California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - NOVEMBER 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - November 2001
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News / News Briefs
Two new judges named to bar court; Stovitz to preside
New protections for consumers
Court approves disclosure of some private disciplines
Board member Erica Yew named to Santa Clara bench
40 receive Foundation scholarships
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Trials Digest
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Opinion
From the President - Intentional UPL should be a felony
International law in a post-Sept. 11 world
Lawyers' response: First, do no harm
Delicate balance between liberty and security
Con artists single out immigrants
Letters to the Editor
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MCLE Self-Study
Restructuring a bankrupt global company
Self-Assessment Test
MCLE Calendar of Events
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You Need to Know
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Public Comment
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Discipline
Ethics Byte - New decision may subject lawyers to suits
Trust fund scam leads to summary disbarment
Attorney Discipline

OPINION

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International law in a post-Sept. 11 world
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By JOHN B. McNEECE III
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John B. McNeece IIIInternational law will continue to play a key role in ordering international affairs following the horrendous terrorist attacks of Sept. 11. Arguably, it will have an even greater role than before, because of the multi-national nature of the terrorist threat, and the need for a cooperative response among nations. President Bush's effort to build an international coalition prior to the armed response against the Taliban - charged with harboring Osama bin Laden - was a clear recognition of the need for international cooperation. That cooperation is being built on a framework of treaties and conventions already in place and the established role of the United Nations.

As California lawyers, we generally find ourselves advising business clients on international accords that govern private matters, i.e. cross-border business transactions, arbitration or litigation. But international agreements also create a framework of "public international law" and establish international organizations such as the United Nations that are intended to order state-to-state relations.

The United States has asserted the principle of self-defense to justify its use of force against the Taliban regime in Afghanistan, implicitly invoking Article 51 of the United Nations Charter, which recognizes "the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations." Others argue that since bin Laden is an individual, there is no armed conflict with any state and the concept of self-defense is inapplicable.

Instead, the attacks should be governed by international conventions reaching individuals, potentially including the 1970 Hague Convention for the Suppression of the Unlawful Seizure of Aircraft, and the 1999 U.N. International Convention for the Suppression of Terrorist Bombings. These conventions would permit proportionate countermeasures against states supporting the individual terrorist, not including armed force.

My view is that, in light of the scope and destructiveness of the terrorist attacks, and the evident interrelation between bin Laden and the Taliban, the U.S. is justified in asserting self-defense as a basis for the armed response against the Taliban. 

The U.S. considers that it was subject to an armed attack. And the North Atlantic Treaty Organization (NATO) parties, through their invocation of Article 5 of the Treaty, have concurred with the U.S. position. Article 5 provides that an "armed attack against one or more of them . . . shall be considered an attack against them all" and therefore each member, "in exercise of the right of individual or collective self-defense recognized by Article 51" of the U.N. charter, will assist the attacked state, including the use of armed force. The two U.N. Security Council resolutions in response to the Sept. 11 attacks, Resolution 1368 (Sept. 12 - condemnation of attacks) and Resolution 1373 (Sept. 28 - on international cooperation to combat terrorism) also recognized the right of self-defense.

But apart from my own views or the views of any other commentator, the key issue here is that both the U.S. and its critics are looking to international law as a basis for evaluating the use of armed force. International law provides a framework for justification, or denunciation, that carries substantial weight in world opinion. International law also provides a framework for cooperative international action. Such action will certainly be necessary to deal with the issues that reverberate from the terrorist attacks, including the critical refugee problems in Pakistan and Iran, the need to control financing of terrorism, the threat of chemical and biological attacks, and the nation-building that will be required if the Taliban is overthrown. For all of these reasons, international law will continue to play a critical ordering role among nations in the post-Sept. 11 world.

John B. McNeece III is chair of the executive committee of the State Bar's International Law Section. The views expressed are solely those of the author and do not reflect the views of the International Law Section or its executive committee. Mr. McNeece can be reached at jmcneece@luce.com.