Introduction The International community has become a vast assortment of treaties and agreements and institutions after WWII. The topic of this paper is on the new international customs developed in response to terrorism focusing on the actions from the US after September 11th 2001. Part One: What is Customary Law? The international community was built on centuries of traditions, actions and lessons learned. These actions of history were recorded and eventually created into law. This beginning of human action is beginning of custom and customary law that have been codified through acceptance into national and state behavior.
Customary law has been usually agreed to as a “general practice, accepted by law. ” Treaties that have dated back to around 3000 B. C. E. , created customs still used today. One, a realist approach states that States are sovereign and must consent to treaties, and even with treaties can act independently from it. And the custom of pacta sunt servanda, states that countries that have agreed to the treaties are bound to carry out, in good faith the responsibilities in which they have agreed to (Scott 2010, 5).
People create customs in history; therefore they are a form of positivism, in which people make the law. Since customs are made by human actions, they are laws made by people that require a longer time to codify (Scott 2010, 78). Every nation and group of people have created a set of norms which their governments have enforced or superseded by advanced mechanisms such as legislatures. The mechanism for the international system is a form of the custom itself, built into 3 levels. The first is the underlying philosophy, idea, or concept, created by natural law, or more basic, norms developed over time.
The second level; are the rules and principles, which are related to the operation of the institutions created. And the third level; are the rules and concepts that operate the whole system of world politics. Part Two: The United States Response to acts of Aggression The attacks on the US on September 11th 2001 were planned and recognized world round as an illegal and un-justifiable act of murder. The incident put the United States in a position of power, for they could retaliate with justification.
The United States retaliation was not immediate unlike their response to other attacks. But what was immediate was the worlds voice to the action. Security Council resolution 1368 was the full support and unequivocal international tie that showed the worlds sympathy and support for the US against terrorism. The resolution came out the day after the attack and asked countries to “redouble” their efforts to combat terrorism and expressed their “readiness” to take the necessary steps to respond to the attacks.
In resolution 1368 and 1373, the UN backs the inherent right to self-defense, which was the argument used by the Bush administration to justify the invasion of Afghanistan and military actions in the Middle East that involved terrorist activities. (Greenwood 2002, 310) These events along with non-customary actions from non-state actors lead the world into a panic on the appropriate action. The events of 9/11 were an overlap of international conflict, non-international armed conflict, and law enforcement.
The area that the US tried to state was in action of self-defense had not yet occurred and the US led the world into a world peacekeeping that could be interpreted as retaliatory a form of new customary action (Watkin 2004, 3). Part Three: Changes in International Norms The use of force before the attacks of September 11th was based on norms and laws from many Conventions and UN treaties. The norm and international law, in the UN charter in Article 1, 2, 39, and 40, state how preventative actions should go through the UN and be approved if there is a breach of the peace or a possible one.
Which comes to the assumption that self-defense, a right to all states and in Article 51, is only allowed when there is an imminent threat. On the 7th of October 2001, letters between the US ambassador to the UN and the President of the Security Council stated that the US had a right to self-defense is response to the attacks of 9/11. The letter states, “In response to these attacks (9/11), and in accordance with the inherent right of individual and collective self-defense, United States armed forces have initiated actions designed to prevent and deter attacks on the United States. The US admitted to the UN that their intent was preventative, and a retaliation measure (Greenwood 2002, 310). But a counter argument to the contradiction to the self-defense argument is “intervention by invitation. ” The US could have acted in Afghanistan to collectively fight the Al-Qaeda only is Afghanistan agreed to the intervention. But the invitation would have had to come from the Northern Alliance, which is argued to be a failed state with the Taliban fighting for control. The invitation would have been from an arguably, failed state and not very valid (Byers 2002, 403).
The Custom of retaliation after an attack is one that the International community does not want to see occur. In the UN charter it states how if problems arise that it best be solved through the UN and not retaliation methods. But the actions by the US, justifiable or not were effective. Jus ad bellum is Latin for just war, and almost every war the US goes into must be a just war. With foreign policy the US must have a reasons and rationales to project itself around the globe, “As with other ongoing disputes, we generally are fortunate when justifications and motives vie with each other, and no single one predominates.
When they join ‘good’ ones, such as World War II, and questionable ones, such as the American-led invasion and occupation of Iraq. ” The wars that the US enters is one that have to be justified and is thought as of a good action. This can be seen as the effectiveness of the regime for the verification of going to war with the US will be justified (Fineman 2009, 201) That the regime is transparent in the fact that 9/11 was the spark that caused the retaliation. And there were written statements from world leaders showing their sympathy and support.
The operations that included operation Enduring Freedom had wide support, so the operations and US actions had compliance right after 9/11 but faded as time passed. But this regime is only effective as the US was able to act. If this attack had occurred in a middle country or a non-hegemonic power, their humanitarian intervention would not be as effective in action. So it is possible that the effectiveness of the custom that the US created to retaliate was only as effective as the US’s use of force. The right to defense is a Custom that is laid out in international law.
The United States has acted on this principle against terrorism before 9/11 and the world’s opinion of the subject was widely negative. In 1986 the US retaliated from the death of two servicemen by bombing targets in Libya. The Security Council even drafted a resolution that condemned the actions. But the US and the UK vetoed it. In 1998 in retaliation to bombing of US embassies, the US attacked targets that were thought to be working for Osama Bin Laden. Many called the attacks ‘unilateral and unwarranted. All these pre-9/11 attacks that were justified as self-defense and were called out by the international community. But after 9/11 a extensive coalition was created under operation Enduring Freedom. The international community not only accepted these retaliation attacks but joined in the coalition and expressed the need for action. “It could be said that customary international law had evolved such that the right of self-defense now included military responses against states that actively support or willingly harbor terrorist groups that have already attacked the responding state. (Scott 2010, 8). To understand why the change in international relations and law after 9/11 is one based on realist theories and also based on the hegemonic state actions. Outside viewpoints describe America as a “dissident power” that has a readiness to “assert democratic values even alone against the rest of the world. ” The idea that America has not changed since the cold was persists, with authors saying that America has kept its democratic mission in the post-cold war world (Judt, Lacorne, 2005. 01). These outside scholars looking into the American foreign policy see the relentless hegemonic actions that still propel America as the largest humanitarian actor. The right to self-defense is one that was regarded before as responding to an imminent threat and the actions in response should be preemptive. Now after the US led actions before and after 9/11, it is possible that the custom might have changed to allow preventative attacks on states that pose a threat to the peace.
