By Eric Vandenbroeck and co-workers

[T]he disarmament of Iraq is a divisive question revealing that there are two schools. There are those – who are many – who advocate a peaceful settlement and a rejection of the use of arms. And there are those who advocate a military solution and who could be reinforced by the conduct of the Iraqi authorities, who, despite the seriousness of the situation, are so little inclined towards active, complete, sincere, and unambiguous cooperation with the inspection missions.”1

This statement by the Minister of State from Cameroon before the United Nations Security Council in February 2003 sums up the division over the proper interpretation of the international legal principles concerning the use of anticipatory intervention in self defence. On one side you found France, Germany, Russia, and much of Western Europe ,Latin America and the Middle East. On the other, the United States, United Kingdom, Australia, and a number of the countries of Eastern Europe. Their disagreement in the Iraq case focused on whether international law requires more time for weapons inspections and whether action was valid without further UN Security Council action.

But the division underlying this incident-specific debate was a fundamental difference over how to interpret the existing rules of international law relevant in this case.

 

The legal rule

(A) What is the international law regarding use of anticipatory intervention in self-defense?

(1) The United Nations Charter and the Laws of Self-Defense

So, what does international law say about the use of anticipatory intervention in self-defense? Historically, international rules regarding self-defense and engagement in military action were governed by the doctrine of just war, a customary international legal doctrine which posited that states could act to defense their territory, citizens, or, in some cases, interests from attack by another state or group of states. This doctrine applied in both situations in which aggressive action was already taken against a state, and those is which it was clear such an aggressive action was imminent. Prior to the 19^th century, however, clear delineation of this norm was limited to a general agreement among states that aggressive action was limited to a just cause.

In the mid-19^th century, however, clarification of the doctrine was provided by an incident which occurred between the United States and the United Kingdom. In what became known as the Caroline incident, U.S. Secretary of State Daniel Webster enumerated a clear definition of when self-defense calls for anticipatory action.2 In response to the British/Canadian action, the United States did not deny that “circumstances were conceivable which would justify” the actions of the Canadians, and Britain admitted that she had to demonstrate the existence of circumstances of extreme urgency for her actions to be justified.3 In other words, both parties acknowledged that there was a rule preventing intervention by one state into the sovereign territory of another and they also both recognized there was an international rule providing an exception to this prohibition in the case of self-defense. Where the two states disagreed, however, was on the question of whether the facts of the Caroline case brought the case within the limits of the self-defense exception to the principle of non-intervention. In the ensuing negotiations between the two parties, there is one treatment of this exception which stood out and which has generally been accepted since that time: the formulations of the conditions for self-defense enumerated by U.S. Secretary of State Daniel Webster.4

Webster said that for the self-defense exception to non-intervention to apply it must be shown that there is “a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation.”5 Further, the action to be taken in selfdefense must involve “nothing unreasonable or excessive, since the act justified by the necessity of self-defense must be limited as the first, for there is a natural temptation, when force has been resorted to continue its use after the needs of self-defense have been fairly met.”6

Until the end of World War II, the interpretation provided by Webster remained widely agreed upon by states. However, the horrors of two world wars, and the rapid advancement in technology – particular the invention of nuclear weapons – during the first few decades of the 20^th century, however, began to bring into question Webster’s earlier formulation. For example, in drafting the Pact of Paris in 1928, the United States stated “Every nation is free at all times and regardless of treaty provisions to defend its territory from attack and invasion and it alone is competent to decide whether circumstances require recourse to war in self-defense.”7 True uncertainty about the correct meaning of self-defense, however, occurred during the drafting of the United Nations Charter, when a number of delegates expressed a concern that the Webster definition of using anticipatory intervention in self-defense might be too restrictive for the new global situation.8 However, then, as now, the delegates could not agree and thus inserted a number of provisions into the United Nations Charter which left the question open to interpretation.

The United Nations Charter remains today the primary source for determining what the international law concerning anticipatory intervention in self-defense, supported on both sides by several International Court of Justice decisions,9 Security Council resolutions, and General Assembly declarations. The primary provisions relevant to this issue are Article 2(4) and Article 51. Article 2(4) states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”10

Article 51, on the other hand, states: “Nothing in the present Charter shall impair the inherent right of individual or collective elf-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has take measures necessary to maintain international peace and security.”11 It is generally considered that Article 51 of the United Nations Charter is the only possible exception to Article 2(4).12 Legal scholars as well are divided over the “precise scope of the right of self-defense under the law of the Charter.”13 Some interpret the phrase “if an armed attack occurs” to mean only if an armed attack occurs. Other interpret this phrase, in conjunction with the opening phrase “Nothing in the present Charter shall impair the inherent right of self-defense” to indicate a clear intention on the part of the drafters to not interfere with the “natural right of states to use force in self-defense” when they determine such force is necessary.14
This latter view derives some support from the traveaux pre paratoires of the Charter.15

Intervention can be defined as “any act of interference by one state in the affairs of another.16 Generally, as intervention is a violation of another state’s sovereignty, it is considered contrary to international law. However, over time, a number of exceptions to the general rule of non-intervention have arisen, including: cases of legitimate reprisal; to protect one’s nationals abroad; in self-defense; or as authorized under a treaty with the state concerned.17 For purposes of the norm of anticipatory intervention it is the exception of self-defense with which we are concerned.

Despite its long-standing presence as a rule of international law, and the definitive location of its source as a rule (i.e. UN Charter), the international legal principles concerning the use of force is not an absolute rule against which all contrary actions can be judged.18 The international law concerning the use of force is a general rule, one which is open to differing interpretations and a number of exceptions. Over the past half century, many states have made new interpretations of the rules regarding the use of force. These often, certainly, appear as justifications for particular actions states wish to take, or have taken. But each action stems from a particular interpretation of the existing international legal rule. Some of these interpretations have been scoffed at by other members of the international community, but some have led to the creation of new or modified provisions of the international legal principles concerning the use of force (e.g. the right of humanitarian intervention when genocide is occurring as in the Kosovo case).19 Where, ultimately, the U.S. interpretation of the use of anticipatory force will wind up remains to be seen.

This is what happened in the months leading up to the U.S. intervention in Iraq in March 2003. There was an extensive debate over the meaning, limits and exceptions to the rule of anticipatory action in the context of self-defense. Some argued for a conservative interpretation of the provisions of the UN Charter based on historical understanding of this international legal principle, the plain language of the Charter, and supporting custom and court decisions.20 Others argued for a more liberal interpretation of the Charter provisions, one that allows for exceptions to the rule due to the changed circumstance of the international system. Those arguing for a new interpretation suggested that another international legal rule, that of rebus sic stantibus applied in this situation. This rule is a long standing principle of customary international law which was codified in the Vienna Convention on the Law of Treaties.21 Essentially what tprinciple of rebus sic stantibus states is that a principle of international law is valid only as long as there are no material changes in circumstance which merit a change in the law.22 In the case of intervention in Iraq, it was argued, and this has historically been the most common argument in support of anticipatory self-defense, that because of new military technology the meaning of “imminent attack” has changed.23 This was based largely on the fact that if Iraq was to acquire “a nuclear or mass-casualty chemical or biological weapon, it would then be too late to use force.”24

 

(2) The Legality of Security Council Resolutions

A secondary legal question that was part of the debate over Iraq was whether or not existing Security Council Resolutions concerning Iraq in and of themselves gave states the authority under the rubric of the United Nations to intervene in Iraq military.

This is important because it was a secondary argument made by proponents of a broad interpretation of Article 51. Some claimed that, irrespective of whether Article 51 was a valid exception to Article 2(4), the Security Council had already given its authorization for military intervention if Iraq failed to comply with UN requests for cooperation in searching for weapons of mass destruction. In the same way that states adopted different interpretations of the UN Charter provisions, states adopted different interpretations of the authority of Security Council resolutions. The history of the Security Council resolutions on Iraq harkens back to the end of the 1991 Gulf War in which the Security Council While I will not be focusing as closely on these rules, it is important to bear in mind that this was a secondary argument used by states because both the United States and Turkey referred to this as justification for the interpretation they were making of international law.

 

(B) Why is this a good law to look at?

We have selected the international law concerning the use of anticipatory force in self-defense because it will provide a challenging case study regarding the constitutive influence of legal tradition on state interpretation of international law, particularly considering that security and the use of force have long been dominant components in neo-realist theory.25 We have also selected this norm because it provides an interesting example of how the resort to international legal arguments by states has become a regular part of state interaction and decision-making, even when contemplating the use of force.26

While the debate leading up to Iraq was a seminal moment for the United Nations system, we don’t believe that the disagreement within the Security Council (and without) was devastating to the future of the United Nations; nor do we believe that a permanent rift has developed between the United States and France. We do believe, however, that we have seen the beginning in a shift, not only of the principles of international law regarding anticipatory intervention, but in the overarching mechanism by which international law evolves.27 Until the practices of the United Nations are amended (and I do agree they must be amended) to better reflect the contemporary international system, we anticipate we will see more shifts in international law generated by debates and actions such as we saw leading up to the intervention in Iraq.

 

Anticipatory Intervention

I expect that in the case of the international legal rules concerning anticipatory intervention that those states with a legal tradition in which existing principles of international law are easily incorporated into the domestic legal system will adopt a conservative method of interpretation concerning these international legal principles. This is due to the fact that such states will view the principles outlined in the UN Charter and customary international law concerning the anticipatory use of force as foundational principles of international law which can only be amended through the mechanism agreed upon by the international community. Attributed of legal tradition that contribute to this interpretation include a conception that the purpose of law is to protect the good of the community as a whole, a legal system in which the representatives of the people (i.e. not the judiciary) are predominantly in charge of the law, and in which written law is seen as the primary source of law.

Correspondingly, we expect that in those states in which the legal tradition does not easily incorporated international law, the ultimate interpretation adopted by the state will be either liberal or hierarchical, depending on the existence of an outside set of guiding principles which influence all state action. For those states which adopt a liberal interpretation of the international law concerning self-defense, attributes of the legal tradition will generate a belief that law is easily malleable, provided it protects the basic rights of individuals within the community. Moreover, the more bodies (whether judicial or religious) involved in the legal process, and the recognition of some other form of law as primary – other than written codes or legislation – all render the incorporation of international law more difficult, and thus the reverence the state has for the existing international law less dominant. This will make the state either more willing to support a change in the tradition understanding of the law through a more liberal interpretation, or cause the state to support that interpretation which is in line with its dominant outside source in the hierarchical form of interpretation. The latter often corresponds to accepting the international law has it has historically been read, and thus is frequently in line with the conservative interpretation, although arrived at through different methods.

 

Case Studies Investigating the Above.

a.   The Diplomat and the Entrepreneur: France and the U.S.

France and the U.S. share many similarities stemming from the revolutionary principles that form the basis of each country’s identity.28 However, each country developed under unique historical circumstances and each produced, and in turn was influenced by, distinctive legal and political institutions. While both countries are adherents to the rule of law, France and the U.S. do have historically different approaches when it comes to the consideration of international law. France is, and has long been, a diplomatic nation at its core, preferring to discuss and negotiate resolutions to crises under a common legal framework.29 This preference is evident throughout France’s history30 and was certainly apparent in the months leading up to the 2003 Iraq intervention. On the other hand, the history and institutional characteristics of the legal tradition of the U.S. have led to the establishment of an independently-minded legal culture much less influenced by, or accepting of, outside legal influences such as international law.31 Thus, despite political similarities (advanced, industrial democracies) and similar interests in the outcome of the Iraq crisis (both had economic and power interests in the region, as well as a desire to prevent the spread of terrorism and weapons of mass destruction), the different legal traditions of France and the U.S. constituted different interpretations of the international rules regarding the use of anticipatory intervention in self-defense.

 

The Legal Tradition of France

The French legal tradition, founded on a mixture of Roman law, Canon law, and local custom, and heavily influenced by the French Revolution and France’s position in Europe, has developed into one in which law plays a central role in the life of all French people.32 This combination of influences has shaped not only the concept of law in France, but also the relationship that the French legal tradition has with international law. Both the historically unique circumstances surrounding the French Revolution and the Beliefs which emerged from its aftermath – for example, that government is responsible for ensuring that law is observed and enforced – have contributed to the understanding of the role of law in France.33 Moreover, France’s position at the center of Europe and its relationship to not only its European neighbors, but also its former colonial territories around the globe, have combined to develop among the French people a singular sense of state sovereignty and the role of France as the “arbiter of the civilized world”34, a role many see as foundational to the appropriate interpretation of international law.35

Founded on three key historical periods (Roman law, Canon law, and the principles of the Revolution), the French understanding of the purpose of law is one that focuses on the protection of societal good, rather than individual liberties. Roman law was created to protect the Roman civilization as the Empire expanded and incorporated new nations. While individual issues such as contract disputes and freedom to marry were left to local customs and religious practices universal laws were designed to apply in all territories to ensure the peaceful survival of the peoples as a whole.36 This created a conception of universal laws, binding above and beyond local rules.

Following the Roman tradition, the Canon law also maintained the notion of universal laws. Moreover, Canon law focused on developing a “good” society; one founded on common morals and common perceptions of appropriate behavior.37 Finally, the French Revolution codified the understanding that the purpose of law is the protection of the people rather than individual persons.38 As a backlash to the oppressive and unjust rule of the aristocracy – a rule under which the laws were made, enforced, and interpreted by members of the upper classes – the French people demanded and received a new order based on the protections of all classes from the domination by any. While these ideals were not continually implemented in France over the next century, they did remain the core focus of the belief among the French people that the purpose of law was to protect French society.39 This concept of the purpose of law was codified in the French Declaration of the Rights and Duties of Man, which states, “Le but de la societe est le bonheur commun.”40 This sentiment has remains in place over 200 years later.41

 

The Development of French Legal Institutions

These historical foundations of the French legal tradition and the long adherence to the belief that law must focus on the good for society have engendered among the French particular beliefs about how law should be created. Stemming from the time of the Revolution and remaining even through the less-than-democratic years of the emperors, the French legal tradition has obliged law to be made by the representatives of the people, and only by the representatives of the people.42 This has largely meant the legislature, but in some eras has included the executive branch, such as during the reign of Napoleon and after World War II when Charles de Gaulle enhanced the role of the executive in the legal process. At no time in post-Revolutionary French history, however, has there been any power for the judiciary to make or amend the law.43 This prohibition harkens back to the pre-Revolutionary era when the judiciary were seen as the means by which the aristocratic class maintained their hold on their oppressive ways.44

This removal of the judiciary from the law-making process has led to a streamlined procedure for making law, but one in which the development of new meanings or interpretations of the law can be stifled by the political process inherent in the legislative branch.

The French Constitution of 1958 also created in France a monist system in terms of the incorporation of international law into the domestic legal structure.45 Once ratified by the Executive or National Assembly treaties become law in France without further execution necessary by the government46 and are treated the same as, domestic law.47

This streamlined process for ratification and publication, coupled with the fact that, on occasion, the French public participates directly in the treaty process through public referendum,48 facilitates the recognition and incorporation of international law into the French legal system.

 

Recognized Sources of Law

In light of this strongly linear tradition originating in the French Revolution and heavily focused on protecting French society from a return to pre-Revolution institutions, the sources of law accepted in France are those which are clear-cut, all-encompassing, and which may only be altered the same way they were created: through amendment by Parliament. In France, the primary sources of law are written law, including the French Constitution and the French Codes. These documents are designed to be comprehensive, covering all areas in which law should provide guidance for the population, and seeking to be easily read and understood by all French people.49 Judicial decisions, on the other hand, are not considered sources of law in France, and the judiciary does not have the power to interpret French law in such a way that would create a new legal principle.

Interpretation by the judiciary is made in reference to the original intent of the legislature, and only where gaps exist may reference be made to custom or prior judicial decision.

Further, following largely in the tradition of both the Roman law and the Canon law, the writings of legal scholars and jurists continue to maintain an important place in the hierarch of legal sources.50 While this diminished slightly in importance during the latter part of the 20th century, the publications of eminent legal scholars are still relied on by the legislature in drafting new law and by the judiciary in interpreting law.51 These writings are regarded as authoritative indicators of both the current state of the law and the perceptions and preferences of the French population concerning the law.52 This recognition of sources in the French tradition parallels the written nature of international law, as well as the important role that legal scholars – but not judges – play in the creation of new international law. This further facilitates the incorporation of international law into the French tradition, as well as the greater willingness of the French tradition to accept supranational influence on its laws.

Expectations Concerning the French Legal Tradition and Method of Interpretation Given these characteristics of the French legal tradition, it would be expected that France would follow a traditional method of interpretation of international law, particularly in cases where the choices are between adopting a long-standing interpretation of international law and pushing for a new interpretation which has not yet been addressed among the member states of the international community. In fact, in viewing the historical development and modern characteristics of the French legal tradition, France appears as a classic case of a state beholden to a traditional method of interpretation.

The French legal tradition focuses on the good of the community over the rights of the individual. In the French tradition, the people maintain a significant role in the creation and amendment of law through their elected representatives: only the legislature can create new law, and only through the legislative process. Negotiation and discussion are key components of the legal process, reflecting modern methods of preventing the governmental abuses of the past. Further, international law is considered a recognized part of French law, as binding as any other provision of the constitution or codes. These characteristics combine to create a strong relationship between French understandings about law and the purpose of international law – a relationship which renders international rules part of the French legal culture. Resulting from these beliefs, furthermore, is a reduction in the role state interests may play in state decision-making.

When a particular course of action, such as interpretation of an international legal rule, is one guided by law, any material interests fall under the rubric of the law as well. In these instances, the foundational principles and historically-developed, socially-constructed beliefs about law that form the French legal tradition trump state interests.

 

Iraq 2003 Power-Struggle

Examining the French position on intervention in Iraq, it is clear that France did indeed adopt a traditional interpretation of the international legal principle concerning the use of anticipatory intervention in self-defense, arguing that there was no basis in international law to believe such an attack was imminent and thus would warrant anticipatory action. French representatives at the United Nations and French government officials at home vigorously defended their belief that their interpretation of the existing international law was appropriate, given that the threat was not imminent; Iraq was complying with the latest Security Council resolution; and the U.S. did not have authority based on either changed circumstances or previous Security Council resolutions to go forward with military intervention53. President Chirac stated on numerous occasions that Iraq “posed no actual threat and that war was unnecessary.”54 He referred frequently to France as the defender of the status quo and the key foothold for diplomacy and peace.55

It might be suggested that France simply acted on its interests in the Iraq case. Indeed, many at the time sought to paint the disagreement between France and the U.S. as a power struggle between a country seeking to maintain its power position and one at the height of its power. It was also suggested that France had economic interests in maintaining the status quo where Iraq was concerned, including trade agreements with Saddam Hussein and the collection of an $8 billion debt owed to France by Iraq. Others considered that France simply feared the U.S. gaining control of the oil fields in Iraq.

While these and other possibilities are numerous, they do not provide an adequate explanation of the vehement reaction the French representatives had to the legal arguments made by the U.S., and their continued insistence on a traditional interpretation of international law as the best thing for the international community.

If France was truly concerned with amplifying its power position vis-a-vis the U.S., exercising its veto in the Security Council prior to the U.S. action and seeking a condemnation of U.S. military intervention after the U.S. action had begun would have created a stronger backlash against the U.S. position. Instead, however, France generall limited its disagreement with the U.S. to the realm of the tenets of international law and once U.S. action was taken, France sought to work with the U.S. within the umbrella of the United Nations rather than mobilize the anti-war coalition against the U.S. This behavior is consistent with France’s history as a diplomat and its self-perception as a mediator in international conflict. Only rarely has France been one to instigate military action; even in times when France was a greater power than it is now, quiet diplomacy was more in line with French attitudes post-Revolution.

Moreover, if France was simply out to protect its financial interests in Iraq, it would have made more sense for the French to go along with the U.S. once it became clear what the U.S. position was. That way, the French would be able to play a role in the resulting rebuilding of Iraq, including participating in constructing the new regime, operating the oil fields, and seeing to the repayment of their debt.56 By antagonizing the U.S., the French virtually ensured they would play at best a minimal role in the rebuilding of Iraq, and thus would forfeit any interests they had in the country. Further, if it was truly French interests that were at stake, why would the French bother with laying out their legal position and advocating the adoption of this position by the community of states? A disagreement with the U.S. based on interests could be resolved by simply voting against the U.S. in the Security Council and condemning the actions thereafter.

Rather than pursuing this course, however, France continually formulated its opposition in terms of international law, pushing for others to adopt their interpretation of international law as the appropriate one. Such emphasis on the legal justifications for their position refutes traditional international relations assessments of state behavior, and supports the theory of this paper, which is that legal tradition can limit the role interests play in state decisions as well as explain the perceptions of law generally. In this case,the French tradition does have this limiting effect on the role of interests.

The Iraq case was a paradigmatic illustration of how France acts consistently with the attributes of its legal tradition, according to the seriousness with which it treats international law, and the insistence it places on slow, negotiated change in such law as a way to ensure its justness for the community. The French population, having long experience with international relations and deep appreciation for the importance of international law, remains active in ensuring that the actions of the French government incorporate the popular will on international legal issues – whether it be ratifying a human rights treaty, rejecting the European Constitution, or staying out of Iraq.

Regarding the last of these issues, Europeans in general, and perhaps the French in particular, see little in their long experience to support the notion that force and occupation can bring democracy to the Arab world.57 This historical pessimism, combined with extensive and devastating experience with war, helps foster France’s reluctance to embrace new visions of pre-emptive intervention.

 

The Legal Tradition of the United States

Contrary to the development of the French legal tradition, the legal tradition of the U.S. developed in isolation, only tangentially tied to its ancestor, the English common law, and founded upon a body of case law built through judicial decisions as a means of solving disputes.58 Despite the rejection of many English institutional structures by the U.S. colonists, the English system of law creation which centered on judicial decision and dispute resolution proved to be useful for the new colonies due to its flexibility and scalability.59 However, American legal culture was based not on a sovereign authority, but instead on freedom and independence, in keeping with the American colonists’ perception of what the role of law should be in their new society.60 Thus, rather than rely on the body of case law built within the royal courts in England, the colonists set up their own courts, which could refer to English law but whose primary mission was to create their own laws which identified with the spirit of the new country.61 These ideals were reinforced by both the American Revolution and the founding documents of the new nation (the Declaration of Independence, Constitution, and Bill of Rights).

This fundamental difference in the approach to law between the U.S. and France forms the core basis for the different approaches the two states take to international law. The manner in which law is created and applied in the two countries – through case decision in the U.S. and through written doctrine in France – ties the historical development of each legal tradition to the modern view of law and determines the ease with which international law is viewed as a part of the modern legal system.

Stemming from the country’s origins in revolution for independence, the legal tradition of the U.S. developed according to the goal of protecting individual rights, combined with a definitive separation of powers and a provision of power for the judiciary.62 Each of these components, to some extent, contradicts those characteristics that formed the early French legal tradition. Contrary to the French history, the legal tradition that emerged out of the American revolution led to the development of unique institutions which were unlike any that would develop in Europe for at least another 100 years.63 This, coupled with the general perception of the U.S. as being “exceptional” led to both an institutional development and a public perception of the role of law in society that differed greatly from that of France.64

Although the founders of the U.S. were, like the French, children of the Enlightenment, the works of Locke, Montesquieu, and Rousseau took on a different meaning in the U.S. In the U.S., Locke’s belief that man creates civil society for the purpose of protecting individual rights such as life, liberty, and property formed the foundations of Jefferson’s Declaration of Independence.65 By focusing on the views of Locke regarding civil society, rather than the views of Rousseau (which were so influential in France), the American people adopted as their mantra a focus on individualism. In this paradigm, law must exist to order society, but this order comes through the protection of the interests of the individual rather than the community.66

Based on this history, the U.S. became “fundamentally individualistic” in its social forms, including the understanding of law.67 This belief persists to the present day, providing remarkable consistency in the American tradition.

As the French belief that the purpose of law is community-oriented has an overarching influence on the entire French legal tradition, so does the U.S. understanding of law as a means of protecting the liberties of the individual dominate the other attributes of the U.S. legal tradition. Like the post-Revolution French tradition, the post-Revolution U.S. tradition began with the division of powers among different branches of government.68 Unlike the French system, however, the powers separated in the U.S. included substantial powers for the judiciary, including the power of judicial review. The Court’s assumption of the power to review the actions of the other branches of government is a clear illustration of the different roles of the judiciary in the U.S. and France. French courts do not have such power, and indeed are unlikely to even interpret themselves as having the authority to possess a power of judicial review on a widespread basis. U.S. courts, on the other hand, are in the business of making law, and in making law they have been able to assert for themselves additional power to share control of the legal agenda.69 Of course, in the U.S., Congress and the executive have the power to draft and pass legislation.70 But the power of the Supreme Court to at any time declare legislation incompatible with the principles of the Constitution alters the legal structure within society.

The legal tradition has also had a great influence on the relationship between U.S. domestic law and international law. Unlike the monist approach adopted by France, the U.S. is strongly dualist in its approach to international law, and has been since its inception. This means that any international agreement that the U.S. does ratify is not automatically incorporated into the panoply of domestic laws upon publication.71 Rather, in the U.S. such instruments are generally held to be non-self-executing, and thus must be enacted into U.S. law through additional Congressional legislation.72 Moreover, unlike France, where an entire section of the Constitution of 1958 is devoted to international treaties and their role as law in France, the U.S. Constitution has but one clause relating to international law.73 This treatment of treaties in the Constitution, coupled with subsequent interpretation by the three branches of government, has placed international law in a different position in the U.S. than in France.74 Whereas in France, treaties are held in high regard as a source of written law, the U.S. has a historical scepticism concerning the power of treaties as a form of law.75 Even though the Constitution declares treaties to be the supreme law of the land, in practice, the U.S. government has treated international law as secondary.76

 

Source

The sources of law are also significantly different in the U.S. than they are in France. Although Congress is responsible for passing legislation which is considered the law across the U.S., the supreme law of the land in the U.S. remains the Constitution.77

The U.S. Constitution has a greater influence on the legal tradition of the U.S. than any other constitution in the world. First, under the hierarchy of U.S. law, no legislation, no judicial decision, and no international legal principle can take precedence over those provisions in the Constitution. This has a number of meanings for the U.S. interpretation of international law, but first and foremost it means that outside influence into the laws of the United States is limited by the Constitution. And since the Constitution focuses on individual rights and obligations, the provisions of international law will often be seen as interfering with these rights.

Furthermore, the U.S. Constitution is very concise in its provisions, but also quite vague. This has required extensive interpretation in order to apply Constitutional law to daily life in the U.S., and the final authority for this interpretation, and thus the primary authority for the creation of new law, is the judiciary. This has a great influence on the perception of law creation in the United States because, by its very nature, creation of law by the judiciary and creation of law by the legislature are two very different things. This difference is characterized most clearly by the fact that the legislature debates first and then passes a law, and the courts create law based on actions already taken. This creates a very different mindset towards the law in the United States than in a country like France.

Moreover, in contrast to the French tradition, rarely in the history of U.S. law have the writings of legal scholars or general legal doctrine been used as a source of law.78 Nor have the moral precepts of religion been allowed to pervade U.S. courtrooms.

Historically, U.S. law adheres to judicial decision-making as its primary source of law, followed by statutory law as a relatively distant second. Because of this limited collection of sources of law, the law in the U.S. is able to be more adaptable because new law is primarily formed out of judicial decision. At the same time, however, these characteristics have, from time to time, made the relationship between U.S. domestic law and international law a strained one.

 

Expectations Concerning the U.S. Method of Interpretation

The primary attributes of the U.S. legal tradition are thus significantly different than those found in France. Although both countries experienced revolution around the same time, the historical origins of the revolutions and the subsequent legal and political developments ultimately resulted in different legal traditions. In the U.S., the purpose of law was founded, and has remained, staunchly focused on the protections of individual liberties. Correspondingly, the other attributes of the legal tradition including the method of creating the recognized sources of law are designed to facilitate this purpose. This is especially true in terms of the absolute primacy given to the U.S. Constitution and the subsequent Bill of Rights, as well as the dominant authority of the judicial branch in interpreting these documents and (through the mechanism of individual court decisions) focusing on the needs of individual citizens in doing so. The French focus law on the group and correspondingly insist modes of legal creation and implementation be designed to protect the group through diplomacy and the passing of all-encompassing law. The U.S. tradition, on the other hand, focuses on the individual and on protecting the individual spirit that was so central to the founding of the country.

Perhaps most significantly, however, is the fact that the U.S. tradition of creating and amending law is so distinctly different from the manner in which it is done at the international law level. This often means that the U.S., while supporting the principles behind provisions of international law, moves forward with new interpretations of that law before other states, with different legal traditions, are ready. While some may argue this indicates arrogance or a unilateral manifestation of the U.S. power position, this examination suggests it simply reflects the way the U.S. makes law. Because new law is made as situations happen – as cases come before the courts – the U.S. has a history of pushing the envelope and making new arguments where the law is concerned. Those skills are what U.S. jurists are taught in law school, and that is how the advancement of law is carried out. If a new argument works, then the new principles enter the realm of law as precedent. If the argument works repeatedly across the nation, it often becomes codified in legislation. This mirrors the approach of the U.S. where international law is concerned: Act first, then argue consequences later. While the French will take the very generalized rules of international law and see them as binding rules, those in the U.S. regard these international law concepts as having less the authority of rules and more the character of general expressions towards which one should work as they lack sufficient specificity for one to believe they are absolutely binding; the specificity that comes, in the U.S., through interpretation by the courts.

Given these attributes of the U.S. legal tradition, it would seem the U.S. could adopt a number of different interpretative methods when considering international law. Evidence would suggest that the U.S. could adopt either a liberal interpretation or a hierarchical interpretation. However, given that the issues involved in anticipatory intervention do not involve fundamental Constitutional principles, in this case it would be expected the U.S. would adopt a liberal interpretation of international law. This is a method of interpretation that recognizes the underlying authority of international legal principles, but allows the U.S. the leeway to adopt new interpretations of international law which are so central to its own legal tradition. This indeed was the case in 2003, when the U.S. interpreted the international law concerning the use of anticipatory intervention in self-defense in light of what it argued were the changed circumstances of a post-9/11 world in which weapons of mass destruction altered the definition of imminent danger from that of the mid-19^th century.

 

U.S. Interpretation of International Law

The interpretation of international law adopted by the U.S. during the time it invaded Iraq, was not a completely new interpretation for the U.S. As far back as 20 years ago, then-Secretary of State George Schultz gave a speech warning that there would have to be an expansion of the existing interpretation of the role of anticipatory intervention in self-defense to combat the increasing threat from terrorists.79 In the case of Iraq in 2003, the U.S. based its interpretation on the evidence collected over a twelve-year period against the regime of Saddam Hussein.80 The U.S. argued that the legal bases justifying their interpretation of international law were threefold. First, international law itself allows for changes in interpretation if circumstances change.81 Second, Saddam’s actions constituted an imminent danger to the U.S. and the international community as that term must be understood in the 21st century, in light of the rise of terrorism and the capabilities of weapons of pass destruction.82 Third, Saddam was in violation of existing United Nations Security Council resolutions which allowed for the use of all means necessary to ensure compliance should Saddam fail to fully and completely comply.83 All of these
legal arguments were made based on U.S.’ interpretation of existing international law.

The U.S. interpreted Article 51 of the United Nations Charter to allow the U.S. to intervene in self-defense, irrespective of UN authorization. The U.S. further interpreted the term “imminent” to encompass the uncertain and extremely dangerous threat posed by advances in weaponry technology since the end of WWII, and the complete disregard by Saddam Hussein of the tenets of international law.84 The U.S. further interpreted the existing Security Council resolutions as authorizing military action without the need for further resolutions. In this case, the U.S. claimed authorization for action under Security
Council Resolution 1441, stating that the language of this resolution was clear in its provisions.85

In the months leading up to the U.S.-led intervention in Iraq in March 2003, the U.S. presented its case for a liberal interpretation of international law in the same way the lawyers in the U.S. present their case before a judge – a uniquely American style of arguing that failed to convince many other states. Moreover, the adversarial tone adopted by the U.S. as debates over the appropriate interpretation of international law progressed did not disturb most Americans (for ours is an adversarial system of legal argument), but greatly offended many others. Despite its controversial approach to the problem, however, the U.S. was making its case for its interpretation of international law within the structures of international law itself. In other words, the U.S., like France, recognized the underlying legal principles at stake – that all states have a right to freedom from intervention, that certain circumstances create exceptions to this rule, and that if at all possible, it should be the United Nations that makes the decision as to when such exceptions are present – but adopted a different method of interpretation concerning these legal principles, one consistent with the U.S. legal tradition.86

Moreover, as with the case of France above, the U.S. legal tradition shaped the role that U.S. interests played in the state’s interpretation. While neo-realists and neo-liberal institutionalists would argue that the U.S., as the world’s sole remaining superpower, simply “interpreted” international law in a way that matched its interests (i.e., the U.S. wanted to intervene militarily in Iraq; the U.S. could afford to intervene militarily in Iraq; and so the U.S. interpreted international law in a way that allowed it to intervene militarily in Iraq), this paper suggests that the U.S. interests were able to play a role because of the form of legal tradition present in the United States. As the foundational purpose of the legal tradition seeks to protect individuals’ interests, so does the legal tradition protect U.S. interests. This is contrary to France, where the legal tradition greatly limited the role interests were allowed to play in the decision-making process.

This theory of U.S. interpretation of the principle of anticipatory intervention in self-defense is further supported by the consistency of the behavior of the U.S. towards international law throughout the country’s history. Power theory would argue that today, as the world’s sole superpower, the U.S. has the position to ignore international law if it wants and change it if it wants. This, the argument goes, is why the U.S. went ahead and intervened in Iraq, despite the lack of UN approval. However, an examination of the U.S. history with regards to international norms points to the opposite conclusion. The U.S. did not begin its shift to great power status until the turn of the 19th century, and did not achieve great power status until World War II.87 In the preceding period, the U.S. was inferior to major European powers such as England, France, and Spain, in terms of military, naval, and in some cases economic power. Yet the U.S., on several occasions during the period from 1787 to 1898, engaged in actions that would belie its power position.88

Moreover, U.S. history indicates a long-standing push to alter the global interpretations of the international law concerning when it is appropriate to intervene in the affairs of another state.89 Recent examples include intervening in Bosnia to stop civil war; intervening in Kosovo to stop “ethnic cleansing”; intervening in Somalia to provide food and other aid; and intervening in Macedonia to prevent the country from disintegrating.90 All of these actions were controversial. Some were ultimately supported by NATO or the UN. Ultimately, however, the push to adopt a new interpretation of international law – the innovative legal arguing – stemmed from the legal interpretation of the U.S. And in the end, in a number of these cases, the U.S. action resulted in a shift of the global understandings of international law to incorporate the U.S. interpretation. This history indicates that compliance with international rules and action within the international system is not merely a result of power and interests, but instead is based on the state’s view that the international legal order is a vital component of the international system, needing a push every now and again to remain relevant.91 Thus, even when interests are at stake (which, after all, they almost always are), “Americans want … interest backed by principle.”92 This perception of appropriate action under international law calls for adherence to the rule of law, but at the same time, allows freedom of interpretation unlike that found in France where external constraints coupled with public perception about the role of law limit the influence of interests.

 

b.   The Modernizer and the Traditionalist: Turkey and Egypt

As is the case with France and the U.S., Turkey and Egypt have many historical similarities in the development of their legal traditions. However, key events throughout the history of the two countries have resulted in different perceptions about the role of law, the proper creation of law, and the acceptable sources of law. In the case of Turkey, an historical relationship with the countries of continental Europe, coupled with an underlying belief in law as the driving force behind modernization and the protection of democratic values, has resulted in a legal tradition not dissimilar from those of the civil law countries of Western Europe. Egypt, on the other hand, experienced a stronger historical relationship with the Arab culture and a less influential experience with the countries of Europe. This history, coupled with a reverence for traditional culture and values, has created a legal tradition more conservative in its views of outside influences and more attached to guiding principles of Islam. Each of these legal traditions provides a different framework within which the Turkish and Egyptian leaders made their decisions about whether or not the Iraq situation was one in which anticipatory intervention could be used in self-defense under international law. Turkey adopted the same interpretation as the U.S., determining in the end that given the new circumstances of a post-9/11 world and the evidence that had already been presented, Article 51 of the United Nations Charter and existing UN resolutions allowed for intervention. In contrast, Egypt argued, as did France, that the correct interpretation of existing international law on the use of anticipatory intervention in self-defense did not allow such action in the case of Iraq. Unlike France, however, Egypt took this view, not based on preferences for diplomacy and discussion, but rather because the principles of Shari’a adhered to in Egypt did not allow such action.

 

The Legal Tradition of Turkey

The Turkish legal tradition began centuries ago and has developed through periods of widespread empire and significant destruction. While it has roots in the country’s long history, many changes in would have revealed a religious society, where perceptions of the law were founded in the religious law of Islam. Under this perception, law not only provided rules for the conduct of society, but law was considered a tool of the state with strongly centralized power limiting any role for the judiciary, and sources of law stemming from either religious documents or sultanic decrees. Today, however, Turkey’s legal tradition has developed into one where the communal focus of law is still dominant, but religion has been replaced by cultural values underlying democracy, freedom, and individual protections. Law became for Turkey a mechanism by which the country could move forward, rather than an oppressive link to the past. State interference in the law and the legal system continues to decrease and Turkey has incorporated much international law into its domestic legal tradition. It is this modern legal tradition in Turkey that provided the constitutive framework under which Turkish decision-makers ultimately decided to adopt a liberal interpretation of the laws on self-defense and the use of anticipatory intervention in the case of Iraq, although based on different legal reasoning that that of the U.S.

Arising out of its mixed history, the Turkish legal tradition today is one in which the purpose of law is focused on societal good. While modern Turkish law also strives to ensure the protections of fundamental rights and freedoms of its citizens, perceptions of the law remain rooted in the belief of law as the mechanism by which Turkey’s heterogeneous society may be held together and refocused to think of the Turkish nation before ethnicity, religion, or politics.93 This focus on nationalism stems from the mid-20th century, when Ataturk, rejecting Islamic law as divisive, advocated for an indivisible and unified Turkish state, one which stresses a “nationalist notion of the Turkish nation above any other ethnic or religious identity.”94 Today, focus on the communal good remains strong, and is enshrined in Turkey’s Constitution in its language promoting a social state.95

These provisions ultimately mean that the obligations of the Turkish state to Turkish society require a much greater degree of government intervention and involvement in social and economic affairs than is generally acceptable in a more individually-oriented tradition such as that of the U.S.96 The purpose of law focuses on state obligations rather than individual rights. This is a key element in the approach Turkey takes to international law, which tends to highlight social measures and government involvement rather than the independent spirit found in less social states.

 

Creation of Law

Turkey’s legal tradition has developed over time into one in which the separation of powers exists, but in which the contributions of the judiciary are minimal in terms of creating new law and providing significantly new interpretations.97 Law is created though the actions of the legislature and, as in the civil law states, is designed to encompass all conceivable situations, leaving little room for open interpretation. The intent of the legislature in creating the law is considered binding. Further, following the example of many continental European countries, Turkey’s judiciary functions as primarily an interpretive body, one which looks to the intent of the legislature, executive, European Union, and other Turkish government agencies in applying law to given cases.98 There is no power of judicial review equivalent to that found in the U.S., and the judiciary maintains nowhere near the realm of independent authority or freedom of activism found in the common law countries generally.

Although similar to the French legal tradition in many ways, the Turkish legal tradition has not adopted a monist position towards international law as the French have. The incorporation of international treaties into Turkish domestic law, or the recognition of a principle of customary international law in the domestic law, requires affirmative action on the part of the Turkish government.99 This is due to a number of factors. First, the newness of Turkish democracy, and the continuing struggle to create a modern, democratic Turkish state, while at the same time maintain the “Turkishness” of the state, makes the Turkish government reluctant to cede authority over its laws in this manner.

Adopting a monist stance towards international law requires states to relinquish an additional modicum of sovereignty, beyond simply accepting law created by an outside source. Depending on the history of each state, this may or may not be viewed favorably. Presently in the case of Turkey, the relinquishment of this level of sovereignty has not been accepted.

Second, while the primary for binding Turkey under international law rests with the executive, the legislature still must officially enact the law domestically. Moreover, since many recent international laws have provided more explicit individual rights than can be found in the Turkish tradition, the conflict between the domestic law and the international law means that internalization has been difficult. And while the minimal role for the judiciary and the easy reference to written sources of law make the recognition and understanding of written international law easier once incorporated into the domestic legal tradition, getting to that point is more difficult due to the dualist nature of the Turkish tradition.

The sources of law relevant to Turkey’s legal tradition have also followed those of the continental civil law states such as France and Switzerland. The primary sources of law in Turkey are the Constitution and the codes – in other words, written law100.

Indeed, the Turkish Constitution is a foundational code than a foundational constitution, incorporating 176 articles in seven parts. Scholarly writings, judicial decisions, and custom are considered secondary sources of law in Turkey, as they are in France.101

Particularly in the realm of international law and the regional law of the European Union and the Council of Europe, the opinions of legal scholars on the state of the law are examined; but in most cases, scholars have the same role in Turkish law as they do in the law of many civil law countries.102

As mentioned above, the role of the judiciary in Turkey is limited to applying the extensive laws in the codes to the cases before them. The codes are written in such as way as to attempt to cover the vast majority of conceivable situations that may arise, and thus leave as little “wiggle room” as possible for judicial interpretation. In those instances in which the code provisions are not on point, judges may refer to other previous judicial decision, scholarly opinion, and custom to fill in the blanks, but their subsequent decision is not considered precedential for subsequent cases and is not seen as creating new law.103 New law, or changes in existing law, must come through the other branches of government.

 

Expectations Concerning the Turkish Method of Interpretation

These then are the key characteristics of the Turkish legal tradition: the purpose of law is communal and focused on the Turkish nation; the creation and amendment of law is a task left to the legislature and executive, with minimal participation by the judiciary; the state maintains a dualist position towards international law; and the written sources of law such as the constitution and codes are the primary sources of law. Much of what is responsible for the development of the Turkish legal tradition in this way over the past century is a refutation of the Islamic law of the past in favor of a nationalistic approach to law, as well as a strong desire to strengthen ties with the nations of the West – both Europe through membership in the European Union, and the U.S. through strong security and economic ties.

What, then, does this mean in terms of how the Turkish legal tradition affects the Turkish approach to the interpretation of international law? Turkey’s legal tradition places it in a unique position; a cross between that of the U.S. and that of France. While it incorporates many of the same elements that developed in the French legal tradition –such as a communal purpose to law, a minimal role for the judiciary, and sources of law focusing on detailed written documents – Turkey also maintains some elements distinct from those of the French tradition that are, in fact, closer to the U.S. tradition. These include a strong relationship between the sense of nation and the legal tradition; the use of law to consolidate a heterogeneous society; and a reluctance – largely due to historical experience – to relinquish sovereignty over the law to an outside source. Thus, as it has been throughout its history, Turkey finds itself at a crossroads in the development of its legal tradition.

Based on this, it would be expected that the legal framework in which state decision-makers approach that international law, be one which allows a certain amount of freedom in how that law will be interpreted. As is the case with the U.S., this does not mean that because international law is not as easily incorporated into the domestic legal tradition Turkish decision-makers are free to ignore it altogether. Turkey is a nation governed by the rule of law and, as such, has an understanding that international law does not allow certain choices as possibilities for actions because they are simply outside the law. However, what it does mean is that Turkish decision-makers when faced with a situation to which a principle of international law applies, will make their choice on how they are going to interpret that principle based on a background in which acceptance of the existing interpretation of a principle of international law is not considered absolute.

The limited ease with which international law becomes part of Turkish law, coupled with the way law is viewed and the reluctance to relinquish sovereignty, indicates that Turkey is more likely to take a liberal approach to the interpretation of international law in most circumstances. Indeed, in the case of the international legal principle of using anticipatory intervention in the case of self-defense, Turkey adopted the liberal method of interpretation in framing its decision about the meaning of the relevant international law.

The Turkish Interpretation of International Law in the Case of Iraq 2003 Turkey’s adaptation of the liberal interpretation of international law concerning self-defense was not as immediate as that of the U.S.104 Given the combination of attributes present in the Turkish legal tradition, there is a greater respect for the recognized interpretation of law, and new meanings are generally given only through the deliberation and enactment of the domestic Turkish political institutions, not on a supranational level. This is reflected in a number of statements by Turkish government officials in the months leading up to the UN intervention,105 and was further reflected in the vote by the Turkish Grand National Assembly in early 2003, which did not authorize U.S. troops to enter Turkish territory on the ground.106 However, the evidence that continued to be provided concerning the dangers of the Iraqi regime, coupled with the violation by the Iraqi regime of those tenets of the rule of law that Turkey itself has fought to maintain, ultimately resulted in support among Turkish decision-makers for the intervention.107 As a country that has modernized its own legal tradition significantly, and continually, for the last 100 years; that continues to do so in order to become part of the democratic global community; and that has engaged in some radical restructuring of its own laws in order to achieve this goal, Turkey’s view of the infractions by Iraq was one of offense at the clear flouting of international law.

The argument could be made, of course, that Turkey really did not act as it did in adopting the liberal interpretation of international law because of its legal tradition, but rather, Turkey’s actions were the result of its cost-benefit calculation that supporting the U.S. in a minor way, while at the same time not giving the U.S. everything it wanted in terms of military support, protects Turkey’s position with both Europe and the U.S.108 As with the U.S. and France, however, a closer examination reveals that the role of interests in Turkey’s decision can be explained by the country’s legal tradition. In the case of military intervention in Iraq in 2003, Turkish interests in the situation were many. Some, such as concern over destabilization of the Middle East; potential loss of economic revenue from trade as well as tourism (indeed, just coming out of its longest recession since 1945, estimates prior to the intervention were that it would cost Turkey over $10 billion in economic losses); fear of an uprising by the Turkish Kurd population; concern over the potential influx of refugees from Iraq in the event of a conflict; the desire to not antagonize its Arab neighbors by being seen as a pawn of the West; and the desire to act in accordance with the states of the European Union in order to preserve its possibility for membership – all would indicate that Turkey should interpret international law as not allowing anticipatory intervention.109 Other interests such as the fact that Turkey is heavily dependent on the U.S. for both military and economic aid and was likely to receive significant economic incentives for support of the U.S. position; that if Saddam did have WMDs Turkey’s proximity to Iraq made it a likely target; that Turkey’s belief that Saddam’s violations of international law were detrimental for the region as a whole –would indicate that Turkey should interpret international law as allowing the anticipatory action.110 Traditional international relations theories would weigh this multitude of competing interests and most likely conclude that the costs to Turkey of adopting a liberal interpretation were too high. Although Turkey does receive a great deal of security and economic assistance from the U.S., traditional international relations theory would interpret the security and economic boost Turkey would receive from joining the European Union, along with the insecurity that would come from supporting a conflict in the Middle East, as too great a danger to the stability, security and prosperity of the Turkish state to participate in any anticipatory action. Yet, in the end, these traditional expectations were not met. Turkey did adopt the liberal interpretation laid out by the U.S., and, although it did not militarily engage in the intervention, it did provide both legal support through its liberal interpretation and logistical support by allowing the U.S. troops overflight privileges as well as limited access to Turkish territory. And while Turkey served other interests by following the path of the U.S., the benefits of these interests did not appear to outweigh the costs.

In this situation of competing interests, the Turkish legal tradition constituted the understanding of the appropriate interpretation to adopt. Turkey focused its interpretation on the violations of international law perpetuated by Iraq. Rather than focusing on creating a new definition of imminent, as the U.S. interpretation called for, Turkey instead focused on the violations committed by Iraq under international law against the international community. As a legal tradition which maintains a community-oriented purpose of law, and in which law is understood primarily as written law passed by the legislature, adopting a new definition of anticipatory intervention as advocated by the U.S. would have pushing the boundaries of Turkey’s legal tradition. However, given the struggles in Turkish history to create a strong rule of law and unify a diverse population under the law, the continued violations of accepted rules by Iraq offended Turkey’s sense of appropriate behavior. Moreover, as a country in which the acceptance of supranational influence in the law is presently minimal, Turkish decision-makers were free to consider interests in a way they would not be if Turkey also maintained a monist position as France does. Turkey’s compromise was to approve intervention, but based on Iraq’s past violations under international law rather than on a new interpretation of international law.

This interpretation allowed for consideration of Turkish interests, which were many, but also focusing on these well-observed violations as a basis for their support of intervention in Iraq, Turkey was able to protect its interests in terms of both the European Union and the United States.

 

The Egyptian Legal Tradition

In contrast to Turkey’s modernization of its legal tradition over the past century, Egypt has retained many of its historical beliefs about the role of law in society. This is largely due to its strong retention of Islamic law as a foundational component of its domestic law.111 The presence of Islamic principles, coupled with the inclusion in the Egyptian legal tradition of a number of Western and Socialist influences, has created in Egypt a unique view of the law that reaches back towards the country’s history as well as forward.112 In recent years, however, the question has been raised as to whether the country is reaching forward to a secular rule of law focused on the maintenance of an independent judiciary, individual protections, and a democratic process, or whether the country will adopt a more Islamic-style model of law focused on religious guidance and resistant to modern influence, including the influence of international law.

Egypt has one of the oldest legal traditions in the world. The origins of law in Egypt began over 5,000 years ago,113 developed by a people that historians consider the “first large-scale, organized human society” in the world.114 From these foundations, the legal tradition of Egypt has developed largely shaped by outside influences, which often arrived in the form of invaders and colonizers.115 Of these, however, the most influential, was the arrival of the Arabs in Egypt in 642 AD. The Arabians brought with them Islam, and with Islam, the Muslim law of the Shari’a.116 For the next 1300 years, Islamic law was the dominant legal tradition within the Egyptian territory, and even through the significant changes that have taken place in the Egyptian tradition over the past 100 years due to increased Western influence, Islamic law remains a dominant force in the Egyptian legal tradition.117 This, coupled with the development of a cohesive nationalist Egyptian tradition, has resulted in the development of a “secular nationalist” state which focuses on pan-Arab socialism.

 In the Egyptian legal tradition today, the purpose of law is focused on the societal good, in both a spiritual and a secular way. Islamic law does not separate religion from law and the religious laws of Islam govern the day-to-day lives of the people. Unlike Turkey, which has long sought to construct a legal tradition that focuses on building national Turkish unity among its various cultures and religions, Egypt moved to consolidate the Arab and Islamic components of its history over the course of the 20^th century. This has included a somewhat limited adoption of Western-style individual liberties, in a manner that accommodates Islamic-based traditions and values. While Egypt has incorporated a number of modern, Western-style laws into its legal system, history, culture, and religion remain the primary foundations of the Egyptian legal tradition.

The focus on the communal, rather than the individual, in the Egyptian tradition also stems from another source that has influenced the development of the understanding of the role of law in Egypt: the Socialist legal tradition. Partly as a backlash to the European colonial powers and partly because Egypt was often a central pawn in the ideological war between the U.S. and the Soviet Union, Egypt’s legal tradition has incorporated a number of socialist beliefs into its understanding of the purpose of law in society. This is reflected today in Egypt’s Constitution, which claims social solidarity as the foundation of society.119 This focus on the group combines with similar propositions of the Islamic law to make this a very strong tenet of Egypt’s legal tradition.

 

Creation of Law

Given these unique origins, the Egyptian legal tradition views the proper creation and amendment of law in a different way than the U.S., France, or Turkey. Law in Egypt is created through a parliamentary process, although the limited nature of free political participation in Egypt also limits the representative nature of law creation. Strong, centralized authority remains in the executive branch,120 and all new law must conform with the principles of the Shari’a. The secular judiciary in Egypt plays a role essentially similar to that of France and Turkey and is the least powerful branch of government.121

What distinguishes the Egyptian legal tradition, however, is the special role of the Shoura Council122 and the Constitutional requirement that all law must uphold the principles of the revolution and conform to the principles of the Shari’a play in the creation and amendment of law.

Given the strong role of Islamic law in the Egyptian legal tradition, Egypt has adopted a dualist position towards international law. In order for international law to become part of the domestic legal tradition in Egypt, it must be enacted into the domestic law of Egypt, after review by the Shoura Council and potentially the Constitutional Court.123 No international law may be incorporated into Egyptian law if it conflicts with the Egyptian Constitution; and therefore conflicts with the Shari’a. In practice, this has made it extremely difficult for international law to be internalized in Egypt, even if the government has indicated an intent to be bound through diplomatic signature or verbal recognition.124 The government of Hosni Mubarak, for example, has offered numerous proposals based on international law focused on human rights, banking and labor law to the Parliament for consideration. Given the strict tenets of the Egyptian legal structure, however, he has not been able to get “more than a handful converted into law and put into practice.”125 This factor greatly influences the role that international law plays in the Egyptian legal tradition, and limits to large extent the freedom of interpretation Egyptian decision-makers have at their disposal.

These attributes have thus made the incorporation and internalization of international law into the Egyptian legal tradition extremely difficult. Despite the fact that both the communal purpose of Egyptian law and the reliance of written law should signal the ready acceptance of international law, in the case of Egypt the underlying cultural and religious values constituting the legal tradition dictate otherwise. Given that most international law is created in a multilateral fashion with states who do not adhere to the principles of Islamic law, it is unlikely that international legal rules created at the international level – even if enacted with the participation and approval of Egypt – will be internalized within the Egyptian legal tradition without a substantial amount of domestic involvement, both from the religious council and the legislature.

The Shari’a also significantly influences the sources of law considered binding in the Egyptian legal tradition.126 The Egyptian Constitution is considered the supreme source of law in Egypt.127 However, because of the clause in article 2 of the Constitution requiring that all subsequent law conform to the principles of Islam, Islamic law remains a primary source of law in Egypt.128 Islamic law is today primarily a written form of law.

This, coupled with the fact that Egyptian Constitution and the European-based codes are the next most important sources of law, creates in the Egyptian legal tradition an understanding of written law as the primary source of law. Non-Islamic custom, judicial opinion of the secular courts, and the writings of non-Islamic scholars have minimal influence in Egypt, even as secondary sources of law. Islamic doctrine (ijma) and the analogical judicial opinions of Islamic courts (qiyas) have a slightly greater authority as sources of law. However, because it is generally believed that interpretation of Islamic law may only be done by certain religious leaders, new interpretation by other sources is not widely accepted.

To be sure, Islamic law is not the only law in Egypt.129 Egypt’s Constitution of 1971 is written very much like the Constitutions of many of the Western European nations, and incorporates a majority of secular provisions which must viewed in conformance with Islamic principles as stated in Article 2. In a number of areas, secular law (modeled after the civil law systems of France, Switzerland, and Germany) is the relevant law. In these cases, however, the sources of law retain their focus on the written forms of law, following the general pattern in most civil law countries. Egypt maintains a number of codes, also modeled on those of the European states.130 As is the case with the Egyptian Constitution, however, these codes, although Western in origin, maintain the characteristic Egyptian synthesis between Islamic principles and modern law in order to produce a code which is “both modern and applicable to the special circumstances and background of the Egyptian population.”131 Given the extremely limited role of the judiciary in Egypt, judicial decisions are not considered formal sources of law, but may be relied on for guidance.132 Custom and scholarly opinion are considered as subsidiary sources of law only,133 and in the absence of any of these, Egyptian judges may look to “natural law or rules of equity.”134 None of these diminish, however, the overarching influence of the principles of Islam and, due to the dualist nature, the limited role in Egypt for international law.

 

Expectations Concerning the Egyptian Method of Interpretation

These noteworthy attributes of the Egyptian tradition, coupled with the historical circumstances that resulted in their adoption, would be expected to place Egypt’s method of legal interpretation generally in the hierarchical category. It is possible that in certain situations, where the international law at issue is primarily outside the usual scope of Islamic legal consideration (for example, a particular international rule regarding the use of weapons in connection with the transportation of goods), Egypt might follow its civil law history and adopt a traditional interpretation of international law. However, this would be the exception rather than the rule. As discussed above, Islamic law, while perhaps not as pervasive in the Egyptian legal tradition as in those of other countries (such as Saudi Arabia), requires that all action – including the action of interpreting international law – be done according to Islamic principles. Moreover, Islamic law rejects the creation of law by any source other than one authorized by the Shari’a. Most international law, created by a group of states at the international level and often incorporating concepts that are anathema to Islamic law, would not be something that Egyptian decision-makers would be able to interpret without reference to the foundational Islamic principles. Furthermore, often what this hierarchical method of interpretations means for Egyptian interpretation of international law is that no action is taken regarding a particular law, rather than trying to make international law conform to the Islamic standards. This would be the case whether the subject matter of the international law was human rights (for example certain rights for women), political rights (e.g., freedom of speech), or rules regarding self-defense.

Thus, while the characteristics of the Egyptian legal tradition do not differ significantly from those of Turkey on the surface, the Egyptian tradition is the result of substantially different factors which ultimately influence the interpretation Egypt makes of international law.135 The role of law in Egypt is viewed as protection of the societal good, just as in Turkey. However, the notion of what constitutes the societal good is quite different. In Turkey, the societal good focuses on creating a cohesive Turkish nation. By way of contrast, in Egypt, the societal good has two components. The first is that society must be provided with the rules necessary to live life in accordance with principles of Islam. There is no push for nationalism beyond allegiance to the Arab nation as a whole and to the principles of Islam. Second, in certain areas, the concept of societal good takes on the socialist ideas of communal economic good, rather than the pursuit of individual wealth. The creation and amendment of law is largely left to the executive and legislature, with the understanding that all law conforms to Islamic principles as outlined in the Constitution. The creation of new law through judicial decision or new interpretation, particularly in a non-Islamic manner, is not accepted. The sources of law are predominantly written, both in terms of Islamic law and secular law, and Egypt has adopted a dualist position towards international law. Contrary to the Turkish legal tradition, much of what has driven the development of the Egyptian legal tradition is the retention, and even the further integration, of Islamic law into the legal tradition and the minimal incorporation of Western-style legal attributes.

Based on this, the legal framework within which state decision-makers approach international law that is binding on Egypt is one in which all decisions about interpretation are made in conformance with an outside source: the Egyptian Constitution and its corresponding reference to the principles of Islam. Moreover, because the of the nature of the Egyptian legal tradition and the central role that religious law, rather than solely secular law, plays in this legal tradition, Egypt does not maintain the same relationship to the rule of law as a guiding force generally. Rather, much of Egypt’s action is guided by concern for the principles of Islam and the unity of the Arab culture.

This creates a different range of options for interpretation in Egypt than it did for Turkey. This is not to suggest that Egypt is not a law-abiding state, nor that international law plays no role in Egypt’s assessment of its position. However, because the appropriate course of action in Egyptian culture is viewed according to a framework other than simply the rule of law as understood in the Western cultures, Egypt’s options for action may be different than those of Turkey, the U.S., or France.

As it happened, in the case of the international legal rule of self-defense and the use of anticipatory intervention, Egypt did not act outside the existing understanding of the relevant international law. In fact, at first glance, it appears the Egyptian decisionmakers simply adopted a traditional interpretation of international law and argued along with France that such anticipatory intervention was not allowed. While they indeed agreed that anticipatory intervention was not allowed in the Iraq case, the justifications for their action indicate that they in fact adopted a hierarchical method of interpretation, and their position had as its source reference to the Islamic-Arab origins of their legal tradition, rather than the civil law attributes.

The Egyptian Interpretation of International Law on the Use of Anticipatory Intervention in Self-defense in the Case of Iraq 2003

In public statements made leading up to the U.S.-led intervention in March 2003, Egypt focused its efforts on preventing any incursion into Islamic territory by Western states. Unlike the focus of Turkey’s dialogue, which centered on the available evidence against Saddam Hussein and what international law called for, the Egyptian dialogue focused rather on the dangers of adopting the U.S. interpretation because it would just create more strife and terrorism, as well as being contrary to recognized principles of international law.136 Moreover, Egypt spent a great deal of time discussing the situation with other Islamic states, attempting to come to some agreement as to the appropriate response to U.S. action. Under Islamic principles, engaging in armed conflict against another Islamic state is strictly forbidden. This is not a principle that can be superseded by human rights or weapons violations, as the unity of the Islamic people is one of the core tenets of the Shari’a. Furthermore, the idea of a non-Islamic entity, such as a U.S.-led coalition, entering and occupying an Islamic state and potentially installing a new government and new laws that might not conform to the principles of Shari’a was unacceptable. At the same time, however, the Egyptian position did not go so far as advocate military action against the U.S., thereby showing the corresponding influence of Egypt’s secular side. Like Turkey, Egypt maintains a mixture of historical influences on its contemporary legal tradition. And while the dominant influence in Turkey is secular and in Egypt is religious, there is still enough of the secular tradition in the Egyptian legal history to create the presumption that an acceptable solution must be arrived at under international law, not outside it, and that law would not allow Egypt to advocate military action against the U.S. any more than it would allow the U.S. to engage in military action against Iraq.

The dominant influence of Islamic principles also guides the role that Egypt’s interests played in their interpretation. In the case of Iraq in 2003 Egypt’s interests were very similar to Turkey’s, and included: preventing loss of reputation in the Arab and Western regions; possible loss of aid from the U.S.; possible loss of economic revenue from trade with Iraq, as well as a decrease in tourism; interest in maintaining relations with countries opposed to the intervention, such as those in Europe with whom Egypt engages in a great deal of trade, and those in the Middle East with whom Egypt shares a desire for pan-Arab unity; and fear of further instability in the Middle East region137.

Any number of power or interest-centered theories could be adapted from these interests, some showing Egypt arguing in favor of intervention, and some showing arguments opposed. In the end, however, while Egypt was definitely opposed to the U.S.’s novel interpretation of international law, Egypt did not expressly make an interpretation against it. Rather, Egypt focused its interpretation on the tenets of Islam and found intervention to be a violation of recognized law. In so doing, none of the justifications provided by Egypt was focused on interests such as those outlined above. Egypt did refer to Arab unity in its commentary regarding opposition to the war, but this was in reference to the Egyptian constitution and the Shari’a as opposed to a desire to cull favor among Arab states. The all-encompassing constitutive influence of the Shari’a makes the above “interest” considerations secondary. The U.S., for example, offered Egypt a number of additional incentive packages in order to gain Egyptian support for its interpretation, none of which worked. At the same time, nowhere was there a report that the U.S. threatened to withdraw existing Egyptian aid for failure to support the U.S. position. The difference is because the Egyptian decision was made in conjunction with the Islamic tenets of its legal tradition.

Thus as we have seen above, , largely overlooked in favor of more traditional domestic characteristics, such as military capability, regime type, or level of economic development, the legal tradition of states is key for understanding the approach a state takes to international law. Perhaps this should come as little surprise, as law is a foundational component of most societies and accordingly, there should be a relationship between the way law is understood within a state and the approach a state takes to law outside its own territory. Interpretation, as well, has much to offer in terms of adding to our understanding of state behavior in the international arena. The interpretation a state makes of an international norm is the first step towards the ultimate course of action a state will adopt. It is at this point when negotiation and compromise are more likely to be achieved, prior to a firm commitment by states on their course of action; a point after which the costs of altering course can be much higher. An understanding of how states arrive at their interpretations of international law can provide a clearer picture of the position a state will take on any given international issue, and understanding the point of view of others can lessen the degree of tension and result in compromise rather than conflict.

Furthermore, using a constructivist framework and constitutive analysis to examine how states arrive at their interpretations of international law provides a more nuanced explanation of the decision-making process than simply rationally calculated interests as reasons for action. There are many influences which contribute to the decisions states make, including history, culture, ideas, and interests. None of these alone can provide a complete explanation for the choices states make. Examining how the historical development of legal tradition has created certain perceptions of the purpose of law and the means available to achieve this purpose, as well as limits on the role to be played by state interests, offers a more complete picture of both how states arrive at their interpretations of international law, and why states arrive at different interpretations of the same principles of international law. Moreover, understanding that interests do indeed matter for the decisions that states make, including decisions about how to interpret international law, but at the same time recognizing that interests are constituted by the same legal tradition that shapes perception of the purpose of law, addresses one of the common critiques of traditional international relations theories and the newer theories of constructivism – that explanations are all one or the other.

 

State Behaviour in the International System P.1

State Behaviour in the International System P.2

State Behaviour in the International System P.4

State Behaviour in the International System P.5

State Behaviour in the International System P.6

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