Biersteker Thomas J., Spiro Peter J., Sriram Chandra Lekha, Raffo Veronica. International law and international relations

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that there has not been a successful terrorist attack on US soil since September

11 is by no means an indication that the United States has successfully secured

its borders or has successfully “taken the ﬁght to the terrorists,” wherever they

may be found. Multilateral responses, and responses that take seriously the non-

state nature of many contemporary threats, are clearly needed.

Compounded failings: unilateralism and nonstate actors

Because violent nonstate actors may be located almost anywhere, and responses

cannot simply be military ones that single out an individual state or a group of

states as “the enemy,” multilateral responses are needed. Yet the response of the

United States, driven by realism, has been unilateralism, which has only com-

pounded the problem. The policy of preemption has resulted in a sustained mili-

tarized response to the events of September 11, 2001, extending well beyond the

right to self-defense pursuant to Article 51 of the UN Charter.

However, after

four years of pursuing this course of action, it should now be patently clear that

a military response against nonstate actors with a global and ﬂeeting presence

has outlived its usefulness and was only viable as a short-term security measure.

This course of action – a sustained militarized response – was the basic rationale

for the invasion of Iraq and the continued prosecution of war there.

The diversion of attention away from Al-Qaida, a nonstate actor operating

partially from Afghanistan, in order to invade Iraq, a state accused of supporting

Al-Qaida and other terrorist groups, is a reﬂection of the prevailing inﬂuence of

the so-called realists over American foreign and security policies.

The mistakes

resulting from this course of action are now contributing signiﬁcantly to

America’s vulnerability to potential acts of terrorism. According to former US

senator Bob Graham, relating information provided by General Tommy

Franks,

“in the time that America was fully committed to the war on terror, and

not devoting resources, energy, or focus to Iraq, al-Qaeda was rendered harm-

less.”

Senator Graham concluded that, “At best, the war in Iraq distracted from

the war on terror. At worst, it set us back signiﬁcantly.”

I would argue that this

illustrates the failings of relying upon realist interpretations and prescriptions.

Conclusion: the promise of liberal responses

Analyses and possible policy prescriptions derived from liberal theories in inter-

national relations have merit, and are much more in sync with the realities

before and after September 11, 2001. In particular, liberal institutionalism’s

emphasis upon the importance of multilateral cooperation and institutions, and

international law, in constraining state behavior, may provide useful guidance.

The emphasis on international organizations to which member states have a

legal obligation, in particular the United Nations,

makes a lot of sense. Trans-

national problems require transnational solutions and modalities for cooperation

– legal and operational measures that, prior to September 11, were lacking in all

CURTIS A. WARD

134

states, including the United States. In this regard, the response of the UN Secur-

ity Council has been exceptional.

Success in defeating terrorism will only be possible if all countries demon-

strate the political will to commit to the measures necessary to achieve the

objective. It cannot be done without the full and unconditional support of the

United States. The multilateral system must be strengthened, not weakened.

The United Nations is a starting point; it is not necessarily the only solution

in the sphere of global mechanisms. However, the UN must remain at the center

of the process. There are already ideas about creating a new mechanism for

coordinated action against terrorism. Whether such a supranational organization

will operate within, or as a complement to, the United Nations will be the

subject of intense debate.

In a world in which national democracy is vigorously promoted, we must also

promote democracy at the multilateral level. Where there are weaknesses – and

there are many – corrective measures must be taken to strengthen the multilat-

eral organizations and institutions, including making them more representative,

more democratic, and more effective in carrying out their assigned tasks. And by

all means, the rule of law – international law – must be allowed to prevail.

Notes

1 J. L. Brierly, The Law of Nations, 6th edn, edited by Sir Humphrey Waldock (New

York: Oxford University Press, 1963), p. 78.

2 Action by the Council under Chapter VII of the UN Charter creates mandatory

obligations on states to implement measures taken pursuant to Articles 39, 41, and 42

to address any threat to peace and to maintain international peace and security.

3 ICTY, Resolution 827, UN Doc. S/RES/827 (May 25, 1993).

4 ICTR, Resolution 955, UN Doc. S/RES/955 (November 8, 1994).

5 UN Doc. S/RES/1267 (October 15, 1999). All Security Council resolutions are avail-

able online at www.un.org/documents/scres.htm.

6 UN Doc. S/RES/1269 (October 19, 1999).

7 Under Article 25: “The Members of the United Nations agree to accept and carry out

the decisions of the Security Council in accordance with the present Charter.” And

under Article 49: “The Members of the United Nations shall join in affording mutual

assistance in carrying out the measures decided upon by the Security Council.” Also,

Article 48(1) of the UN Charter states: “The action required to carry out the decisions

of the Security Council for the maintenance of international peace and security shall

be taken by all the Members of the United Nations or by some of them, as the Secur-

ity Council may determine.”

8 UN Security Council, Resolution 1333, UN Doc. S/RES/1333 (December 19, 2000);

Resolution 1363, UN Doc. S/RES/1363 (July 30, 2001); Resolution 1390, UN Doc.

S/RES/1390 (January 16, 2002); Resolution 1526, UN Doc. S/RES/1526 (January 30,

2004); Resolution 1617, UN Doc. S/RES/1617 (July 29, 2005).

9 Currently the Analytic Support and Sanctions Monitoring Team, established pursuant

to Resolution 1526, UN Doc. S/RES/1526 (January 20, 2004) and tasked with report-

ing at certain intervals on the implementation of the sanctions and making recom-

mendations to the 1267 Sanctions Committee (regarding Al-Qaida and the Taliban)

for improving the effectiveness of the measures.

COMBATING INTERNATIONAL TERRORISM

135

10 Curtis A. Ward, “Building Capacity to Combat International Terrorism: The Role of

the United Nations Security Council,” Journal of Conﬂict & Security Law vol. 8, no.

2 (October 2003), 289–305.

11 The 1st of the international antiterrorism conventions is the Convention on Offences

and Certain Other Acts Committed on Board Aircraft (1963), and the 12th is the

International Convention for the Suppression of the Financing of Terrorism (1999).

For a full listing of the international and regional antiterrorism conventions, see

Ward, “Building Capacity to Combat International Terrorism,” nn. 4, 6, pp. 290, 291.

Also, for full description of these conventions, see M. Cherif Bassiouni, International

Terrorism: Multilateral Conventions (1937–2001) (Ardsley, NY: Transnational,

2001).

12 The two countries were Botswana and the United Kingdom.

13 The 15 members of the Council at the time were: Bangladesh, China, Colombia,

France, Ireland, Jamaica, Mali, Mauritius, Norway, the Russian Federation, Singa-

pore, Tunisia, Ukraine, the United Kingdom, and the United States.

14 UN Security Council, Resolution, 1368, UN Doc. S/RES/1368 (September 12, 2001).

15 UN Charter, Art. 39.

16 United Nations, Letter from the Permanent Representative of the United States of

America to the President of the Security Council, UN Doc. S/2001/946 (October 7,

2001).

17 United Nations, Letter from the Charge d’Affaires of the United Kingdom to the

President of the Security Council, UN Doc. S/2001/947 (October 7, 2001).

18 UN Security Council, Resolution 1368, para. 5.

19 UN Security Council, UN Doc. S/RES/1373 (September 28, 2001).

20 For a discussion on the role of the CTC, see Ward, “Building Capacity to Combat

International Terrorism,” pp. 297–305; Eric Rosand, “Security Council Resolution

1373 and the Counter-Terrorism Committee: The Cornerstone of the United Nations

Contribution to the Fight Against Terrorism,” in Cyrille Fijnaut, Jan Wouters, and

Frederik Naert, eds, Legal Instruments in the Fight Against International Terrorism:

Transatlantic Dialogue (Leiden: Brill Academic, 2004), pp. 603–31.

21 The CTC is organized pursuant to paragraph 6 of Resolution 1373.

22 UN Doc. S/RES/1377 (November 12, 2001); subsequent resolutions and statements

of the President of the Security Council.

23 UN Security Council, Resolution 1373, UN Doc. S/RES/1373 (September 28, 2001),

para. 6.

24 UN Security Council, Resolution 1540, UN Doc. S/RES/1540 (April 18, 2004).

25 UN General Assembly, Resolution A/RES/59/290 (April 15, 2005), adopting the

International Convention for the Suppression of Acts of Nuclear Terrorism.

26 UN Security Council, Resolution 1390, UN Doc. S/RES/1390 (January 16, 2002);

Resolution 1455, UN Doc. S/RES/1455 (January 17, 2003); Resolution 1526, UN

Doc. S/RES/2004 (January 30, 2004); Resolution 1617, UN Doc. S/RES/1617 (July

29, 2005). Also, for a discussion of Security Council efforts to monitor implementa-

tion of sanctions against Al-Qaida and the Taliban, see Eric Rosand, “Current Devel-

opments: The Security Council’s Efforts to Monitor the Implementation of Al

Qaeda/Taliban Sanctions,” American Journal of International Law vol. 98, no. 4

(October 2004), pp. 745–63.

27 Anonymous, Imperial Hubris: Why the West Is Losing the War on Terror (Dulles,

VA: Brassey’s, 2004).

28 Pierre Schöri, “Painful Partnership: The United States, the European Union, and

Global Governance,” Global Governance vol. 11, no. 3 (July–September 2005),

p. 274.

29 Ibid.

CURTIS A. WARD

136

30 Raffo et al., “International Law and International Politics: Old Divides, New Devel-

opments,” Chapter 1 in this volume.

31 Article 24(1) of the UN Charter reads: “In order to ensure prompt and effective

action by the United Nations, its Members confer on the Security Council primary

responsibility for the maintenance of international peace and security, and agree that

in carrying out its duties under this responsibility the Security Council acts on their

behalf.”

32 UN Charter, Arts 25, 48(1), 49; see nn. 2, 7.

33 Adamson, “International Terrorism, Nonstate Actors, and the Logic of Transnational

Mobilization: A Perspective from International Relations,” Chapter 5 in this volume.

34 Jessica Stern, Terror in the Name of God (New York: HarperCollins, 2003), pp.

77–8, 253, 259, 277–8.

35 Article 51 of the UN Charter accords each member state the right to self-defense if

attacked. It provides in part: “Nothing in the present Charter shall impair the inherent

right of individual or collective self-defense if an armed attack occurs against a

Member State of the United Nations.” Preemptive measures are implied where justi-

ﬁed by the certain existence of an imminent threat of an attack.

36 Senator Bob Graham with Jeff Nussbaum, Intelligence Matters (New York: Random

House, 2004) pp. 125–7.

37 General Tommy Franks, at the time of the invasions of Afghanistan and Iraq, was the

ofﬁcer in charge of CENTCOM (US Central Command) headquarters at MacDill Air

Base in Tampa, Florida.

38 Graham with Nussbaum, Intelligence Matters, p. 218.

39 Ibid.

40 See Article 2(5) of the UN Charter, which reads in part: “All Members shall give the

United Nations every assistance in any action it takes in accordance with the present

Charter.”

COMBATING INTERNATIONAL TERRORISM

137

Part III

INTERNALLY DISPLACED

PEOPLE

THE GUIDING PRINCIPLES ON

INTERNAL DISPLACEMENT AND

THE DEVELOPMENT OF

INTERNATIONAL NORMS

Francis M. Deng

Introduction

How do international norms develop? Do they really affect the behavior of

states? Do different types or levels of norms affect behavior differently? Are

there optimal strategies for growing norms that make a difference? The two disci-

plines that have examined these questions the most closely – international rela-

tions theory and law – have provided a multitude of theories and little unanimity.

Yet answers to these questions are pressing human rights activists hoping to ﬁnd

ways to mold state behavior in favor of the victimized and downtrodden.

Just over ten years ago, as the newly appointed Special Representative of the

UN Secretary-General on internally displaced persons (IDPs), I and my dedic-

ated team of human rights experts and advocates faced the dilemma of how to

respond most effectively to the spiraling global crisis of internal displacement.

We recognized that persons forced to ﬂee their homes for such reasons as armed

conﬂict, situations of generalized violence, violations of human rights, or natural

or human-made disasters, but who remained within the borders of their own

countries – internally displaced persons, or IDPs as they became known – had

particular assistance and protection needs that were not being met either by

national authorities or by the international community. Our primary mechanism

for addressing the problem was an attempt to create or invigorate (depending

upon your point of view) a set of international norms in favor of the rights of

IDPs based on existing human rights, humanitarian, and analogous refugee law.

We deliberately chose to try to do so by means of a “soft law” instrument,

derived by experts rather than directly by states. This endeavor eventually led to

the formulation of the Guiding Principles on Internal Displacement in 1998.

While it seems highly unlikely that the process can be reversed, the long-term

success of the Guiding Principles as a normative instrument is not yet ensured.

141

Although now over ﬁve years old, the Guiding Principles are still a work in

progress in terms of acceptance by states and visible effect on the ground. Still,

we believe that we have seen measurable progress in both areas. At the same

time, the standing of the Guiding Principles, the process by which they were

developed, and their potential impact have not been without controversy. For

these reasons, the Guiding Principles offer an interesting case study for examin-

ing the strength of the various theories about norms. At the same time, we as

developers and promoters of what we hope will become norms, which, in turn,

we hope will improve the lives of those threatened or affected by internal dis-

placement, would still greatly beneﬁt from any strategic pointers that theory can

offer. In this chapter I examine both the theory behind, and our experience with,

the Guiding Principles with these twin goals in mind.

The chapter tries to illuminate the theoretical debate about norms, norm

building, and the impact of norms through the lens of the Guiding Principles. I

begin with a discussion of the general conceptual issues and theoretical debates

about norms, particularly those pertaining to rights. I next describe the process

by which the Guiding Principles were developed, the reasoning behind our

recourse to soft law, and the reception of these principles at the international,

regional, and national levels. I conclude with some reﬂections on the current and

potential impact of the Guiding Principles as a budding international normative

framework, some general conclusions about norms that can be drawn from the

development of these principles, and some observations about the accepted and

applied progress achieved.

Conceptual issues

Deﬁnition and provenance of norms

There is broad consensus across the ﬁelds of international relations and legal

studies that a “norm” represents a shared standard of behavior for a given set of

actors.

Along these lines, norms have variously been described as “standard[s]

of appropriate behavior,”

“collective expectations for the proper behavior of

given actors,”

“shared (thus social) understandings of standards of behavior,”

and “prescriptions for action in situations of choice carrying a sense of obliga-

tion, a sense that they ought to be followed.”

Some scholars also refer to the

other vernacular understanding of the term “norm” as “average,” “typical,” or

“common,”

asserting that norms refer not only to what ought to be done, but

also to “actual patterns of behavior” that generate expectations regarding future

behavior.

However, these two meanings are frequently at odds. As Ramesh

Thakur points out, corruption is ubiquitous in many countries, but revulsion

against corruption is unquestionably universal; thus, whereas corruption may be

the “norm” in the sense that it is common, it is certainly not the “norm” in the

sense of a socially approved standard of behavior.

Inconsistent behavior does

not necessarily negate the existence of a norm.

FRANCIS M. DENG

142

At the social level, norms spring from numerous sources, including religious,

ethical, and cultural beliefs. Thomas Risse and Kathryn Sikkink assert that

norms derive fundamentally from “principled ideas,” which are “beliefs about

right and wrong held by individuals.”

Finnemore and Sikkink elaborate that an

inherent moral element to all norms therefore exists, at least from the vantage

point of those who espouse them.

In this sense, norms are necessarily distinct

from “interests” or the economic concept of “rational choice.”

At the level of

international relations, however, the notion that norms are necessarily “moral” is

contested. Regime theorists, for instance, posit that norms are merely collective

rules meant to overcome difﬁculties in achieving cooperation in an anarchical

environment.

Norms may be embodied in laws, codes, guidelines, and other similar

mechanisms. Conversely, the absence of a formal and legally binding require-

ment does not necessarily imply the absence of a norm. Finnemore and Sikkink

point out the many explanations that the United States felt it needed to give for

its use of landmines in South Korea, notwithstanding the fact that it is not a

party to the Ottawa Landmine Treaty, indicating its recognition of an emerging

norm against the use of such weapons.

The function of norms

While the basic elements of norms are relatively uncontroversial, the question of

how they function is at the heart of the battleground between various schools of

thought within international relations and international legal theory.

Scholarly

opinion in this area ranges from the conviction that norms are nothing more than

window-dressing, to the assertion that they are as important as self-interest in

guiding state behavior. Moreover, the extent to which norms guide the behavior

of nonstate actors in the international arena has only recently come under the

scrutiny of these ﬁelds of inquiry.

Modern international relations theory was born out of disappointment, in

light of the devastation of the Holocaust and World War II, with the formerly

ascendant Wilsonian worldview, which foresaw progressive perfectability of the

social order through increasingly legalized relationships between states.

React-

ing against this idealism, so-called realists such as Hans Morgenthau and E. H.

Carr (as well as their more recent intellectual progeny, the so-called neorealists)

argued that interaction between states could only be explained through their

clash of interests, with power as the determining factor.

Accordingly, norms

had no independent force to shape behavior, ﬁguring in international discourse

only as a means to cloak expressions of raw interests by the most powerful

states.

Other schools of thought have challenged this view. Liberal theorists, for

example, such as Andrew Moravcsik and Anne-Marie Slaughter, see domestic

politics as the determining factor of the international behavior of states.

States

are controlled by individuals and private groups who act according to their own

THE GUIDING PRINCIPLES

143