitted to the Court.

In my humble opinion, the Court has done here a very dangerous thing, since while not answering completely the legal issues surrounding the Kosovo case, there is still no clear law regarding the complex relation between the principle of self-determination, secession and recognition of new States, and now probably some separatist groups are just going to think that they can easily declare independence from their States, causing a severe political crisis in several countries. However, it is also true that the Court cannot surpass the political will of the Member States of the United Nations, determining what the international law is, leaving us that with the conclusion that the Court should not have accepted to give the opinion in the first place. 

Anyhow, it is important to notice the judicial restraint of this International Court of Justice, compared with the one that decided the Wall Advisory Opinion. After all, it does not correspond to the judiciary, especially in a setting like the United Nations, to say what the law is, but to apply the law. In any case, it is important to keep in mind that declarations of independence are mainly domestic affairs and the United Nations does not reprove them except there is a violation of international law involved in the making of the declaration. Therefore, States better hurry in prohibiting minorities to declare independence in their domestic legal systems.

Colombia's Presidential Election & The Use of Force against Terrorists

Over the next months, Colombia is set to decide its next President. Apparently, the fight for a spot in the Casa de Nariño, official home and principal workplace of the President, comes down to two main candidates: Juan Manuel Santos, former Minister of National Defense of President Álvaro Uribe, well-known for executing a military operation leading to the death of FARC Secretariat member Raúl Reyes in an air strike against a guerrilla camp located within Ecuador’s borders. Additionally, Mr. Santos acquired global recognition after leading the non-violent rescue of former presidential candidate Ingrid Betancourt, along with 14 other hostages.

However, on his way to defeat him is Antanas Mockus, a former mayor of Bogotá and the candidate of a newly formed Green Party, who surprisingly has been leading the polls over the last few weeks. Mockus lead is shocking because Mr. Santos is President Alvaro Uribe’s candidate, who is extremely admired for his succeeding security build-up and offensive against the FARC guerrillas. Still, many Colombians loathe the scenario of scandal that has surrounded his government, and see in Mr. Mockus a new alternative for combating violence under democratic legality. To be more precise, Colombians are tired of “the end justifies the means” philosophy that has led to serious human rights abuses from Colombia’s government, a policy that Mr. Santos is committed to prolong. 

Mr. Mockus is a descendant of Lithuanian immigrants and has a reputation for integrity and an inflexible repudiation for corruption. He was elected twice as mayor of Bogotá as an independent candidate, always rejecting to negotiate with Colombia’s main political parties. Supporters from across the country say they want to witness decency in the presidency, and that above all Mr. Mockus is a good person. By founding the Green Party with two other successful mayors of Colombia’s capital, Mr. Mockus symbolizes an Obama-styled transformation in local government that has recently changed Colombia’s bigger cities. 

Although being on the centre may represent a plus to conquer the vote of those who are neither with nor against President Uribe, Mr. Mockus greatest Achilles' heel is that he does not have ties with political machinery to exchange cash in return for votes. Moreover, were he to win, governing would be tough since his party recently won just 5 seats in the 102-seat Senate and only four in the lower house. Basically, Mr. Mockus represents an uprising nationwide mood asking for change, and despite of his rise, it is interesting to notice that 40% of his surveyed supporters have said that they believed Mr. Santos will be Colombia’s next President. 

Juan Manuel Santos, for his part, is the candidate of the Social Party of National Unity, Colombia’s second most important political party. He studied in the University of Kansas, obtaining a degree in Economics and Business Administration. Later, he acquired master’s degrees in Economics, Economic Development and Public Administration in the London School of Economics, in business and journalism in Harvard University, and in law and diplomacy from the Fletcher School of Law and Diplomacy. 

Being raised in one of the most traditional families in Colombia, Mr. Santos quickly became a well-known politician in his country, representing Colombia in the International Coffee Organization in London. As well, he has wielded important positions such as Sub-Director of his family owned newspaper El Tiempo. He started in top public office positions as Minister of Foreign Trade during the administration of President César Gaviria in 1991, following with the Ministry of Finance and Public Credit with Andrés Pastrana’s administration, to finally hold the position of Minister of National Defense with Álvaro Uribe from 2006 to 2009, resigning with the sole purpose of becoming Colombia’s next President. 

Mr. Santos has emphasized the importance of persisting with President Uribe’s security plan, and has recurrently denounced the threat represented by Venezuela’s President Hugo Chávez. His decisive attack on the FARC has led to public support for the legality of intervening in foreign countries on the ground of self-defense, causing major conflicts with the governments of Venezuela and Ecuador. 

Interestingly, Mr. Santos’s biggest weaknesses have being his desperate attempt to portrait himself as a reincarnation of President Uribe. Before starting the campaign he even said he would run only once Uribe gave him the green light, showing that his eventual presidency would be a sequel of Álvaro Uribe´s. In addition, Santos has forgot that Uribe became president because he was the expression of an alternative to politics as usual. His repeated words of how deep the roots of the experience he has in politics, has reminded voters that Mr. Santos is part of the disastrous traditional political scenario. The truth is that Colombians may have grown tire of the scandals and the corruption increasingly surrounding Mr. Santos Ministry of Defense administration, specifically the extra-judicial killings of more than 1000 young men by the military and the illegal interception and activities of the Colombia’s secret service agency.

From what has been written above, it is obvious that the result of Colombia’s presidential election will have very important consequences in regard to the country’s international law policy. With Mr. Santos, Colombia will continue to upheld that the use of force against terrorists is permitted under international law, while Mockus is expected to take a much more legalistic approach, considering very carefully any step that could entail the violation of territorial sovereignty of another State. 

Whether States have the right to use force against terrorists located in another State is a matter of controversy under international law. The United Nations Charter does not provide an unambiguous solution, but international practice seems to have re-adjusted in order to tolerate forceful actions against terrorism under more light circumstances. This practice is justified under the right of self-defense, which is understood as an exception to the prohibition to use force enshrined in the UN Charter. 

It is very important to understand that the right of self-defense cannot require a State to await an actual attack before lifting a finger to protect itself – though it positively requires the most serious efforts to avoid the use of force. Therefore, it has been understood by States such as the United States of America, that under the principle of self-defense, it is not possible to rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. This doctrine of pre-emption has been represented as a policy of dealing with threats before they become threats. The concern is not simply that it might be used as an excuse for specific uses of force that are shown in retrospect not to have been justified, but rather that the assertion of the right to take pre-emptive action is in effect a statement of a permanent right to intervene with force in third States by the handful of States that have the technology and equipment to enable them to do so. Nevertheless, some States like for example, the United Kingdom, have categorically stated that international law permits the use of force in self-defense against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote. 

The line between deterrence and prevention is certainly difficult to draw, but the important point is that international law gives no warrant to States to use violence to terrify those whom it fears may be disposed to attack it in order to give them a taste of what they might expect if an attack is executed. 

The requirement of proportionality is fundamental while exercising the right of self-defense. But it is not easy to pin down what the requirement of proportionality entails. The first approach establishes that the degree of force should be calibrated against the scale of violence that would occur if the threat against which the State is defending itself were to be realized. The second approach demands that the degree of force should be measured against the force that is necessary to prevent the attack. These two approaches might produce very different results. One State may threaten the use of force against another but be unable to bring sufficient military power to bear to cause more than minor damage, while another State may threaten massive destruction from an attack, but be easily deterred by a symbolic display of force. 

There is no doubt that the right of self-defense is a legal exception to the prohibition to use force, and that the international community is moving towards a broader understanding of such exception. For Juan Manuel Santos it will be important to remember that it is not as easy as to invoke the idea that the end justifies the means. On the contrary, if he were to be the President of Colombia, he must know that the right of self-defense applies only when the terrorist attack is imminent, which means that the attack must be likely to occur in any moment. Additionally, Colombia must seek to be proportional while exercising its right to self-defense. Mr. Mockus, for its part, must be reminded that a State cannot claim the protection of sovereignty when it knowingly offers a piece of its territory for terrorist activity against other nations. The legal arguments are far from clear for now, so we can only hope that States make use of the exception in cases where there are true legitimate causes for it.