This Article examines the widely practiced—and widely ignored—phenomenon of “international vote buying” among states, that is, conduct whereby states offer material benefits to other states in exchange for their votes or decisions in international institutions. Domestically, such behavior would be patently illegal as bribery or election fraud. Yet under international law, it is both legal and relatively routine. Should this be so? Is vote buying corruption, or an acceptable feature of international relations? Scant attention has been devoted to these questions; this Article therefore represents a modest attempt to fill that void. Building on insights from the domestic sphere, this Article presents a new normative framework for assessing international vote buying. In so doing, it aims to foster debate about this important and underappreciated phenomenon, as well as to reassess our intuitions about the nature of international decisionmaking.
After numerous false starts, negotiations between the two parties to the decades-old stalemate in Cyprus seem to be moving forward again, this time with the assistance of UN Secretary General Ban Ki-moon. Mr. Ban Ki-moon recently made his first official visit to Cyprus. The island nation has been divided into a Greek-speaking south and a Turkish-speaking north since 1974, when a Greek-led coup sought to annex the island to Greece, prompting a Turkish invasion that claimed the top 37% of the island. The north, which calls itself the Turkish Republic of Northern Cyprus (TRNC), has only been recognized by Turkey, and has lagged behind the impressive economic development of the south, which enjoys broad international recognition and now represents the island in the European Union. UN peacekeepers patrol the unofficial border between the two sides, and the island is heavily militarized. During his visit, Mr. Ban Ki-Moon visited with leaders from both the Turkish and Greek factions.
Previous talks have been derailed by a number of contentious issues; the most serious recent attempt at unification, in 2004, produced an agreement which was subsequently ratified in a referendum by the north but rejected, under the hard-line presidency of Tassos Papadopoulos, by the south. Papadopoulos has since been replaced by the more moderate Demetris Christofias, but the Turkish Cypriot leader, Mehmet Ali Talat, now faces a challenge in upcoming elections from a more hard-line candidate. This has ramped up the pressure for a solution, as has the fact that the ongoing stalemate has dimmed Turkey’s prospects in its own bid for EU accession.
Legal issues relating to the conflict stem originally from the question of whether the 1974 Turkish invasion was justified as a matter of international law. Greek Cypriots argue that the invasion was a clear violation of the UN Charter, which prohibits aggressive war; their argument is supported by the fact that no multilateral body authorized the action. Turkish Cypriots counter that Turkey’s response was justified, as a form of self-defense, by the prospect of the island’s annexation to Greece, and, as a form of humanitarian intervention, by longstanding intercommunal violence directed toward the Turkish-speaking minority. Going forward, both political and legal solutions will be needed to address issues including the division of contested territory, the presence of Turkish forces, reparations for lost property, and power sharing under a proposed federation.
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On January 1st 2010, a Free Trade Agreement (FTA) between China and the Association of Southeast Asian Nations (ASEAN) took effect. The newly formed FTA is the third largest in the world, with a GDP of $6.6 trillion and a population of 1.9 billion. Prior to the agreement in 2008, China was ASEAN’s third-largest trading partner.
Despite the concerns of members like Indonesia over the impact that the agreement will have on domestic industry, ASEAN is confident that China will act cooperatively in order to ensure mutual gains. The State Councilor of the People’s Republic of China, H.E. Dai Bingguo, recently met with the ASEAN Secretariat to discuss China’s commitment to aid in the transition process, confirming China’s position in a speech before more than 300 dignitaries. This was the first time that a high-level Chinese Diplomat visited the ASEAN Secretariat.
Further, as the Secretary General of ASEAN notes, there are mechanisms such as anti-dumping safeguards in the FTA to protect the domestic markets of ASEAN member states.
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On Tuesday, November 10, the navies of North and South Korea exchanged fire in disputed waters off the western coast of the peninsula, damaging ships from both sides and reportedly killing a North Korean sailor. The incident began when a 215-ton North Korean vessel entered South Korean-controlled waters. Ignoring warnings from the South, the ship exchanged fire with two 130-ton South Korean vessels before re-crossing the border, reportedly in flames. The North, which claims the waters where the incident took place, has blamed the South for instigating the confrontation and issued repeated warnings through its state news service.
South Korea’s options in responding to this incident are limited. Seoul’s right to military retaliation is constrained by the ongoing border dispute. The end of the Korean War never produced a peace treaty, and the North and South have technically been observing a truce since 1953. The North has never accepted the current sea boundary, a UN-drawn border called the northern limit line, and its ships regularly stray into waters controlled by the South. In this context, the South cannot make an undisputed claim that its territory was invaded.
South Korea’s options for less direct action are similarly constrained. While the South could initiate economic sanctions and asset-freezing, it believes that such measures could add to the desperate poverty of the North’s citizens and slow the recent détente between the two countries. In a sign that the confrontation has not altered trade relationships, a North Korean freighter was allowed to enter South Korean waters yesterday on its way to Incheon. Meanwhile, any attempt to arbitrate the dispute before an international body would require the consent of one of the most isolationist regimes in the world.
The North has a history of initiating skirmishes in order to escalate pressure before major regional events; the last time the countries clashed was in 2002, while the South was hosting the World Cup. In this case, analysts believe, the North may be trying to send a message to President Obama, who is currently visiting the region and is scheduled to arrive in Seoul on Wednesday. North Korea wants a formal peace treaty to replace the 1953 truce, including reconsideration of disputed territory. It also wants bilateral negotiations with the U.S., which it believes could lead to its acceptance as a nuclear power. President Obama, who has made engagement with “rogue states” a cornerstone of his foreign policy, plans to send special envoy Stephen Bosworth to Pyongyang for talks over ending the North’s nuclear program.
The interim government of Honduras has filed a complaint against Brazil in the International Court of Justice (ICJ), the Court announced on October 29. The complaint arises from events surrounding the surprise return to Honduras of Manuel Zelaya, the deposed president, who entered the country on September 21 and took refuge in the Brazilian Embassy in Tegucigalpa. Specifically, Honduras charges that Mr. Zelaya and an unknown number of other Honduran citizens have been using the Embassy as a “platform for political propaganda” with the complicity of Embassy staff and thereby “threatening the peace and internal public order of Honduras.” Honduras has requested declaratory and injunctive relief from the ICJ.
The legal bases of Honduras’s complaint are Article 2 (7) of the UN Charter, which reserves to member states matters which are “essentially within [their] domestic jurisdiction,” and the 1961 Vienna Convention on Diplomatic Relations. As a practical matter, Honduras’s complaint is only one element of a broader political and diplomatic offensive aimed at preventing Mr. Zelaya from returning to power before the upcoming presidential elections scheduled for November 29. It is unclear whether the ICJ will agree to hear the complaint, which was filed by an interim administration that many international observers consider illegitimate. Current efforts toward national reconciliation may also determine whether the case goes forward.
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The legality of the U.S. Government’s use of unmanned Predator drones to target militants in Afghanistan and Pakistan has recently come under increasing scrutiny, as a prominent U.N. representative called the American refusal to discuss the program “untenable”. Philip Alston, the U.N. Special Rapporteur for Extrajudicial, Summary, or Arbitrary Executions, made his remarks while reiterating requests for the U.S. to provide information on the legal rationale for its use of the drones, the mechanisms it uses to review the program, and the precautions it takes to make sure its air strikes conform with international law.
The debate over the legality of remote-controlled air strikes turns largely on the question of whether the American pursuit of terrorists represents an active armed conflict analogous to a conventional war between nations. As such, the debate over the drones is one example of the broader disagreement which has resulted from the application of international humanitarian law (IHL) to the “war on terror.” IHL, which regulates armed conflict between states, requires the existence of an active conflict, and only applies within the geographic limits of that conflict. Within these limits, IHL authorizes the killing of enemy combatants, including remotely, subject to limitations meant to assure that the use of force is necessary, minimally injurious to civilians, and proportional to expected military gains. Outside a zone of active conflict, however, IHL does not apply, and the U.S. ability to kill individuals without according them due process of law is restrained by a 1976 executive order against assassinations and, arguably, by international human rights law.
While some observers would call Afghanistan a zone of active conflict, far fewer would apply that description to Pakistan, and drones operated by the C.I.A. have been active in targeting militants there, including Taliban leader Baitullah Mehsud, who was killed in August. American drones have also targeted militants in Yemen. In extending IHL to cover these strikes, supporters of the program have argued for the application of IHL wherever terrorists are found, not merely within geographically bounded zones of conflict. This is a novel argument, and as such, the use of Predators to target individuals outside the “war zones” of Afghanistan and Iraq arguably represents a violation of international law. It also represents a sharp departure from pre-9/11 U.S. policy, when C.I.A. drones were limited to conducting surveillance and the U.S. Government criticized Israel for conducting targeted killings of Palestinian militants.
Supporters of the C.I.A. program have argued that, whether or not IHL applies to the air strikes, they are lawful under both the UN Charter and the 2001 Authorization for the Use of Military Force (AUMF) as a form of “anticipatory self-defense.” But opponents point to the principles of sovereign equality and non-intervention in the affairs of other states, arguing that individuals outside active war zones should be brought to justice through domestic processes of law. The question of whether the air strikes are proportional under IHL is also debated; the New Yorker reports that the effort to kill Baitullah Mehsud involved a series of 15 air strikes killing more than 200 other people. Finally, the loosening of geographic restrictions on state-sanctioned lethal force raises the uncomfortable prospect of an amorphous, global definition of conflict, which other states or non-state actors could potentially use to target Americans.
The practical value of the C.I.A. program is also debated. While the use of Predators has been credited with eliminating numerous Al Qaeda leaders and sowing confusion within the organization, it has also led to many civilian casualties, which has rallied anti-American sentiment in the very places where the U.S. is trying hardest to win “hearts and minds.” Another criticism of the program is that electing to kill terrorists rather than capture and interrogate them reduces the intelligence the U.S. can gather on its enemies; proponents of this argument point to the potential information value of Saad bin Laden, one of Osama’s sons, who was killed by a Predator strike in Pakistan. Finally, the recent inclusion of prominent Afghan drug traffickers on the list of acceptable targets has led critics to wonder whether there is any coherent policy limiting the use of the drones to individuals who pose a direct threat to the United States.
Whatever the legal and practical arguments for or against the use of unmanned air strikes against non-state actors, they are unlikely to end in the near future. In the rugged, inaccessible areas where many militants operate, the U.S. Government often believes that it has no good alternatives to the drones. Facing resistance to its plans to increase troop levels in Afghanistan, the Obama administration may make remote-controlled warfare an ever more central part of its counterterrorism strategy.