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![POST-UN WITHDRAWAL – AN ASSESSMENT OF PEACEKEEPING IN CHAD
3
Post-UN Withdrawal: An Assessment of Peacekeeping in Chad
Ray Murphy*
[I]n Darfur, in north-south Sudan, in the Democratic Republic of the Congo
and in Chad, scale and politics multiply the challenges and dilemmas that
peacekeepers face. Across vast terrains and amidst ongoing conflict, the UN is
called upon to protect civilians and provide stability, often without critical
capabilities at hand. The political processes that these missions accompany are
troubled, stalled or simply absent, and in some cases missions operate with
limited consent from key parties on the ground.1
Recent international peacekeeping efforts in Chad and the Central African Republic
(CAR) are a consequence of the long-term unstable situation in both countries and the
region as a whole. The conflict in Darfur has been a destabilising factor and the
combined effect of the overall insecurity has created a humanitarian crisis that
exacerbated tensions among the region’s communities.2
The deployment of parallel
UN and European Union peace operations to Chad and CAR’s borders with Sudan in
2008 was reported to have done little to improve the overall security and humanitarian
situation in both countries.3
The security situation in the eastern part of Chad and
parts of the CAR did not improve significantly during 2010. Despite this, the mission
of the UN peacekeeping force, MINURCAT4
, was revised in early 2010 as a prelude
to withdrawal.5
* Prof. Ray Murphy, Irish Centre for Human Rights, School of Law, NUI Galway, Ireland.
1
UN, A New Partnership Agenda, Charting a New Horizon for UN Peacekeeping (New York, UN Department
of Peacekeeping Operations and Department of Field Support, 2009) iii.
2
See: www.un.org/en/peacekeeping/missions/minurcat/background.shtml. See also L Ploch, Instability in
Chad, CRS Report for Congress, Congressional Research Service 7-5700, 25 January 2010.
3
Center on International Cooperation, Annual Review of Global Peace Operations, 2009 (Boulder, Lynne
Rienner, 2009), 32. See also UN Doc S/2010/409, Report of the Secretary-General on the United Nations Mission
in the Central African Republic and Chad, 30 July 2010.
4
The UN Mission in Central African Republic and Chad (MINURCAT), see
www.un.org/en/peacekeeping/missions/minurcat/
5
S/RES/1923, 25 May 2010.](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-11-2048.jpg)
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UN peacekeeping missions may be established in accordance with Chapter VI or
VII of the UN Charter.6
The two most important characteristics that distinguish
traditional peacekeeping under Chapter VI from the more robust peace enforcement
operations under Chapter VII are the use of force and the issue of host state consent.
The issues of host state consent to a UN military presence raises difficult questions in
the context of internal conflicts or civil wars. There were reservations about UN
involvement in the Congo, Somalia, Lebanon and Kosovo for these very reasons.7
Despite invoking Chapter VII of the UN Charter, the UN/African Union mission
(UNAMID) to Darfur requires the consent and cooperation of the government of
Sudan.8
The situation was similar in respect of MINURCAT.
The past decade has witnessed the prioritizing of the protection of civilians in
statements and resolutions emanating from the Security Council. The Secretary-
General has issued regular reports on the issue9
and the mandates of peacekeeping
operations have included express provisions dealing with civilian protection. This is
expressed usually as being mandated to ‘protect civilians under imminent threat of
physical danger.’10
Any failure to fulfil this role undermines the purpose of the peace
operation and the credibility of the UN as a whole.11
This article examines the
challenges confronting peacekeeping in Chad, in particular with regard to the
6
See B Simma (ed), The Charter of the United Nations: A Commentary, 2nd edn (Oxford, Oxford
University Press, 2002) 648-700; N White, Keeping the Peace, 2nd edn (Manchester, Manchester University
Press, 1997) 207-284; United Nations, The Blue Helmets- A Review of United Nations Peacekeeping 3rd
edn
(New York, United Nations, 1996) 3-9.
7
See generally R Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Legal and Operational Issues in
Practice (Cambridge, Cambridge University Press, 2007).
8
UNSC Res 1769 (31 July 2007) S/Res/1769 (2007), para 15.
9
UNSC resolutions on the protection of civilians include UNSC Res 1267 (15 October 1999) S/RES/1267, UNSC
Res 1296 (19 April 2000) S/RES/1296, UNSC Res S/RES/1674 (28 April 2006), and UNSC Res 1738 (23 December
2006) S/RES/1738. The President of the Security Council has issued statements on the protection of civilians: UNSC
Presidential Statement 6 (2000) UN Doc S/PRST/1999/6; UNSC Presidential Statement 6 (2002) UN Doc
S/PRST/2002/6; UNSC Presidential Statement 41 (2002) UN Doc S/PRST/2002/41; UNSC Presidential Statement 27
(2003) UN Doc S/PRST/2003/27; UNSC Presidential Statement 46 (2004) UN Doc S/PRST/2004/46; UNSC
Presidential Statement 25 (2005) UN Doc S/PRST/2005/25 and UNSC Presidential Statement 1 (2009) UN Doc
S/PRST/2009/1. The Secretary-General has submitted periodic reports on the protection of civilians, on 8 September
1999 (S/1999/957); 31 March 2001 (S/2001/331); 26 November 2002 (S/2002/1300); 28 May 2004 (S/2004/431); 28
November 2005 (S/2005/740), 28 October 2007 (S/2007/643), 29 May 2009 (S/2009/277) and 28 September 2010,
(S/2010/498, on women, peace and security).
10
UN missions where this terminology was adopted include UNAMSIL (where it was expressed for the first time);
MONUC; UNMIL; ONUB; MINUSTAH; UNOCI; UNMIS; UNIFIL; UNAMID; and MINURCAT. The UN Security
Council also used similar language when approving missions approved under lead nations.
11
According to the Brahimi Report, ‘[n]o failure did more to damage the standing and credibility of
United Nations peacekeeping in the 1990s than its failure to distinguish between victim and aggressor.’
UNGA, ‘Report of the Panel on UN Peacekeeping Operations (Brahimi Report)’ (21 August 2000) UN, Doc
A/55/305–S/2000/809, ix.](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-12-2048.jpg)
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how we should live: what is good, what is bad, rather than ‘moral presuppositions’,
namely, what ‘in the practice of life’, govern, at a conscious or unconscious level,
‘what people do’.3
My argument is that European Enlightenment ideas, specifically those of Grotius
and of Smith, can remind us of the ethic that should be at work here. But there is, too,
a moral dimension to my discussion, since I am concerned with the extent to which
governments’ ideas about ‘the right thing to do’ have historically been governed by
Grotian and Smithian thought. To propose an ethic of this kind is thus to uncover
some hidden intellectual roots and to suggest their renewed cultivation. My prompter
is, in part, the need to counter an unrealistic turn in the policy discourse on
international taxation. But it is also the fact that taxation has not until recently got a
high billing in developed country scholarship on global economic justice and
international economic law.4
Enlisting Adam Smith, the eighteenth-century Scottish
moral philosopher, in my project seems appropriate enough. As the foundational
international political economist, Adam Smith has things to say about taxation that
continue to concern us. Most importantly, Smith envisages a world in which light
taxation fosters the accumulation of capital through unrestricted trade, in a ‘natural
system of perfect liberty and justice'.5
Such a world is peopled by industrious human
beings whose sympathetic attitudes towards their fellow men and women6
are not
hampered by archaic social and religious attachments. Yet I contend that Hugo
3
AC Grayling, What is Good? The Search for the Best Way to Live (London, Phoenix, 2003) ix.
4
There is, eg, no detailed discussion of international taxation in S Besson and J Tasioulas (eds), The Philosophy
of International Law (Oxford, Oxford University Press, 2010). But see, eg, D Salter, ‘Taxing Constraints on
Developing Countries and the Global Economic Recession’ in J Faundez and C Tan (eds), International Economic
Law, Globalization and Developing Countries (Cheltenham, Edward Elgar, 2010) 138-157.
5
A Smith, The Wealth of Nations Books IV-V [1776], AS Skinner (ed) (London, Penguin, 1999) 189 (see J
Snape, ‘Montesquieu – “The Lively President” and the English Way of Taxation’ in J Tiley (ed), Studies in the
History of Tax Law: Volume 5 (Oxford, Hart Publishing, 2011) 73-90, 82.
6
A Smith, The Theory of Moral Sentiments [1759/1790], RP Hanley (ed) (London, Penguin 2009) 13-18 (I.I.i).](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-38-2048.jpg)
![TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS
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Grotius, the seventeenth century Dutch natural lawyer, diplomat, theologian and
moral philosopher, rivals Smith in importance. What Grotius provides is the
philosophical context in which Smith’s thoughts are possible. Grotius’ natural law
theory discerns in mankind a:
Desire of Society, that is, a certain Inclination to live with those of his own Kind,
not in any Manner whatever, but peaceably, and in a Community regulated
according to the best of his Understanding; which Disposition the Stoicks termed
Όικείωσιν.7
For Grotius, such a disposition significantly involves a theory of the sacrosanct nature
of contracts. International treaties no less than any other kind of contract,8
are
conducive to a world society of states: pacta sunt servanda.9
The two seminal
thinkers of modernity are tangibly linked by Smith’s own study of, and engagement
with, Grotius’ work.10
As Knud Haakonssen has demonstrated, both Smith and David
Hume (1711-76), pre-eminent among the philosophers of the Scottish Enlightenment,
took Grotius as an important starting-point for their own thought.11
Hume, with his
focus on countering passion with passion,12
was however more sceptical of Grotius’
7
H Grotius, The Rights of War and Peace, 3 vols [1625], R Tuck and J Barbeyrac (eds) and J Morrice (trans)
(Indianapolis, Liberty Fund, 2005) 81 (Preliminary Discourse. VI) (page numbers do not begin afresh in each of
the three vols of this edn, so only page numbers are given in the footnotes below, with Grotius’ own book, chapter
and section numbers).
8
For Grotius on contracts and treaties, ibid, 699-883 (II.11-16), esp 817-18 (II.15.II) (see PS Atiyah, The Rise
and Fall of Freedom of Contract (Clarendon Press, Oxford, 1979) 140-141).
9
See, eg, E Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics
(Cambridge, Cambridge University Press, 2002) 40-41.
10
Smith himself had a Latin 1735 Amsterdam edition of de Jure Belli ac Pacis, not Morrice’s English translation
(H Mizuta (ed), Adam Smith’s Library: A Catalogue (Oxford, Clarendon Press, 2000) 109.
11
K Haakonssen, ‘Hugo Grotius and the History of Political Thought’ (1985) 13 Political Theory 239-265, 247,
251.
12
D Hume, The History of England from the Invasion of Julius Caesar to The Revolution in 1688 [1778], vol 5
(Indianapolis, Liberty Classics, 1985) 101, quoted in AO Hirschman, The Passions and the Interests: Political
Arguments for Capitalism before its Triumph, 20th
anniv edn (Princeton, Princeton University Press, 1997) 47.](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-39-2048.jpg)
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(1897-1960) in 1946 to make Grotian ethics the basis of a theory of international
law.18
Internationalism therefore contrasts with the Hobbesian idea of states being:
‘because of their independency, ... in continual jealousies, and in the state and
posture of gladiators; having their weapons pointing, and their eyes fixed on one
another; that is, their forts, garrisons, and guns upon the frontiers of their
kingdoms; and continual spies upon their neighbours; which is a posture of war’.19
The contrast is not a complete one because even Grotius recognises that states have
particular, potentially conflictual, interests. What he denies is ‘that every Creature is
led by Nature to seek its own private Advantage’.20
There is a complete contrast,
however, between Grotius and ‘the Kantian or universalist tradition,’ which sees at
work in international politics ‘a potential community of mankind’, or at least ‘an
enduring and gradually expanding federation’.21
‘Each nation, [writes Immanuel
Kant] for the sake of its own security, can and ought to demand of the others that they
should enter along with it into a constitution, similar to the civil one, within which the
rights of each could be secured’.22
Although this universalist, Kantian, view is often
referred to as a ‘cosmopolitan’ one, the cosmopolitanism in this article is not Kant’s,
but Smith’s. To the extent that I draw on cosmopolitan ideas, I ground them in the
18
H Lauterpacht, ‘The Grotian Tradition in International Law’ in E Lauterpacht (ed), International Law: Being
the Collected Papers of Hersch Lauterpacht, vol 2 (Cambridge, Cambridge University Press, 1975) 307-365; H
Lauterpacht, The Function of Law in the International Community (Oxford, Clarendon Press, 1933) 422; M
Koskenniemi, ‘Lauterpacht: the Victorian Tradition in International Law’ in The Gentle Civilizer of Nations: The
Rise and Fall of International Law 1870-1960 (Cambridge, Cambridge University Press, 2002) 353-412.
19
T Hobbes, Leviathan (M Oakeshott (ed)) [1651] (Oxford, Basil Blackwell, 1955) 83 (I.13).
20
Grotius, Rights of War and Peace (above n 7) 81 (Preliminary Discourse. VI). See R Tuck, The Rights of War
and Peace: Political Thought and the International Order from Grotius to Kant (Oxford, Oxford University Press,
1999) 135.
21
I Kant, ‘Perpetual Peace: A Philosophical Sketch’ [1795] in HS Reiss (ed) and HB Nisbet (trans), Kant:
Political Writings, 2nd
edn (Cambridge, Cambridge University Press, 1991) 93-130, 105; H Bull, The Anarchical
Society: A Study of Order in World Politics, 3rd
edn (New York, Columbia University Press, 2002) 23 and 310n.
22
Kant (above n 21) 102.](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-42-2048.jpg)
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stoical idea of the philosopher as ‘Citizen of the World’,23
seeking to develop a
broadly-based ethical framework, rooted in a particular view of human nature, and a
realisation of the limited ends of human endeavour. This will involve invoking Fonna
Forman-Barzilai’s idea of Smith’s thought as a ‘commercial cosmopolitanism’.24
The
internationalist and cosmopolitan approach taken in this article therefore draws
elements from both the Grotian tradition and the cosmopolitan thought of Smith.
The main institution of internationalism is ‘public international law’,25
the latter
two words of which were, according to Bull himself,26
first used by Jeremy Bentham
(1748-1832) in 1789.27
Grotius’ expression for one part of what we think of as public
international law is ‘the Law of Nations’ (ius gentium voluntarium), which as the term
suggests is a creation of ‘the Will of all, or at least of many, Nations’.28
The Law of
Nations is not therefore confined to relations between states, but ‘embraces all law ...
which has been sanctioned by the practice of all nations or of many nations’.29
Smith
meanwhile characterises ‘the Laws of Nations’ as ‘the claims which one nation may
have upon another’,30
rather in the manner of Bentham. In Grotius (and perhaps also
in Smith),31
public international law also comprises a non-volitional element: natural
law, or ‘natural right’. Anathema to Bentham,32
natural law in the Grotian system is:
‘the ever-present source for supplementing the voluntary Law of Nations, for
judging its adequacy in the light of ethics and reason, and for making the reader
23
F Forman-Barzilai, Adam Smith and the Circles of Sympathy: Cosmopolitanism and Moral Theory
(Cambridge, Cambridge University Press, 2010) 196.
24
Ibid, ch 6.
25
Bull (above n 14) 52.
26
Bull (above n 21) 34.
27
Ibid.
28
Grotius, Rights of War and Peace (above n 7) 162-163 (I. 1. XIV).
29
Lauterpacht (above n 18) 330.
30
A Smith, Lectures on Jurisprudence [1762-63/1766], RL Meek, DD Raphael and PG Stein (eds) (Indianapolis,
Liberty Fund, 1982) 544.
31
Smith, Theory of Moral Sentiments (above n 6) 179 (III, iii).
32
Bentham describes natural law as ‘an obscure phantom’: J Bentham, An Introduction to the Principles of
Morals and Legislation [1789], JH Burns and HLA Hart (eds) (Clarendon Press, Oxford, 1996) 298.](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-43-2048.jpg)
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B. SHARED CONCERNS AND HISTORICAL SITUATIONS
Having indicated the purpose of the article, and briefly mapped out its parameters, I
want now to confront the obvious, and difficult, question. We are concerned, to put it
baldly, with the question of the ethics, and morals, of tax fairness. Why invoke
Grotius and Smith, early modern thinkers as they are, to illuminate an emanation of a
postmodern, post-colonial, era? Neither of these thinkers could possibly have
envisaged, surely, that matters would have fallen out as they have.
This is the tricky, pressing, question of relevance, and it weaves its way through
each of the subsequent stages of my discussion. My answer is that, absent these
thinkers, we have no historically grounded, and therefore plausible, response to what
is essentially a question born, not of our time, but of theirs: ‘It is always good [as
Karel Wellens writes] to articulate the often unconscious ethical underpinnings of
one’s approach towards international law'.40
Moreover, the need for the integrity of
national tax systems is something that both Grotius and Smith acknowledge, although
for different reasons.41
Either side of this relevance question, to be developed further,
are two other ones. What is it, we may ask, in the nature of the thought of Grotius,
and of Smith, that makes them apposite subjects for consideration? This, if anything,
is a subtly disguised formulation of the background issues of who each of these men
were, and what they had to say about the disciplines of what we now think of as
international political economy and international economic law. Secondly, and more
broadly, we might ask, what is it in the historical situation of each of these figures that
seems so relevant to us, placed as we are in this fractured, anxious, post-modernity?
It is Quentin Skinner, discussing the interpretation of early modern philosophy,
who strikes with elegance what might seem to be a fatal blow. There is, he writes, no
point in asking ourselves what, say, Grotius, or Hobbes, or Kant, or Smith, would
have made of the policy questions of today, since we cannot even approach their
meaning without immersing ourselves in the particular controversies with which they
were engaged Moreover, even having done so, the response that we are likely to get
40
Wellens (above n 17) 5.
41
Smith propounds certain maxims of effective taxation, equality, certainty, convenience and cost-effectiveness
(see Smith (above n 5) 415-18, discussed in J Snape, The Political Economy of Corporation Tax: Theory, Values
and Law Reform (Oxford, Hart Publishing, 2011) 2, 180-81); Grotius endorses Aristotle’s view that the capacity to
impose taxes is central to the very idea of the state itself (see Grotius, Rights of War and Peace (above n 7) 257n).](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-45-2048.jpg)
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will be so bounded by the prejudices of the particular historical thinker, that we shall
probably have to reject it out of a sense of conflict with our own values.42
There is, of
course, some wisdom in this. But there is even more, perhaps, in Martin Wight’s
observations about a searingly predictive passage from the work of one of Grotius’
most distinguished disciples,43
Baron de Montesquieu (1689-1755) on the arms race:
‘[N]o sooner [writes Wight] is one in the posture of recognizing a perennial truth
in Montesquieu’s words, than all one’s progressivist instincts revolt ... [O]ur
protest is born of knowledge and experience and not, like his, of intuition alone;
because our knowledge is greater our strength to break the circle is greater; and to
accept Montesquieu’s words as a description of our own predicament would be
treason to mankind, because it implies the fatalistic doctrine that what has been
will be.’44
We flatter ourselves, in other words, to think we have broken the bonds of
Enlightenment thought. Some might say that such issues as the proper ends of tax
policy have remained stubbornly unaffected either by events or ideas. The question of
fairness in taxation, what Smith himself called ‘equality of taxation’, is largely the
same now as it was when he rationalised it sometime in the early 1760s.45
Others
would say, moreover, that the predicament is identical, since, not only does Smith
advocate proportional taxation, he argues (albeit faintly) for taxes to be
redistributive.46
But these are matters to which I shall return later.
For the present, I would like to concentrate just on the simple assertion that
questions of tax policy are even now formulated, to a very large extent, in precisely
the terms that would have been familiar to an eighteenth century moral philosopher
42
Q Skinner, ‘Meaning and Understanding in the History of Ideas’ (1969) 8 History and Theory 3-53, 42-43;
see, in the context of the relevance of Locke’s thought, P Kelly, Locke’s Second Treatise of Government (London
and New York, Continuum, 2007) 16-18.
43
Snape (above n 5) 79-80.
44
M Wight, ‘Why is there no International Theory?’ in H Butterfield and Wight (eds) (above n 14) 17-34, 27.
45
See Smith, Lectures on Jurisprudence (above n 30) 530-535.
46
Smith, Wealth of Nations (above n 5) 434 (V.II.ii).](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-46-2048.jpg)
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commerce.55
Whilst he did not live to see the Westphalian peace, in 1648,56
Grotius’
consciousness had certainly been shaped by the savagery to which the Thirty Years’
War had given rise:
‘I observed throughout the Christian World a Licentiousness in regard to War,
which even barbarous Nations ought to be ashamed of: a Running to Arms upon
very frivolous or rather no Occasions; which being once taken up, there remained
no longer any Reverence for Right, either Divine or Human, just as if from that
Time Men were authorized and firmly resolved to commit all manner of Crimes
without Restraint.’57
The period of a century or so after about 1550 had also seen the expansion of
European horizons both eastwards and westwards. Grotius sought to supply a natural
law political morality for each of these enterprises.58
In relation to the latter, he
produced his early work, now known as the Free Sea (1609),59
intended to legitimate
the activities of the Dutch East Indies Company with regard to the Spanish, in the
newly-encountered lands across the Atlantic Ocean. In relation to the former, much
later on, and having been a political prisoner, he produced The Rights of War and
Peace (1625),60
still seen as one of the foundational texts of international law. A
massive display of classical and Biblical erudition, the book, published originally in
Latin in Paris, painstaking enumerates those rights, the infringement of which justifies
war,61
and equally importantly those whose infringement does not.
54
J Bodin, On Sovereignty: Four chapters from The Six Books of the Commonwealth [1576], JH Franklin (ed and
trans) [1576] (Cambridge, Cambridge University Press, 1992) 81.
55
Snape (above n 5) 77-78.
56
PH Wilson, Europe’s Tragedy: A History of the Thirty Years War (London, Allen Lane, 2009) 751.
57
Grotius, Rights of War and Peace (above n 7) 106 (Preliminary Discourse. XXIX); E Voegelin, History of
Political Ideas Volume VII: The New Order and Last Orientation, J Gebhardt and TA Hollweck (eds) (Columbia
and London, University of Missouri Press, 1999) 52-54.
58
Tuck (above n 20) ch 3.
59
H Grotius, The Free Sea [1609], D Armitage (ed) and R Hakluyt (trans) (Indianapolis, Liberty Fund, 2004).
60
Grotius (above n 7).
61
Grotius, Rights of War and Peace (above n 7) 393-394 (II.1.V): Lauterpacht (above n 18) 311.](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-48-2048.jpg)
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‘NATURAL RIGHT is the Rule and Dictate of Right Reason, shewing the Moral
Deformity or Moral Necessity there is in any Act, according to its Suitableness or
Unsuitableness to a reasonable Nature, and consequently, that such an Act is either
forbid or commanded by GOD, the Author of Nature.’
This last sentence emphasises, as John Finnis writes, that Grotius’ work does not,
contrary to Lauterpacht,69
mark a secularising of natural law. God’s decree as to what
is right still enjoins that ‘the right be done (as a matter of obligation) and that the
wrong be avoided (likewise)’.70
Such would be so, says Grotius in a rhetorical
flourish, ‘though we should even grant, what without the greatest Wickedness cannot
be granted, that there is no God, or that he takes no Care of human Affairs’.71
So
conceived, natural law, or natural right, is a series of ‘norms’: what international law
would require, were right reason properly deployed. If this is correct, Hume’s famous
criticism of the fallacies of natural law72
loses much of its force. To reason in this way
is to reason prudentially, ‘to discern things pleasant or hurtful’ and to understand what
is ‘contrary to Natural Right, that is, the Laws of our Nature’.73
Grotius, obviously,
has nothing directly to say about the kind of taxation policy with which we are
concerned. He does, however, establish the framework of a discourse that seems to us
now so obvious that it is deeply embodied in the assumptions of any discussion we
may have on contemporary tax policy issues. That is why, although our own
textbooks on international political economy often begin with Smith,74
Grotius is
rarely - if ever - mentioned.
Neither Smith, nor Grotius, quite thinks therefore in accordance with the scholastic
tradition, and, to the extent that we, too, may struggle to apply that tradition directly
to our public policy debates, neither do we. Such an assertion is enough to carry with
69
Lauterpacht (above n 18) 333.
70
Finnis (above n 64) 44.
71
Grotius, Rights of War and Peace (above n 7) 89 (Preliminary Discourse. XI).
72
D Hume, A Treatise of Human Nature [1740], LA Selby-Bigge and PH Nidditch (eds), 2nd
edn, 469—470
(III.1.i).
73
Grotius, Rights of War and Peace (above n 7), 87 (Preliminary Discourse. IX).
74
Watson (n 38 above).](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-50-2048.jpg)
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it the idea that there may be something in our circumstances that unites the
preoccupations of us, in our time, and the early moderns, in theirs. Before moving on,
so as to locate legal scholarship on international taxation within this discussion, I
would like briefly to elaborate on this point, since it provides a rich cultural context
for the final part of the article. Hugo Grotius, as I have already suggested, was, first
and foremost, a natural lawyer. The Free Sea was a response to a specific commercial
commission, and The Rights of War and Peace was the fruit of a period of
incarceration due to Grotius’ involvement with the deposed Grand Pensionary of
Holland, Johan van Oldenbarnevelt, executed by the sword in 1619.75
Smith, too,
though long thought of as an economist, has increasingly been conceived of as a
moral, or even a political, philosopher initially through the historical work of Donald
Winch,76
and latterly through that of Amartya Sen, who places Smith’s ‘theory of
moral sentiments’ at the heart of his own political philosophy.77
The Wealth of
Nations, of 1776,78
especially when read with the 1759 The Theory of Moral
Sentiments,79
Smith’s much earlier work of moral philosophy, provides an
understanding, not just of economic activity and of the personal morality that guides
it, but of the basis of prosperous political societies. It does so on the basis of a very
similar natural law view of ethics,80
wedded to what Smith believes is a ‘natural
[human] inclination’ to ‘beneficence’.81
I shall return to these points of comparison
between Grotius and Smith. For the present, though, I would simply like to highlight
that each work is the product of a need to find a philosophy for commercial political
societies. The impulse to trade, says Grotius, cannot and should not be restrained:
75
Tuck (above n 20) 94-95.
76
See, eg, D Winch, Riches and Poverty: An intellectual history of political economy in Britain, 1750-1834
(Cambridge, Cambridge University Press, 1996) esp ch 4.
77
A Sen, The Idea of Justice (London, Allen Lane, 2009).
78
Smith, Wealth of Nations (above n 5)
79
Smith, Theory of Moral Sentiments (above n 6).
80
G Myrdal, The Political Element in the Development of Economic Theory, P Streeten (trans) (London,
Routledge and Kegan Paul, 1953) ch 7.
81
DD Raphael, The Impartial Spectator: Adam Smith’s Moral Philosophy (Oxford, Clarendon Press, 2007) 76,
referring to Smith, Theory of Moral Sentiments (above n 6) 268-276 (VI.II.iii).](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-51-2048.jpg)
![THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10
44
‘[I]t is lawful [he says] for any nation to go to any other and to trade with it ... This
right ... equally appertaineth to all nations, which the most famous lawyers enlarge
so far that they deny any commonwealth or prince to be able wholly to forbid
others to come unto their subjects and trade with them.’ 82
Smith, no less than Grotius, regards as axiomatic the idea of economic relations as the
catalyst of international political order. He characterised The Wealth of Nations as an
‘... attack ... upon the whole [mercantilist] commercial system of Great Britain’.83
The
Dutch republic of the seventeenth century was perhaps the first commercial society of
modernity, the earliest in which we see the prototypes of commercial phenomena
familiar to us today. There we find ‘the embarrassment of riches’ described so vividly
by Simon Schama: a wealthy merchant class, with the ease and funds to commission,
buy and enjoy the works of Rembrandt and, rather later, of Vermeer; vast inequalities
between rich and poor (sometimes disconcertingly and ambiguously depicted in the
same paintings);84
and the nascent idea of secondary commodities markets, such as
the existence, so Anna Pavord tells us, of a market - in seventeenth century
Amsterdam - in tulip futures.85
A visitor to present-day Amsterdam can still
experience a city vibrant with this practical ethos of commerciality.
As with Grotius, so too with Smith, who belonged to a generation of Scottish
intellectuals anxious to map out a future for Scotland, not as the backward, violent,
feudal, society immortalised subsequently in the novels of Sir Walter Scott, and
which had received its terrible quietus at the Battle of Culloden in 1745, but as a
commercial and polite society aligned with the commercial and industrialising
England south of the border.86
The cultures that produced the political philosophies
82
Grotius, The Free Sea (above n 59) 10, 11; Grotius, Rights of War and Peace (above n 7) 444 (II.2.XIII).
83
Smith to Andreas Holt, Danish Trade Commissioner (October 26, 1780) in The Correspondence of Adam
Smith, EC Mossner and IS Ross (eds), 2nd
edn (Indianapolis, Liberty Fund, 1987) 251.
84
S Schama, The Embarrassment of Riches: An Interpretation of Dutch Culture in the Golden Age (London,
William Collins, 1987) 573.
85
A Pavord, The Tulip (London, Bloomsbury Publishing, 1999) ch 4.
86
I Hont and M Ignatieff, ‘Needs and justice in the Wealth of Nations: an introductory essay’, in Wealth and
Virtue: The Shaping of Political Economy in the Scottish Enlightenment, I Hont and M Ignatieff (eds) (Cambridge,
Cambridge University Press, 1983) 1.](https://image.slidesharecdn.com/25333405-250509171048-34207102/75/The-Irish-Yearbook-Of-International-Law-Volume-45-200910-Fiona-De-Londras-Siobhn-Mullally-Editors-52-2048.jpg)
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- 5. EDITORIAL BOARD Members ofthe Advisory Board Lord Lester of Herne Hill QC Professor Conor Gearty, London School of Economics and Political Science Professor Gráinne de Búrca, New York University Judge Teresa Doherty, Special Court for Sierra Leone Ms Patricia O’Brien, Under-Secretary for Legal Affairs and UN Legal Counsel Editors-in-Chief Dr Fiona de Londras, University College Dublin Professor Siobhán Mullally, University College Cork Editorial Board Dr Jean Allain, Queens University Belfast Professor Christine Bell, University of Edinburgh Professor Christine Chinkin, London School of Economics Professor Imelda Maher, University College Dublin Professor Michael O’Flaherty, University of Nottingham and Northern Irish Human Rights Commission Professor Gerard Quinn, National University of Ireland, Galway Professor William Schabas, National University of Ireland, Galway and Middlesex University Correspondents Dr Alan Brady: Irish Practice in International Law Dr Ronán Long: Irish Practice on the Law of the Sea Mr Stephen Coutts: Ireland and the European Union Dr Darren O’Donovan: Human Rights in Ireland Prof. Brice Dickson: Human Rights in Northern Ireland Book Reviews Editor Dr Fiona de Londras, University College Dublin
- 7. EDITORIAL xiii EDITORIAL Irish Yearbook ofInternational Law 2009 and 2010 Fiona de Londras and Siobhán Mullally The publication of this double issue of the Irish Yearbook of International Law once more provides a location for the publication of peer reviewed work on international law, whether public or private, together with documents and reports on Irish state practice in international law. Yearbooks of international law play an important role in analysing state practice and opinio juris and it is fitting that Ireland, having played an active role in the progressive development of international law and of international institutions, should have a dedicated Yearbook of its own. The years under consideration in this volume - 2009 and 2010 - were dominated in both domestic and international legal discourse by the financial crisis and the seismic shock that it delivered to international institutions, both formal (the IMF, European Union and so on) and informal (markets, ratings agencies). The correspondent report on Ireland and the European Union included in this volume outlines the agreement entered into between Ireland the ‘Troika’ of the European Union, European Central Bank and International Monetary Fund in 2010. The agreement itself is included in the Documents section of this volume, given its significant implications for the implementation of international norms in Ireland (either through legislation or through the cultivation of strong domestic institutions including human rights institutions), and for Ireland’s capacity to fulfil its international obligations. As noted in the correspondent report on Irish state practice in international law in this volume, the net amount of Ireland’s foreign aid budget was reduced in 2009 and 2010 due to budgetary shortfalls, although Irish Aid funding remained at 0.52% of GDP and was praised by the OECD. In addition, Ireland made numerous ad hoc contributions in situations of extreme humanitarian exigency. As outlined in the speech from the then Minister for State for Overseas Development, Peter Power, which is included in the Documents section of this issue, Ireland remains committed
- 8. EDITORIAL xiv to the fulfilmentof the Millennium Development Goals, despite the global financial crisis and the imposition of a series of austerity measures at domestic level. Ireland’s long-standing commitment to engaging in peace operations validated through the triple lock of Cabinet, Dáil and UN sanction, remained in evidence during 2009 and 2010. During this time, Irish forces served in a variety of peacekeeping and peace-making operations, particularly notable among which was the leading role played by Ireland in the peace operations in Chad, reviewed and analysed by Murphy in this volume. Irish involvement in Chad came to an end because of the lack of a renewed mandate from the United Nations, given rise to significant challenges both for the UN and for Irish involvement in the operation. During the period under review Irish troops also withdrew from Kosovo where Ireland had a long-standing presence under the NATO/Partnership for Peace KFOR mission. Withdrawal from Kosovo came about primarily as a result of economic and political considerations at both domestic and international levels, and reflects a significant transition in the governance of Kosovo and its international status. During 2009 and 2010, Ireland’s commitment to acting through multilateral decision-making and international institutions was reinforced through the state’s expression of support for the reform and consolidation of the United Nations, continuing support for responses to humanitarian crises through UN and EU involvement, and for the further progressive development of the Responsibility to Protect doctrine in international law. These core elements of contemporary Irish practice in international law were communicated by the then Minister for Foreign Affairs, Mr Micheál Martin T.D., in his address to the opening session of the 65th General Assembly of the United Nations. Ireland’s commitment to more discrete international institutions was also reinforced by the state’s involvement in major international conferences to strengthen and secure the future of the European Court of Human Rights (the Interlaken conference) and the International Criminal Court (the Kampala meeting). As in previous years, Ireland continued to play a prominent role in the practice and development of international law of the sea in 2009 and 2010. 2010 marked significant progress in the implementation of the Good Friday agreement and in post-conflict reconstruction in Northern Ireland. The process of devolution in Northern Ireland was essentially completed when responsibility for criminal justice and policing was devolved to Stormont. Although the formal process
- 9. EDITORIAL xv of devolved governmenthas now stabilised in Northern Ireland (particularly as the Northern Assembly went on to complete its first full term in 2011), the broader process of building peace continues. In Dickson’s correspondent report on Human Rights in Northern Ireland in this volume, the continuing high rate of criminal violence experienced in Northern Ireland, together with ongoing difficulties in securing the safety of journalists and effectively ‘Dealing with the Past’, are highlighted. Together with the Correspondents’ Reports and Documents sections, this volume of the Yearbook features article-length contributions that variously address specifically Irish questions relating to international law, broader theoretical and practical considerations in international law, and document important but under- explored elements of Ireland’s contribution to the development of international norms. Ireland has a long tradition of engagement with and leadership in international law. This tradition comprises not only state practice, but also the emergence from this island of important figures whose scholarship, activism and other work have made significant contributions to international development. Two such figures sadly passed away in the period under consideration in this issue: Dr. Patrick Rice and Prof. Kevin Boyle. Both made significant contributions to international human rights standard setting and practice, particularly in the areas of forced disappearances and religious freedom. Dr Rice’s activism and unstinting advocacy in the field of post-conflict justice continues to be recognised in the ongoing work relating to the implementation and development of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, signed by Ireland on 29 March 2007, but not yet ratified. A fitting tribute to Dr Rice’s legacy would be the ratification and full implementation of the Convention by the Irish Government without further delay. Professor Kevin Boyle’s significant contribution to the field of human rights law included establishing the Irish Centre for Human Rights at NUI Galway and pioneering research, teaching and strategic litigation before the European Court of Human Rights, at the Human Rights Centre, University of Essex. Both have left a significant legacy for Ireland’s community of international lawyers.
- 10. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10
- 11. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 3 Post-UN Withdrawal: An Assessment of Peacekeeping in Chad Ray Murphy* [I]n Darfur, in north-south Sudan, in the Democratic Republic of the Congo and in Chad, scale and politics multiply the challenges and dilemmas that peacekeepers face. Across vast terrains and amidst ongoing conflict, the UN is called upon to protect civilians and provide stability, often without critical capabilities at hand. The political processes that these missions accompany are troubled, stalled or simply absent, and in some cases missions operate with limited consent from key parties on the ground.1 Recent international peacekeeping efforts in Chad and the Central African Republic (CAR) are a consequence of the long-term unstable situation in both countries and the region as a whole. The conflict in Darfur has been a destabilising factor and the combined effect of the overall insecurity has created a humanitarian crisis that exacerbated tensions among the region’s communities.2 The deployment of parallel UN and European Union peace operations to Chad and CAR’s borders with Sudan in 2008 was reported to have done little to improve the overall security and humanitarian situation in both countries.3 The security situation in the eastern part of Chad and parts of the CAR did not improve significantly during 2010. Despite this, the mission of the UN peacekeeping force, MINURCAT4 , was revised in early 2010 as a prelude to withdrawal.5 * Prof. Ray Murphy, Irish Centre for Human Rights, School of Law, NUI Galway, Ireland. 1 UN, A New Partnership Agenda, Charting a New Horizon for UN Peacekeeping (New York, UN Department of Peacekeeping Operations and Department of Field Support, 2009) iii. 2 See: www.un.org/en/peacekeeping/missions/minurcat/background.shtml. See also L Ploch, Instability in Chad, CRS Report for Congress, Congressional Research Service 7-5700, 25 January 2010. 3 Center on International Cooperation, Annual Review of Global Peace Operations, 2009 (Boulder, Lynne Rienner, 2009), 32. See also UN Doc S/2010/409, Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, 30 July 2010. 4 The UN Mission in Central African Republic and Chad (MINURCAT), see www.un.org/en/peacekeeping/missions/minurcat/ 5 S/RES/1923, 25 May 2010.
- 12. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 4 UN peacekeeping missions may be established in accordance with Chapter VI or VII of the UN Charter.6 The two most important characteristics that distinguish traditional peacekeeping under Chapter VI from the more robust peace enforcement operations under Chapter VII are the use of force and the issue of host state consent. The issues of host state consent to a UN military presence raises difficult questions in the context of internal conflicts or civil wars. There were reservations about UN involvement in the Congo, Somalia, Lebanon and Kosovo for these very reasons.7 Despite invoking Chapter VII of the UN Charter, the UN/African Union mission (UNAMID) to Darfur requires the consent and cooperation of the government of Sudan.8 The situation was similar in respect of MINURCAT. The past decade has witnessed the prioritizing of the protection of civilians in statements and resolutions emanating from the Security Council. The Secretary- General has issued regular reports on the issue9 and the mandates of peacekeeping operations have included express provisions dealing with civilian protection. This is expressed usually as being mandated to ‘protect civilians under imminent threat of physical danger.’10 Any failure to fulfil this role undermines the purpose of the peace operation and the credibility of the UN as a whole.11 This article examines the challenges confronting peacekeeping in Chad, in particular with regard to the 6 See B Simma (ed), The Charter of the United Nations: A Commentary, 2nd edn (Oxford, Oxford University Press, 2002) 648-700; N White, Keeping the Peace, 2nd edn (Manchester, Manchester University Press, 1997) 207-284; United Nations, The Blue Helmets- A Review of United Nations Peacekeeping 3rd edn (New York, United Nations, 1996) 3-9. 7 See generally R Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Legal and Operational Issues in Practice (Cambridge, Cambridge University Press, 2007). 8 UNSC Res 1769 (31 July 2007) S/Res/1769 (2007), para 15. 9 UNSC resolutions on the protection of civilians include UNSC Res 1267 (15 October 1999) S/RES/1267, UNSC Res 1296 (19 April 2000) S/RES/1296, UNSC Res S/RES/1674 (28 April 2006), and UNSC Res 1738 (23 December 2006) S/RES/1738. The President of the Security Council has issued statements on the protection of civilians: UNSC Presidential Statement 6 (2000) UN Doc S/PRST/1999/6; UNSC Presidential Statement 6 (2002) UN Doc S/PRST/2002/6; UNSC Presidential Statement 41 (2002) UN Doc S/PRST/2002/41; UNSC Presidential Statement 27 (2003) UN Doc S/PRST/2003/27; UNSC Presidential Statement 46 (2004) UN Doc S/PRST/2004/46; UNSC Presidential Statement 25 (2005) UN Doc S/PRST/2005/25 and UNSC Presidential Statement 1 (2009) UN Doc S/PRST/2009/1. The Secretary-General has submitted periodic reports on the protection of civilians, on 8 September 1999 (S/1999/957); 31 March 2001 (S/2001/331); 26 November 2002 (S/2002/1300); 28 May 2004 (S/2004/431); 28 November 2005 (S/2005/740), 28 October 2007 (S/2007/643), 29 May 2009 (S/2009/277) and 28 September 2010, (S/2010/498, on women, peace and security). 10 UN missions where this terminology was adopted include UNAMSIL (where it was expressed for the first time); MONUC; UNMIL; ONUB; MINUSTAH; UNOCI; UNMIS; UNIFIL; UNAMID; and MINURCAT. The UN Security Council also used similar language when approving missions approved under lead nations. 11 According to the Brahimi Report, ‘[n]o failure did more to damage the standing and credibility of United Nations peacekeeping in the 1990s than its failure to distinguish between victim and aggressor.’ UNGA, ‘Report of the Panel on UN Peacekeeping Operations (Brahimi Report)’ (21 August 2000) UN, Doc A/55/305–S/2000/809, ix.
- 13. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 5 protection of civilians, and the lessons to be learned from recent and past peace operations. It asks if the withdrawal of MINURCAT rendered refugees, internally displaced persons and humanitarian agencies on the ground more vulnerable. How will the UN ensure the security of these vulnerable groups in the aftermath of the withdrawal of its military component? In early 2010, the government of Chad informed the UN that they wanted the military component of MINURCAT reduced and that Chad was ready to assume responsibility for the protection of civilians pending a complete withdrawal of the peacekeeping mission by the end of 2010.12 However, according to the UN High Commissioner for Refugees, the humanitarian situation in Chad was expected to remain precarious.13 The security situation in eastern Chad continued to be ‘unpredictable’, while the situation in the MINURCAT area of operations in north eastern CAR were said to be ‘volatile.’14 The security and protection of the civilian population was a central element in this mission from the start. 15 In September 2007, UN Security Council Resolution 1778 approved the establishment of a multidimensional presence intended to create conditions that would facilitate a return of refugees and displaced persons.16 A European Union force (EUFOR) was authorized ‘to take all necessary measures, within its capabilities and its area of operations’ to contribute to protecting civilians in danger.17 The UN Security Council also reaffirmed the obligation of all parties to implement fully the rules and principles of international humanitarian law.18 Later, UN Security Council Resolution 1861 provided for the withdrawal of EUFOR and the creation of a military component of MINURCAT that would take over from EUFOR. It also provided for the security and protection of civilians, and decided that 12 Ibid, at 2 and UN News Centre, ‘Chad and UN officials agree on major downsizing in peacekeeping force,’ 23 April 2010 and ‘Security Council consults on cutting UN military force to Chad,’ 7 May 2010 13 See www.unhcr.org/cgi-bin/texis/vtx/page?page=49e45c226. There are an estimated quarter of a million refugees from Sudan, over 60,000 from the Central African Republic and a further 68,000 displaced Chadians living in eastern Chad, UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and in Chad (MINURCAT)’ (2010) UN Doc S/2010/217. 14 See also UN Doc S/2010/409, UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/409, paras 2 and 5. 15 On the question of protection of civilians and vulnerable groups generally, see V Holt, G Taylor and M Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations Successes, Setbacks and Remaining Challenges: Independent Study jointly Commissioned by the Department of Peacekeeping Operations and the Office for the Coordination of Humanitarian Affairs (New York, United Nations, 2009). 16 UNSC Res 1778 ( 25 September 2007) S/RES/1778, para 1. 17 Ibid, para 6. 18 Ibid, para 17.
- 14. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 6 MINURCAT should be authorized to take all necessary measures within its capabilities and area of operations to fulfil this role.19 In 2010, the government of Chad called for the withdrawal of MINURCAT. After negotiations, the UN Security Council adopted resolution 1923 extending the mandate until 31 December 2010 when the mission ended.20 In this way, the Chadian authorities assumed full responsibility for the security and protection of the civilian population in eastern Chad from May 2010. Amnesty International expressed concern about the uncertain security situation that the reduced strength of MINURCAT would create.21 It cited the heightened risks for organisations delivering humanitarian aid into some areas and increased the risk of children being abducted and recruited as child soldiers. It was also critical of the UN Security Council resolution which transferred responsibility for the protection of civilians in Eastern Chad to the Chadian authorities.22 The resolution outlined the phased withdrawal of MINURCAT from 15 July, with full withdrawal starting in mid-October and scheduled to be completed by the end of 2010. It was planned that MINURCAT would have the capacity to protect civilians until October, but only if they are under imminent threat of violence and this was happening in the immediate vicinity of MINURCAT's bases.23 Amnesty International was deeply concerned about the Security Council compromise that would see the force reduced to 1,900 troops and pass responsibility for protecting refugees to the Chadian Government despite the inability of the Chadians authorities to adequately protect the many thousands of vulnerable people in the region.24 19 UNSC Res 1861 (14 January 2009) S/RES/1861, paras 3 and 6. 20 UNSC Res 1923 (25 May 2010) S/RES/1923, para 1. www.un.org/en/peacekeeping/missions/minurcat/ 21 ‘UN hands protection of civilians over to Chad’, Amnesty International Press Release, 31 May 2010 and ‘UN pullout puts achievement of Irish troops in Chad at risk’, Press Release, 10 May 2010. 22 Ibid and UNSC Res 1923 (25 May 2010) S/RES/1923, paras 10 and 11. 23 Ibid, at , para 10. 24 Ibid, see also, Amnesty International, No Place for Us Here – Violence Against Refugee Women in Eastern Chad (London, Amnesty International Publications, 2009) available at http://reliefweb.int/sites/reliefweb.int/files/resources/02EC0A96B39EF37B49257641000BC49D-Full_Report.pdf. See also Amnesty International, Chad: ‘We too deserve protection’ – Human Rights challenges as UN mission withdraws (London, Amnesty International, 2010) available at http://www.amnesty.org/en/library/asset/AFR20/009/2010/en/ec05e3c9-67f9-4a0e-8338- e8d405b0e36e/afr200092010en.pdf.
- 15. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 7 A. BACKGROUND AND KEY CHALLENGES A fundamental underlying problem was finding a comprehensive solution to the conflict in eastern Chad, which would allow a sustained return of internally displaced persons (IDPs) and refugees.25 Such a solution depends on the management of local conflicts between ethnic groups, improved relations between Sudan and Chad and improved security in Darfur. However, MINURCAT did not have a mandate to address the underlying political issues that precipitated the crisis. The absence of any comprehensive regional policy to deal with the inter-linked causes of instability in the Horn of Africa and surrounding region is the most significant impediment to achieving a sustainable solution to the situation in Chad. The violence in Chad has its origins in the misrule, corruption, ethnic divisions, culture of impunity and disparities in levels of development from one region to another. It is characterized by clashes between government forces and rebel groups, combined with shifting alliances.26 The conflict in eastern Chad has the capacity to destabilise the whole country and region.27 However, the biggest threat to the civilian population, including refugees and displaced persons, is the widespread banditry and general lack of law and order.28 In August 2006, the regional implications of the conflict in Chad were acknowledged when the UN Security Council recognized the need to create a ‘multidimensional presence consisting of political, humanitarian, military and civilian police liaison officers in key locations in eastern Chad, including in internally displaced persons and refugee camps.’29 25 See Internal Displacement Monitoring Centre, National Outrage – Violence against Internally Displaced Women and Girls in Eastern Chad (Geneva, Norwegian Refugee Council, 2010). 26 Annual Review of Global Peace Operations, 2010, above n 3, at) 35. Internal Displacement Monitoring Centre, Internally Displaced in Chad: Trapped Between Civil Conflict and Sudan’s Darfur Crisis (Geneva, 11 July 2007). See generally JD Fage, A History of Africa, 3 rd edn (London, Routledge, 1995); M Meredith, The State of Africa: A History of Fifty Years of Independence (London, Free Press, 2006); J Tubiana, The Chad–Sudan Proxy War and the ‘Darfurization’ of Chad: Myths and Reality (Geneva, Graduate Institute of International Studies, 2008). 27 International Crisis Group, Chad: Powder Keg in the East, African Report No 149 – 15 April 2009 (New York, 2009) and P Berg, The Dynamics of Conflict in the Tri-Border of Sudan, Chad and the Central African Republic (Berlin, Friedrich Ebert Foundation, 2008). 28 Interviews by author during May 2010 with Irish Defence Forces personnel returned from duty with MINURCAT. See also UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/409, paras 2-5. 29 UNSC Res 1706 (31 August 2006) UN Doc S/RES/1706, para 9(d).
- 16. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 8 It took a further year before the Security Council adopted Resolution 1778 authorizing the establishment of a multidimensional force to be deployed in eastern Chad and neighbouring CAR.30 The UN mission, MINURCAT, would operate for an initial period of twelve months alongside a European Union military force, EUFOR, which would protect civilians in danger, facilitate the delivery of humanitarian aid and protect UN agencies.31 Even in the planning stages, it was evident that the EUFOR exit strategy was predicated on a handover to the UN after twelve months.32 Unfortunately, this did not seem to impact on those responsible for planning the UN military component. The UN wanted EUFOR to remain and tried to create the scenario where it might do so. It took the UN Security Council until January 2009 to adopt Resolution 186133 approving the deployment of a UN military component to follow up EUFOR. As this was a mere two months from the date for the transfer of authority, the time frame was too short for force generation and related issues. Following its initial deployment, MINURCAT’s military component struggled to achieve full operational capability.34 On 15 April 2010, the border between Chad and Sudan reopened after seven years. The two countries agreed on 5 February 2010 to deploy some 3,000 troops in a Joint Border Force along the frontier to end cross- border rebel attacks from both sides.35 France has close relations with the Chadian government of Idress Déby and it took the lead in the Security Council on Chad-related issues. Other members of the Council were cautious about any change in the mandate that might lead to deterioration in the overall security situation.36 The government of Chad indicated that it wanted an end to the military component of the mission.37 It argued that the force had served its 30 See http://www.un.org/en/peacekeeping/missions/minurcat/ 31 UNSC Res 1778 (25 September 2007) S/RES/1778. 32 EUFOR, Operation EUFOR Tchad/RCA, Mid Mandate Review, Report of the Operation Commander, 7 July 2008. Reference #1028 EU – OHQ, 2007 and UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ , (2008) UN Doc S/2008/601). 33 UNSC Res 1861 (14 January 2009) S/RES/1861, para 4. 34 UN Security Council Report Chad/CAR, May 2010 accessed at www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.5968921/k.8C00/May_2010brChadCAR.htm 35 Ibid. See also UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ UN Doc S/2010/409, para 23. 36 UN Security Council Report Chad/CAR, May 2010 accessed at www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.5968921/k.8C00/May_2010brChadCAR.htm 37 UN News Centre, ‘Chad and UN officials agree on major downsizing in peacekeeping force,’ 23 April 2010 and ‘Security Council consults on cutting UN military force to Chad’, 7 May 2010.
- 17. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 9 purpose and that it had been a failure.38 In addition, Chad concluded new agreements on border security with neighbouring Sudan and it claimed that MINURCAT did not possess sufficient strength to provide complete security in eastern Chad. In the changed circumstances, it was better for Chadian forces to take over and for the mission's mandate to be adjusted accordingly.39 This self-serving analysis by the Chadian government reflected a changed security environment. The question is whether the decision to ‘downsize’ the military component as a prelude to withdrawal was justified? Does the UN have any choice when a government withdraws its consent? An orderly handover and transition from MINURCAT to Chadian authorities was essential. What was the plan for the handover and did the Chadian government provide any plan for the security of displaced persons and refugees? A High Level Panel and Joint Technical Working Group of UN officials and Chadian security forces were established.40 If the Chadian security forces could be relied upon, it made sense to transfer responsibility for the security of vulnerable groups to them. However, it was by no means clear that Chad had the capacity or commitment for such a role. Even the veiled language of the Secretary-General’s report refers to the involvement of Chadian security forces and officials in criminal activities, including kidnapping and carjacking.41 In the circumstances it is reasonable to ask what hope there is that these forces will protect civilians. The Chad mission was regarded by many Irish personnel who served there as the most physically challenging mission Ireland has participated in to date. The security challenges were compounded by significant logistical issues. Getting enough water, food and fuel were major challenges to the day to day operations of the force. Could the UN have done more to sustain the military component, or was the time ripe for withdrawal? The UN and European Union peacekeeping efforts in Chad/CAR are not the first time a peacekeeping mission has been established there. Earlier efforts by the then Organisation for African Unity (OAU) were unsuccessful but the lessons of the past remain relevant today. 38 J Karlsrud and R Solhjell, An Honourable Exit for MINURCAT (Oslo, Norwegian Institute of International Affairs, 2010) 1. 39 Security Council Report, Chad/CAR, May 2010 available at <http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.5968921/k.8C00/May_2010brChadCAR.htm>. 40 UN Secretary General Report, above note 35, at paras 25-27. 41 Ibid, at para 28.
- 18. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 10 B. EARLY OAU’S INTERVENTION AND DEPLOYMENT OF PEACEKEEPERS The security situation in Chad is characteristic of the overall level of political instability in that region of Africa. Although Chad became independent in 1960, the situation has remained volatile and unpredictable.42 Similar to conflict zones elsewhere on the continent of Africa, the roots of the conflict can be traced to its colonial past under French control.43 However, ethnic conflict predated colonialism and was exacerbated by socio-economic and political marginalisation of peripheral regions.44 Chad, like its neighbour Sudan, is divided between a deeply ‘African’ south and an Arab-influenced north. The underpinning of the conflict is similar to that of neighbouring Sudan and is evidence of their common historical context. In 1979 a peace accord led to the deployment of a Nigerian peacekeeping force. The challenges confronting the Nigerian military presence was a precursor to what the OAU’s subsequent peacekeeping force experienced. It seemed that none of the parties to the conflict, and the Nigerians themselves, understood fully the role of peacekeepers. In particular, the factions failed to appreciate the constraints of peacekeeping and the implications of adopting a neutral role. 45 This was exacerbated by ambiguity surrounding the mandate and the issue of consent to the presence of foreign forces in Chad. The issue of host state consent was always likely to prove problematic in a civil war situation. Unsurprisingly, the peacekeepers became embroiled in the conflict and came to be perceived as part of the problem.46 Over time 42 S Amoo, Frustrations of Regional Peacekeeping: The OAU in Chad 1977-82 (Atlanta, The Carter Center, 2004). 43 V Thompson and R Adloff, Conflict in Chad (Berkeley, University of California, 1981) 3-5, 11 and 21-22 and S Decalo, ‘Regionalism, Political Decay and Civil Strife in Chad’ (1980) 18 (1) The Journal of Modern African Studies 25. 44 B Neuberger, Involvement, Invasion and Withdrawal: Ghadafi's Libya and Chad 1969-1981: Occasional Paper No 83 (TelAviv: Shiloah Center for Middle Eastern and African Studies, 1982) 12. G Prunier, ‘Chad, the CAR and Darfur: Dynamics of Conflict.’ OpenDemocracy, 17 April 2007. Available at: www.opendemocracy.net/democracy-africa_democracy/chad_conflict_4538.jsp and ‘Chad’s tragedy’, OpenDemocracy, 7 September 2007; www.opendemocracy.net/article/democracy_power/africa/chad_tragedy 45 H Wiseman, ‘The OAU: Peacekeeping and Conflict Resolution’ in Y El-Ayouty and I William Zartman (eds), The OAU After Twenty Years (New York, Praeger Publishers, 1984) 131-32. On neutrality and impartial see D Donald, ‘Neutrality, Impartiality and UN Peacekeeping at the Beginning of the 21st Century’ (2002) 9 (4) International Peacekeeping 21. 46 According to Alex Rondo, Nigerian troops ‘had to be withdrawn when it became obvious that they would be at even greater physical risk than the belligerents,’ West Africa, 29 September 1980.
- 19. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 11 relations between Nigeria and some of the factions deteriorated to the extent that the Nigerian contingent was viewed as an ‘occupation army’ and asked to withdraw.47 A further reconciliation conference provided for an OAU neutral force to supervise the ceasefire and oversee the peace process.48 In the event, only 500 Congolese troops arrived in January 1980 and these had to be withdrawn soon after when fighting escalated.49 The troops had little impact on the ground and fighting continued unabated. Finding a solution under the framework of the OAU was proving increasingly difficult. Part of the reason for this may be that Nigeria was setting the agenda and the Nigerian and OAU efforts in Chad became indistinguishable. During this period, Libya continued its involvement in Chad and in January 1981, both governments announced their decision to work towards achieving a merger of the two countries. This plan was greeted with hostility and Chad ultimately succumbed to pressure from other African leaders who made deployment of peacekeepers contingent on a Libyan withdrawal.50 A further summit in Nairobi during 1981 provided for the deployment of African peacekeepers.51 From the earliest days of deployment, however, the peacekeeping operation was beset with problems stemming from financial and logistical weaknesses that that had a serious detrimental effect on the operational capacity of the mission.52 Efforts to obtain UN funding were unrealistic and unsuccessful.53 In 1982, the OAU peacekeeping force withdrew.54 It had little option, apart from the inadequate logistical and financial support, the mandate was ambiguous and the parties to the conflict were unable or unwilling to reach any resolution. The earlier OAU mission to Chad proved too ambitious for the limited resources of the Organization. The already impoverished troop contributing countries were burdened with the financial costs of the operation. This undermined logistical support 47 Keesing's Contemporary Archives (London, Cartermill International, 1980) 30066. 48 In August 1979, Nigeria hosted another reconciliation conference within the framework of the OAU, Keesing's, above n 47, at 30067. 49 Ibid. 50 UNGA ‘Report of the Secretary-General on Chad’ (1983) OAU Document AHG/109 (XIX) Part I, 2 and 3. 51 Nairobi Summit Resolution AHG/Res 102(XVII), para 5. 52 Letter to the Security Council, 2 Dec 1981, circulated in Security Council Doc S/15011, 29 April 1982. 53 The Security Council did adopt a consensus resolution calling on the UN Secretary-General to establish a voluntary fund to assist the mission, UNSC Res 504 (30 April 1982) UN Doc S/Res/504. 54 See UNGA ‘Report of the Secretary-General on Chad’ OAU Document AHG/109(XIX) Part I, 12-13; and OAU Document AHG/ST/CTTEE/CHAD/Res 1(III).
- 20. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 12 and command and control mechanisms within the force. The net effect was to undermine the overall effectiveness of the force and its morale. Many of the weaknesses represented significant failures to adhere to best practice. These included too broad a mandate and loose terms of reference, lack of consent from the parties, and no real peace to keep compounded by a divided OAU.55 When this was combined with an ill-conceived negotiation process56 that did not take account of the reality on the ground and the root causes of grievance, the mission failed. This proved a significant blow to the prestige and authority of the OAU.57 The OAU's peacekeeping attempt failed to have any positive impact on the conflict in Chad. It also resulted in institutional frustration and regional disillusion with the initiative.58 The efforts at achieving a resolution were too piece meal. Chad would have benefited from a peace-building strategy and an integrated and multi- dimensional approach to the peace operation. The OAU missions in Chad demonstrated the failure of regional peacekeeping. Had the mission been led by the UN and supported by the OAU with troop contributions from African states, then a sustained operation within the framework of the UN might have been possible C. EUFOR59 AND UN INTERVENTION IN CHAD IN 200860 A deteriorating security environment prompted the UN Secretary-General in December 2006 to propose the deployment of a peacekeeping operation to monitor movements along the border areas, protect civilians under imminent threat and improve security by facilitating political dialogue.61 This was rejected by Chadian president Déby, who feared the real focus was Darfur. He wanted a UN civilian police 55 Keesing's, above n 48, at 31159-31163. 56 See IW Zartman, The Negotiation Process (Beverly Hills, Sage Publications Inc, 1978) Chapter 4. 57 See A Sesay, ‘The Limits of Peacekeeping by a Regional Organization: The OAU Peace-Keeping Force in Chad’ (1991) Conflict Quarterly 21. 58 Amoo, above n 42, at 22. 59 European Union Military Operation in Eastern Chad and North Eastern Central African Republic (EUFOR TCHAD/RCA) approved under Joint Action 2007/677/CFSP, 15 October 2008 and UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778. The mandate authorised a mission for one year from date of reaching Initial Operating Capacity (March 2008). It reached full Operating Capability in September 2008. 60 B Charbonneau, ‘What Is So Special about the European Union? EU–UN Cooperation in Crisis Management in Africa’ (2009) 16 (4) International Peacekeeping 546. 61 Annual Review of Global Peace Operations 2009, above n 3, at 32. ‘Chad: Relying on Outsiders’, The Economist, 31 May 2008, 52.
- 21. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 13 force but no UN military presence, however, after protracted negotiations it was agreed that an EU ‘bridging force’ of military personnel would deploy in eastern Chad and north-eastern Central African Republic. In essence, EUFOR was established to provide the military component of the UN mission (MINURCAT). The combined UN EU mandate was described as a ‘new beast’.62 The EUFOR and MINURCAT were two separate bodies, both mandated under the same UN Security Council resolution. This was the first occasion that EU/UN cooperation adopted the model whereby a European Union military force and a United Nations mission were combined under a single UN mandate. A major risk in the circumstances was the likelihood of confusion in the eyes of the local Chadian population. This was exacerbated by the fact that although French troops had been stationed in Chad for more than two decades and supported the regime of President Déby, France would provide the bulk of the troops for EUFOR.63 The deployment of EUFOR and MINURCAT indicated a renewed interest in the region. Maintaining stability in Chad was an integral part of the strategy to protect Sudanese refugees located there and other displaced persons in the region, including CAR and Darfur. UN Security Council Resolution 1778 (2007), which was adopted under Chapter VII of the UN Charter, mandated EUFOR to contribute to the protection of civilians in danger, establish wider security to facilitate the delivery of humanitarian assistance, and contribute to the protection of UN and humanitarian personnel.64 Such a mandate was bound to bring EUFOR into conflict with both the Chadian authorities and rebel groups. It was not long before Déby accused it of cooperating with rebel forces that had seized towns in the east of the country.65 Irish forces were involved in confrontations with rebel forces. An incident in June 2008 led to criticism of the alleged failure of Irish troops to protect UNHCR staff and premises from rebel forces.66 Although later withdrawn, it is a good example of the uneasy relationship 62 Acting head of MINURCAT, Ousseni Compaoré, quoted by Integrated Regional Information Networks (IRIN), UN, 14 January 2008. 63 See comments by Lt Col J Vall, Deputy Chief of the Military Liaison Officers, MINURCAT, quoted by Integrated Regional Information Networks (IRIN), United Nations, 14 January 2008. 64 UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778, para 6 and EUFOR Op EUFOR TCHAD/RCA – Concept of Operations and the Provisional Statement of Requirements, 7 Nov 2007, Reference #19749/07, 4. After a considerable delay EUFOR had deployed 3307 troops by October 2008. Annual Review of Global Peace Operations 2009, above n 3, at 34. 65 Aljazeera.net, Tuesday 17 June 2008 and Mary Fitzgerald, ‘Clashes in Chad under control, O’Dea told’, Irish Times, 17 June 2009, p 7. 66 C Lally, ‘Irish troops criticised for failing to protect staff’ The Irish Times, 18 June 2008.
- 22. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 14 that sometimes exists between UN and other humanitarian workers and military personnel on the ground to protect them.67 Unfortunately, such incidents and accusations also make headline news, but the retraction or correction receives much less attention. D. FRANCE PLAYS LEAD ROLE IN EU FORCE The EU deployment of a rapid reaction force in Chad/CAR marked the evolution of EU policy in relation to sub-Saharan Africa.68 The appeal of the EU emanates from its political legitimacy, economic clout and perceived neutrality. It is also an established civil–military actor with a wide spectrum of its available means at its disposal giving it the potential to dominate integrated crisis management in the future.69 The EU is seen as a unique organization, something more than what was envisaged under Chapter VIII of the UN Charter.70 This uniqueness bestows on it an enhanced status and legitimacy. However, this can be overstated. The political interests of the EU will always be the driving force behind foreign policy decisions and a decision to deploy forces must be seen to serve the interests of the Union as a global actor.71 At the very least, ‘the EU’s conflict management policy towards Africa has first and foremost been motivated by European concerns, which consist of both common interests and French national interests in particular.’72 The French role is central to EU military operations on the African continent, both in terms of political leadership and the willingness to project military power. Nowhere was this more evident than in Chad, where France had to work hard to convince EU partners to support an initiative that all knew was in French interest.73 A French led operation was viewed with less . The UNHCR subsequently apologised for the staff members remarks and ‘misinformation’ about the incident. See P Cullen, ‘Matter of UN Chad remarks “closed”’, The Irish Times, 21 June 2008 and C Lally, ‘O’Dea says troops in Chad face greater risk’ The Irish Times, 27 August 2008. 67 M Fitzgerald, ‘Aid agencies and EU Chad force learn trust in tense security zone’ The Irish Times, 26 November 2008. 68 G Lee, ‘The EU and Conflict Management in African Emergencies’ (2002) 9 (3) International Peacekeeping 87. 69 B Giegerich, European Military Crisis Management: Connecting Ambition and Reality (London, International Institute for Security Studies, 2008) 24. 70 K Graham and T Felìcio, ‘Regional Organisations and Collective Security: The Role of the European Union’ in M Ortega (ed), The European Union and the United Nations:Partners in Effective Multilateralism (Paris, EU Institute for Security Studies, 2005) 92. 71 Lee, above n 68, at 87-102. 72 G Olsen, ‘The EU and Military Conflict Management in Africa: For the Good of Africa or Europe?’(2009) 16 (2) International Peacekeeping 257. 73 Charbonneau, above n 60, at 556.
- 23. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 15 suspicion by the Déby regime. Rebel forces did not see EUFOR as an impartial mission.74 Having France play a lead role suited the Chadian leadership. EUFOR provided Déby with some respite by shouldering part of the security burden of the Chadian military and allowing them to concentrate their efforts in defeating rebel forces. E. CHALLENGES FOR EUFOR The political expectations for EUFOR did not match the military capacity of the force and the range of obstacles that confronted it on the ground.75 Although it did have adequate military capability, this was intended for deterrence, not combat. Deterrence became a key concept in the underlying strategy of the operation. The overall objective was to create a safe and secure environment in the area of operations. This is an undefined concept that presupposes the existence of a functioning state. EUFOR was a bridging operation to facilitate the simultaneous deployment of a UN police mission and other elements under MINURCAT. The concept was developed from previous UN/EU cooperation in crisis management. The premise seemed to be based on the assumption that Chad was a functioning state. However, the rule of law and related issues of governance within Chad were dysfunctional.76 Unfortunately, MINURCAT was much slower becoming operational than originally envisioned. This was a significant impediment as EUFOR was configured for dealing with military threats while MINURCAT was intended to train police to deal with criminality and banditry. In the circumstances, it was hard for the refugees or internally displaced persons to see any tangible benefit from the presence of EUFOR. Apart from the delay in deployment, EUFOR was considered a success.77 It would have been preferable had EUFOR not announced its date of deployment in advance, thereby undermining its impact and precipitating a rebel offensive. Although operational capability was declared somewhat prematurely in mid-March 2008, it was mid- September when EUFOR was fully operational. Once on the ground, patrolling, 74 P Fletcher, ‘Chad rebel attack aimed to spoil EU mission’ Reuters, 4 February 2008. 75 A Mattelaer, The Strategic Planning of EU Military Operations – The Case of EUFOR TCHAD/CAR, IES Working Paper 5/2008 (Brussels, Institute for European Studies, 2008) 6. 76 Personal interview, former senior EUFOR officer, Dublin 2010. 77 Oxfam Briefing Paper, Mission Incomplete: Why Civilians Remain at Risk in Eastern Chad (London, Oxfam International September 2008) 2 and 12-15.
- 24. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 16 destroying unexploded ordnance and showing a military presence around sensitive areas contributed to the civilians feeling safer. Despite this, many NGO’s did not perceive EUFOR as adopting a high visibility role and a policing deficit, with a consequent culture of impunity, still reigned. The EUFOR operation built on the premise that the UN would assume its role within a relatively short time frame. The bridging operation concept has much to recommend it from an EU perspective. There are the obvious public relations benefits of intervention during a crisis, but avoiding the long-term danger of trying to formulate an exit strategy before the crisis has been resolved. The main danger is that spoilers, aware of the time frame, will just sit it out until the force withdraws. This presented the UN with the burden of ensuring the follow up operation has sufficient deterrent capability to assume responsibility for the security situation. The EUFOR operation highlighted shortcomings in EU common security and defence policy. The EU did not deploy an existing Battle Group. The Nordic Battle Group had become operational from 1 January 2008 and was well placed to fill the role of the EU expeditionary force. While a number of states expressed reservations, Sweden refused to participate.78 In Ireland, there was some opposition to the participation of defence force personnel in a ‘French dominated’ international force and there were calls to deploy with the AU/UN force in Darfur.79 Eventually a number of member states agreed to contribute troops to make up this force. Each contributing state assessed the training requirements for participation and then completed the training programme in their respective national territory. In this way, there did not appear to be a European Union assessment exercise or training programme for this operation. The planned strength of EUFOR had to be reduced from 4000 referred to in the crisis management concept to 3700 when no more troops were made available despite five force generation conferences.80 Furthermore, unlike pre-existing Battle Groups, the contingents involved did not complete training exercises beforehand and, in some cases, may not have worked together in an operational environment before deploying. In the case of the Chad mission, this does 78 Interview, EU military official, Brussels, June 2010. 79 See E Horgan, ‘Army tied into questionable peace missions’ The Irish Times, 8 August 2008. In contrast see T Kinsella, ‘Chad Mission to EU military’s peaceful role’ The Irish Times, 9 March 2009. 80 HG Ehrhart, Assessing EUFOR Chad/CAR (Hamburg, Institute for Peace Research and Security Policy, 2008) 1 and A Mattelaer, above n 75, at 17.
- 25. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 17 not appear to have caused any significant operational or other problems on the ground. However, it does mean that European Union integrated training for crisis management operations has a long way to go before it becomes a reality. Furthermore, it is not the optimum way to conduct an operation and makes an EU integrated training programme more virtual than real. An unfortunate consequence of any military intervention is that it can preserve the status quo and indirectly assist those with most power. This may be unavoidable, but awareness of the unforeseen and often unintended consequences should guide the tactics and strategy of any such operation. The EUFOR mission did help to create a secure environment in the east, but it did not create conditions sufficient to see internally displaced persons and refugees return home. Its presence, dominated by France, facilitated the Chadian military in dealing with rebels and compromised the impartiality of the force.81 The absence of government forces compounded EUFOR’s inability to deal with criminal gangs.82 Most of all, EUFOR was a vehicle for French policy that suited other states as it disguised the inadequacy of the international response to the regional issues at the heart of the conflict in Chad, CAR and Sudan.83 F. PLANNING DEFICIENCIES The planning process for the joint, multidimensional presence of EUFOR and MINURCAT was described as ‘instructive, as separate planning processes were said to have yielded different points of concern and challenges to creating shared objectives.’84 Owing to the simultaneous deployment of both EUFOR and UN in 81 See generally D Donald, ‘Neutrality, Impartiality and UN Peacekeeping at the Beginning of the 21st Century’ (2002) 9 (4) International Peacekeeping 21. 82 Human Rights Watch, The Risk of Return: Repatriating the Displaced in the Context of Conflict in Eastern Chad (Human Rights Watch, 2009) and ‘Aid groups face dilemma over EU protection’, Integrated Regional Information Networks (IRIN), 16 May 2008. 83 H Van Dijk, ‘Briefing: Political Deadlock in Chad’ (2007) 106 African Affairs 697 at 699. S Massey and R May, ‘Commentary: The Crisis in Chad’ (2006) African Affairs 106, 420 and 443–9. An analysis of the French role in the Chad/Darfur crisis can be found in B Charbonneau, ‘France’ in D R Black and P D Williams (eds), The International Politics of Mass Atrocities: The Case of Darfur (London, Routledge, 2009). 84 Annual Review of Global Peace Operations, 2010, above n 3, at 19 citing Internal UN Document, After Action Review: UN-EU Planning for EUROR Chad/RCA, 29 April 2008. On the logistical challenges see B Seibert, African Adventure? Assessing the European Union’s Military Intervention in Chad and the Central African Republic: Working Paper (Cambridge, MIT Security Studies Program, 2007). On the EU’s military plan-
- 26. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 18 Chad and the CAR, joint planning and close coordination was required between the two organisations.85 This proved more difficult than anticipated. First, the EU priority was internally displaced persons, while the UN focused on the security of refugees. This led to different priorities on the ground and differences in risk assessment. Second, differences in organisational structures and planning exacerbated contrasting expectations. Another lesson for EUFOR is that force generation and planning should be simultaneous and part of a single process. Concurrent activity is not enough if the processes are separate.86 EUFOR operational planning had set an end date from the outset.87 In contrast to that of EUFOR, planning, or the lack thereof, was seen as a major flaw in the UN operation. Nowhere was the lack of planning more apparent than in the logistical arrangements for the follow up UN military force.88 Given the remoteness of the location and the harsh climate and environmental conditions, this was a serious flaw. Threat assessment and obtaining accurate intelligence also proved problematic. Initially rebel groups and Janjaweed89 forces were deemed to pose the greatest threat, while on the ground banditry and criminality presented the greatest threat to security. Although well resourced and trained, the EUFOR mission did not have the mandate to deal with the day to day realities of criminality that were prevalent. The force was configured for a military role in the protection of vulnerable civilians and was not organised for internal security or policing operations.90 An assessment in 2008 indicated that the security situation required an international military presence with the capacity for rapid deployment and the ability to project itself quickly and effectively to deal with the continuing cross-border violence. The strategy involved deterrence, a long established principle of UN deployment. The harsh environment and size of the area of operations meant helicopter support and threat assessment or intelligence gathering capability was needed. Close coordination with NGO’s who ning process, see Council of the European Union, EU Concept for Military Planning at the Political and Strategic Level, Doc 110687/08, 16 June 2008. 85 EUISS Report, Lessons from EUROR TChad/RCA, EUISS Seminar, 18 March 2010, IESUE/SEM(10)02 14 April 2010, 3. 86 Mattelaer, above n 75, at 32. 87 UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778, paras 6 (a) and 6(b) indicated a one year duration. 88 Interview by author, senior Irish army officer who served in Chad at the time, 27 April 2010. 89 Ibid. 90 UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ UN Doc S/2008/601.
- 27. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 19 have been on the ground for a prolonged period can help in this regard. Good civil military relations (CIMIC) can facilitate exchange of information and enhanced cooperation. The UN force was to comprise some 6000 personnel with reserve or ‘over the horizon’ forces for emergencies.91 The EU High Representative for Foreign and Security Policy, Javier Solana, claimed that the operation demonstrated how the EU has become a global provider of security and stability and how deployment was achieved ‘quickly and decisively.’92 The EU did prove a valuable partner to the UN in providing a bridge to facilitate the deployment of the follow-on UN peacekeeping force. It was another example of the EU’s ability to mount an autonomous military operation without United States support. The deployment also gave substance to the EU’s commitment in the joint EU-Africa Strategy.93 Although contributions from non-EU states were welcome, these are often agreed after protracted negotiations and delays. For this reason, reliance on EU contributions are preferable, at least in the short term until more structured arrangements are put in place for third state participation. The logistical achievement of building major camps and construction at airports to facilitate deployment was considerable. It can also be said to have been an efficient and cost effective operation. However, EUFOR was not a showcase for EU rapid deployment. Furthermore, when EUFOR withdrew, civilians in eastern Chad were still in need of the same protection as before.94 G. DEPLOYMENT OF MILITARY COMPONENT OF MINURCAT95 The prevailing security situation in Chad involved a complex mix of banditry and attacks by armed groups.96 In many cases it is difficult to identify those responsible; they may be armed opposition groups, soldiers, armed groups from Sudan, ordinary 91 UNSC Res 1861 (14 January 2009) UN Doc S/RES/1861. 92 J Solana, ‘Chad mission shows EU is effective in giving stability’ Irish Times, 13 March 2009. 93 Ibid. 94 E Ford, Head of Oxfam, quoted in ‘EU mission in Chad ends amid tensions’ euobserver.com, 12 March 2009. 95 ‘Refugee Women Raped and Assaulted Despite UN Presence,’ Amnesty International Press Release, 2 October 2009 and ‘No Place for Us Here – Violence Against Refugee Women in Eastern Chad,’ Amnesty International September 2009, Index: AFR 20/008/2009. 96 The UN reported that there were at least 152 security incidents against humanitarian workers in eastern Chad in the first five months of 2009. UNGA ‘Report of the UN Secretary-General’ 14 July 2009, para 19.
- 28. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 20 criminals or even members of the local police.97 Communal tensions can also spill over into violence. While the military are trained to deal with internal security and related issues, soldiers are generally not suited to tasks involving policing. With this in mind, the Security Council decided that there should be a significantly increased national and international police presence in eastern Chad.98 In his report to the UN Security Council in December 2008, the Secretary-General outlined the continuing precarious security situation and the previously reported trend in banditry, and crimes targeting humanitarian workers, refugees and Chadian citizens.99 Recognising this, the Security Council decided to transfer the military component of the mission from the EU to MINURCAT with effect from 15 March 2009.100 MINURCAT encountered other significant obstacles in becoming fully operational. From the outset, Chad sought to dictate the strength, force structure and composition of the force.101 Transfer of critical assets was delayed when the Chadian authorities prevented direct transfers from EUFOR to the UN and insisted on separate agreements with the government. The Force Commander and Deputy Force Commander were appointed late in the day and had no input into the formulation of the MINURCAT concept of operations (CONOPS).102 From an early stage there was evidence of a lack of commitment to the UN’s concept of operations and that it might 97 Personal interview, former humanitarian aid worker, Dublin, Ireland, June 2010. 98 UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778, para 5. The intended force was initially called the Chadian Police for Humanitarian Protection, Police tchadienne pour la protection humanitaire (PTPH) but was later officially named the Integrated Security Detachment, Détachement Intégré de Sécurité (DIS). 99 UNGA ‘Report of the Secretary-General into the United Nations Mission in Central African Republic and Chad’ (2008) UN Doc, S/2008/760, paras 11-15. 100 UNSC Res 1861 (14 January 2009) UN Doc S/RES/1861. Paragraph 7(a) provided, inter alia, that MINURCAT: shall be authorised to take all necessary measures, within its capabilities and its area of operations in eastern Chad to fulfil …(i) to contribute to protecting civilians in danger, particularly refugees and internally displaced persons, (ii) to facilitate the delivery of humanitarian aid and the free movement of humanitarian personnel by helping to improve security in the area of operations, (iii) to protect UN personnel, facilities, installations and equipment and to ensure the freedom of movement of its staff and associated personnel. 101 UNSC ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ S/2008/760 (4 December 2008) para 42. 102 UN, Military Strategic Concept of Operations for the United Nations Mission in the Central African Republic and Chad (MINURCAT), Number 0269, 5 February 2009.
- 29. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 21 prove problematic generating the necessary personnel.103 The UN seemed wholly unprepared for assuming responsibility and some members of the Core Planning Team were too inexperienced for the job.104 While the Office of Military Affairs at the Department of Peacekeeping Operations made a real effort, it was hampered by a lack of a common Operational Planning Design. Geographic diversity and varying standards of training are familiar challenges on such missions. The adoption of the EUFOR Guidelines to Operational Planning Module and NATO Combined Task Force (CJTF) procedures put non-European troop contributing countries at a disadvantage. Even the Rules of Engagement were copied from those of MONUC. These referred to the militias and other groups in the DRC and were not amended for Chad. This was inexcusable for something so fundamental to military operations. Similarly, the initial strategic military documents of MINURCAT Force were based on EUFOR precedents, with the necessary amendments. By June 2009, it had still not reached 50% of its authorised strength of 5,225 and member states were slow to make pledges of more troops.105 Where it is envisaged that the UN will take over the mission, provision for such an event should be included in the UN mandate. Troop contributing states can be identified at the outset and other key appointments made well in advance. Obtaining essential military equipment also proved problematic.106 Like EUFOR, MINURCAT also encountered problems deploying helicopter support. In mid-April 2009, the Secretary-General reported that the mission had only received ‘pledges’ for six of the 18 military helicopters deemed necessary.107 Helicopters are essential for tactical airlift and medical evacuation. They also provide visibility, mobility and flexibility to cover a large area of operations, and where 103 HG Ehrhart, Assessing EUFOR Chad/CAR (Hamburg, Institute for Peace Research and Security Policy, December 2008) 3. 104 The Core Planning Team is usually comprised of personnel from the major staff cells within a force headquarters, eg Personnel (J1), Intelligence/Information (J2), Operations including Air Operations (J3), Logistics (J4), and Plans (J5). Delays meant the Core Planning Team was also too late in forming up. 105 UNGA ‘Report of the UN Secretary-General into the United Nations Mission in Central African Republic and Chad’ (2009) UN Doc S/2009/359, para 22. UNSC Res 1861 (14 January 2009) UN Doc S/RES/1861, para. 4 provided that ‘MINURCAT shall include a maximum of 300 police officers,25 military liaison officers, 5,200 military personnel, and an appropriate number of civilian personnel.’ 106 UNSC ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’(2009) S/2009/359 (14 July 2009) para 71. In mid-April 2009, the Secretary-General reported that the mission had only received ‘pledges’ for six of the necessary 18 military helicopters. 107 UNGA, ‘Report of the Secretary-General into the United Nations Mission in Central African Republic and Chad’ (2009) UN Doc S/2009/199, para 30. The Force strength was 2079, 40% of its authorised strength of 5200.
- 30. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 22 appropriate, fire support. MINURCAT lacked 14 of the required 18 military utility and reconnaissance helicopters called for in the concept of operation. Consequently, the Force lacked the ability to monitor incidents as they occurred and was unable to deploy a reserve force that possessed the necessary mobility to react swiftly to events on the ground.108 Helicopters also act as force multipliers, crucial when there are too few troops to cover a large area with a poor or non-existent infrastructure. UN air assets were also civilian led and constrained by regulations which significantly restricted operational capacity.109 A core activity of MINURCAT was the commitment to strengthening and training the Chadian police and reform of the justice sector, especially in the east.110 This reflected the threat assessment from criminality and banditry on the ground. However, the UN and EUFOR did not have the right to investigate crimes or arrest suspects. Resolution 1861 directed that MINURCAT ‘select, train, advise and facilitate support to elements of the Détachement Intégré de Sécurité (DIS).’111 The UN was to train 850 DIS police whose task was to provide security in refugee and displaced persons camps and key towns.112 The UN had no authority or command over the police force and did not oversee recruitment.113 The DIS received mixed assessments. Some reports found that they had a positive impact on camp security, while others argued that a false picture of their training and expertise was presented in order to make the UN look good.114 In reality, many were not up to the task and contained criminal elements that were responsible for attacks on refugees and displaced persons.115 Furthermore, most people did not distinguish between the DIS and the UN, and 108 UN Security Council, 6121st meeting, 8 May 2009, Doc S/PV 6121. 109 Capacity to fly at night was important and lacking. This also created deficiencies in medical evacuation capacity. The latter was resolved when an aero-medical team from Sri Lanka and a Bangladeshi aviation unit deployed into the mission area. UNGA, ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/217 29 April 2010. Interview by author with senior MINURCAT officer, Dublin May 2010. 110 UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/409, paras 29-56. MINURCAT mandate also provided for human rights, gender, child protection, civil affairs, HIV/AIDS and mine action. 111 UNSC Res 1861 (14 January 2009) UN Doc, S/RES/1861. 112 UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778. 113 The DIS was under the command of the Coordination Nationale d’Appui à la Force Internationale à l’est du Tchad (CONAFIT) which was the responsibility of the Chadian Ministry of the Interior. 114 Personal interviews, military and NGO personnel who worked or were deployed in Chad during this period, Dublin, July 2010. 115 Interviews by author with Irish Defence Forces officers, Curragh Camp, 22 April 2010. For a contrary view see J Karlsrud and R Solhjell, An Honourable Exit for MINURCAT: Policy Brief (Oslo: Norwegian Institute of International Affairs, 2010) 2.
- 31. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 23 consequently the UN was tarnished by the unprofessional conduct of the DIS. This ranged from extortion, abuse of power, and general lack of discipline. Rule of law and judicial reform remain major hurdles that compound the policing deficit. Security Sector Reform remains a serious challenge and a pre-requisite for the creation of a sustainable secure environment. The major funders, including the EU, are reluctant to finance such activities given the level of corruption in the country.116 CONCLUSION The early interventions in Chad provide some important lessons for contemporary operations. Peacekeeping efforts are more likely to achieve positive results in Africa if they are UN initiatives planned as integrated multilateral missions within the framework of the UN, with the African Union or other regional organizations playing a complementary but subordinate role. The earlier OAU's attempts at peacekeeping failed and resulted in regional disillusion with the initiative. Interventions by the UN, African Union or EU demonstrate that piece meal efforts will not resolve such intractable conflicts. Chad would have benefited from a UN peace-building strategy and an integrated multi- dimensional approach to the peace operation. Had the mission been led by the UN in the early stages and supported by the OAU with troop contributions from African states, then the outcome might well have been different. While the EU can claim qualified success, in reality it set itself limited goals and did not commit to the long term mission in Chad/CAR. Similar to Operation Artemis in the Democratic Republic of the Congo, EUFOR did succeed in improving the overall security situation in its area of operations pending relief by UN forces. The delays in deployment by both EUFOR and MINURCAT did undermine operational effectiveness. This in turn had an adverse impact on the work of humanitarian agencies who considered the force was there to serve their interests and ensure humanitarian assistance was delivered.117 The EU needs to address the strategic mobility deficit apparent in the deployment of EUFOR. The operation did not have an 116 Karlsrud and Solhjell, An Honourable Exit for MINURCAT, above n 115, at 3. 117 Interview, former UN Civil-Military Co-operation (CIMIC) officer with the Irish battalion during 2009 and 2010, Galway, December 2010.
- 32. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 24 impact on the proxy war between Chad and Sudan, nor the border area between both countries as this was outside the EUFOR area of operations. The largest security gap remained inside the refugee camps, where the UN trained Chadian police were supposed to deploy. EU bridging was a good idea. However, it was premised on the subsequent deployment of a credible UN military force that could maintain a safe and secure environment. Even a relatively uninformed observer should have appreciated the political and military challenges that a follow up UN operation would confront. Nor can any intervention be truly impartial.118 Like the UN force that succeeded it, EUFOR did not improve the overall political and security situation in the region. The fact that this was not part of the mandate is irrelevant. The EU, its member states and others should have taken the opportunity to address the fundamental issues at the heart of the conflict. The lack of planning and mechanisms for a smooth transition from EUFOR to the UN proved a serious handicap. The experience demonstrated the need to implement the UN’s principles and guidelines for integrated planning outlined in the ‘Capstone’ and ‘New Horizon’ doctrines.119 Logistics, administration and lack of coordination between the UN Department of Peacekeeping Operations and Department of Field Services proved especially problematic. Training and experience still count for a great deal among the military, and some UN staff failed to appreciate the concept of ‘force projection’ involving high visibility patrols and mobility required by the MINURCAT concept of operations.120 Déby’s unwillingness to co-operate with the UN in a meaningful way was a major obstacle.121 MINURCAT found its freedom of movement restricted as Chad began to withdraw cooperation. The UN sought to address the Chadian concerns and it sent a number of teams to examine options.122 UN officials are on record as opposing withdrawal. UN Head of Peacekeeping, Alain Le Roy, was reported to have said it was ‘very hard to imagine at that moment’ that Chadian forces could protect 118 R K Betts, ‘The Delusion of Impartial Intervention’ (1994) 73 (6) Foreign Affairs 20. 119 United Nations Peacekeeping Operations, Principles and Guidelines (New York, United Nations Department of Peacekeeping Operations, 2008) 53-57. UN, A New Partnership Agenda, above note 1, at 24-25. 120 Personal interview, Irish officer serving with MINURCAT, December 2010. 121 Note verbale from the Chadian government dated 15 January 2010 requested that the UN commence negotiations to determine the modalities for a withdrawal. Report of the Secretary-General on the United Nations Mission in the Central African Republic and in Chad (MINURCAT), UN Doc S/2010/217, 29 April 2010, para 12. 122 UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/217. Three missions to Chad were led by the former military adviser to the Secretary-General, Major General (retired) P Cammaert.
- 33. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 25 civilians.123 The UN plan to train the Chadian police force does not appear to have worked. A more comprehensive institutional and security sector reform programme was required. An EU police mission and security sector reform mission in Chad could have complemented UN efforts. The EU has a particular responsibility to foster reform and support for civil society. It should also be at the forefront of UN efforts. France has a special relationship with the regime in Chad. As a member of the EU and the Security Council it had an onerous responsibility to use diplomatic leverage to secure concessions from Chad. The UN Secretary-General emphasised the mandate of EUFOR and MINURCAT dealt with the consequences but not the root causes of the conflict.124 What is most needed is a comprehensive plan to deal with Chad and the region as a whole. Such a regional strategy must engage national, regional and international actors. The International Crisis Group recommended revival of political dialogue to facilitate a national pact to deal with comprehensive reform of the whole body politic, including decentralisation and distribution of oil revenue.125 A precursor to any meaningful dialogue is a cease-fire agreement between government and armed opposition. The history of the region points to the UN being the only organization with the capacity to put in place the mechanics to make this successful.126 However, the UN is overstretched and it is likely that the debate will be dominated by financial and personnel issues while the primary causes of instability remain unaddressed. When a host state such as Chad calls for withdrawal, does the UN have many options? A narrow legal interpretation might well refer to the provisions of the UN Charter establishing and deploying the force. A resolution adopted under Chapter VII of the Charter may be sufficient justification for intervention in the internal affairs of a state. However, the political realities in the Security Council and the military reality on the ground required the adoption of a more consensual approach. This is essentially what happened in relation to UNAMID, 123 P Worsnip, ‘UN wants to keep Chad peacekeepers, gov’t says no’ Reuters, 17 February 2010. 124 UNSC ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2008) UN Doc, S/2008/444. 125 See International Crisis Group, Chad: A New Conflict Resolution Framework, Africa Report No 144, 24 September 2008. 126 These should include an international multi-dimensional peace operation to create a joint monitoring system, a process of disarmament, demobilisation, repatriation, reintegration and resettlement (DDRRR).
- 34. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 26 where despite adopting a resolution under Chapter VII, the UN was reliant on the government of Sudan in order to be able to deploy the peacekeeping force. It is not at all evident that the UN Security Council took sufficient account of the needs of displaced persons and refugees. There has been much written in recent years about the responsibility to protect civilians at risk.127 The international response is in contrast to the responsibility to protect principle outlined, inter alia, in the Brahimi Report, the High Level Report on Threats, Challenges and Change128 and endorsed in less forthright terms at the World Summit in September 2005.129 Although the 2008 UN Capstone Doctrine on principles and guidelines adopts the protection of civilians as a ‘cross cutting’ issue, it offers no definition or insight to inform planning and preparation for specific missions.130 A further issue is how to secure the humanitarian workers on the ground and the delivery of humanitarian aid. Despite protestations to the contrary, the international community under the guise of the UN effectively abandoned vulnerable groups and humanitarian workers in Chad. In CAR, there was concern that the withdrawal would embolden armed groups and increase lawlessness and insecurity.131 MINURCAT had not lived up to expectation in CAR and was seen as risk averse.132 The situation presented a challenge for the Security Council and constituted something of a ‘Hobson’s choice.’ It had no option and needed to reach agreement on a revised resolution that accommodated the Chadian government's demands while also responding to the realities of the security situation. Linked to this was the question whether the Chadian government possessed the will or capacity to protect 127 See S Wills, Protecting Civilians – The Obligations of Peacekeepers (Oxford, Oxford University Press, 2009) and V Holt, G Taylor and M Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations Successes, Setbacks and Remaining Challenges: Independent Study Jointly Commissioned by the Department of Peacekeeping Operations and the Office for the Coordination of Humanitarian Affairs (New York, United Nations, 2009). UN, A New Partnership Agenda, above n 1. International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa, International Development Research Centre, 2001). W Zartman, Preventing Identity Conflicts Leading to Genocide and Mass Killings (New York, International Peace Institute, 2010); and JL Holzgrefe and R O Keohane (eds), Humanitarian Intervention (Cambridge, Cambridge University Press, 2003). 128 United Nations, Report of the Panel on UN Peacekeeping Operations (Brahimi Report), UN, A/55/305–S/2000/809 of 21 August 2000, and ‘A more secure world: our shared responsibility’, Report of the High-level Panel on Threats, Challenges and Change, UN Doc A/59/565, 2 December 2004. 129 A/RES/60/1, 24 October 2005, para 139. 130 United Nations Peacekeeping Operations, Principles and Guidelines (New York, United Nations, Department of Peacekeeping Operations, 2008) 16 and 24. 131 UN Doc S/2010/409, UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/409, para 68. 132 Ibid, at para 70
- 35. POST-UN WITHDRAWAL –AN ASSESSMENT OF PEACEKEEPING IN CHAD 27 civilians given the security challenges in the east. National forces are more likely to concentrate on fighting rebels than on protecting civilians.133 Humanitarian actors providing assistance to displaced persons and refugees are also vulnerable and in need of protection. It is difficult to see the result as other than a failure. The UN was handicapped from the start and even before the mission was established the government of Chad set clear limitations on what could be undertaken and ultimately demanded its premature termination. Noble principles in UN reports and the provisions of the UN Charter itself took second place to ‘realpolitik.’ Overall, the UN mission was not characterised by good planning and this was reflected in the withdrawal and handover to Chadian forces. A joint senior level Working Group or so called ‘humanitarian dialogue forums’ was unlikely to address, let alone resolve, the inept and corrupt Chadian security apparatus to protect civilians. In the absence of an international military presence, who will provide security? It is difficult to obtain reliable information on the plight of the internally displaced and refugees. An independent international monitoring presence is needed.134 The UN should continue to engage with the issue and provide support while the Security Council puts pressure on Chadian authorities to put in place a viable plan for civilian protection. 133 ‘Developments in Chad have international analysts, aid groups and the UN on the edge’, Diplomacy and Power Politics, 6 February 2010. 134 Amnesty International, Open Letter to all members of the Security Council- Protection of Civilians in Eastern Chad: Security Council must remain ‘ actively seized of the matter’, AFR/20/005/2011, 20 April 2011. Human Rights Watch, World Report 2011- Chad (New York, Human Rights Watch, 2011).
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- 37. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 29 Tulips and Jute: Grotius, Smith and an Enlightenment Ethos in International Taxation Law John Snape* A. INTRODUCTION In this article, I want to show how the natural law theory of Hugo Grotius (1583- 1645) might inform the analysis of what are often portrayed as distributional issues in the taxation of international business. In doing this, I would like to demonstrate, too, how the work of Adam Smith (1723-90) adds to the understanding of this ethical dimension to international tax law. The end I have in view is to suggest a philosophical framework within which national authorities might make prudential legal and policy decisions touching on the public international law of taxation. By ‘distributional issues’, I mean disparities in tax revenues caused by the cross- border operations of multinational corporate groups, sometimes through the use of secrecy jurisdictions, often through manipulating transfer prices. I shall expand on this explanation as I go along. Suffice it to say, for now, that there is increasing concern that national tax bases, especially of developing countries, are insufficiently proof against the tax planning activities of multinationals.1 Interventions, it is argued, are called for, in the name of global justice.2 But the questions are complex ones: what kinds of interventions would be appropriate? Who would be responsible for them? And what ethical stance might govern them? By ethics, I mean questions about * Associate Professor, School of Law, University of Warwick. I am grateful to participants in seminars and workshops at the universities of Aston, Leeds and Warwick and for the stimulating conversations that I have had with William Bain, Doug Bamford, Matthew Clayton, Dermot Fenlon, Christopher Finlay, Oliver Gerstenberg, Anna Gunn, Bill O’Brian, David Salter, Daniel Schwartz, Marc Stauch, Zofia Stemplowska, Michael Sutton, Andrew Walton and Uwe Wunderlich. I am particularly indebted to Dermot and to Michael, who each made detailed comments on an earlier draft and to the two anonymous reviewers whose comments on the version as submitted have proved extremely valuable. The inevitable errors and infelicities remain my responsibility. 1 eg, R O’Brien and M Williams, Global Political Economy: Evolution and Dynamics, 3rd edn (Basingstoke, Palgrave Macmillan, 2010) 212-215. 2 Eg, N Shaxson, Treasure Islands: Tax Havens and the Men Who Stole the World (London, Bodley Head, 2011) 281-282.
- 38. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 30 how we should live: what is good, what is bad, rather than ‘moral presuppositions’, namely, what ‘in the practice of life’, govern, at a conscious or unconscious level, ‘what people do’.3 My argument is that European Enlightenment ideas, specifically those of Grotius and of Smith, can remind us of the ethic that should be at work here. But there is, too, a moral dimension to my discussion, since I am concerned with the extent to which governments’ ideas about ‘the right thing to do’ have historically been governed by Grotian and Smithian thought. To propose an ethic of this kind is thus to uncover some hidden intellectual roots and to suggest their renewed cultivation. My prompter is, in part, the need to counter an unrealistic turn in the policy discourse on international taxation. But it is also the fact that taxation has not until recently got a high billing in developed country scholarship on global economic justice and international economic law.4 Enlisting Adam Smith, the eighteenth-century Scottish moral philosopher, in my project seems appropriate enough. As the foundational international political economist, Adam Smith has things to say about taxation that continue to concern us. Most importantly, Smith envisages a world in which light taxation fosters the accumulation of capital through unrestricted trade, in a ‘natural system of perfect liberty and justice'.5 Such a world is peopled by industrious human beings whose sympathetic attitudes towards their fellow men and women6 are not hampered by archaic social and religious attachments. Yet I contend that Hugo 3 AC Grayling, What is Good? The Search for the Best Way to Live (London, Phoenix, 2003) ix. 4 There is, eg, no detailed discussion of international taxation in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford, Oxford University Press, 2010). But see, eg, D Salter, ‘Taxing Constraints on Developing Countries and the Global Economic Recession’ in J Faundez and C Tan (eds), International Economic Law, Globalization and Developing Countries (Cheltenham, Edward Elgar, 2010) 138-157. 5 A Smith, The Wealth of Nations Books IV-V [1776], AS Skinner (ed) (London, Penguin, 1999) 189 (see J Snape, ‘Montesquieu – “The Lively President” and the English Way of Taxation’ in J Tiley (ed), Studies in the History of Tax Law: Volume 5 (Oxford, Hart Publishing, 2011) 73-90, 82. 6 A Smith, The Theory of Moral Sentiments [1759/1790], RP Hanley (ed) (London, Penguin 2009) 13-18 (I.I.i).
- 39. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 31 Grotius, the seventeenth century Dutch natural lawyer, diplomat, theologian and moral philosopher, rivals Smith in importance. What Grotius provides is the philosophical context in which Smith’s thoughts are possible. Grotius’ natural law theory discerns in mankind a: Desire of Society, that is, a certain Inclination to live with those of his own Kind, not in any Manner whatever, but peaceably, and in a Community regulated according to the best of his Understanding; which Disposition the Stoicks termed Όικείωσιν.7 For Grotius, such a disposition significantly involves a theory of the sacrosanct nature of contracts. International treaties no less than any other kind of contract,8 are conducive to a world society of states: pacta sunt servanda.9 The two seminal thinkers of modernity are tangibly linked by Smith’s own study of, and engagement with, Grotius’ work.10 As Knud Haakonssen has demonstrated, both Smith and David Hume (1711-76), pre-eminent among the philosophers of the Scottish Enlightenment, took Grotius as an important starting-point for their own thought.11 Hume, with his focus on countering passion with passion,12 was however more sceptical of Grotius’ 7 H Grotius, The Rights of War and Peace, 3 vols [1625], R Tuck and J Barbeyrac (eds) and J Morrice (trans) (Indianapolis, Liberty Fund, 2005) 81 (Preliminary Discourse. VI) (page numbers do not begin afresh in each of the three vols of this edn, so only page numbers are given in the footnotes below, with Grotius’ own book, chapter and section numbers). 8 For Grotius on contracts and treaties, ibid, 699-883 (II.11-16), esp 817-18 (II.15.II) (see PS Atiyah, The Rise and Fall of Freedom of Contract (Clarendon Press, Oxford, 1979) 140-141). 9 See, eg, E Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge, Cambridge University Press, 2002) 40-41. 10 Smith himself had a Latin 1735 Amsterdam edition of de Jure Belli ac Pacis, not Morrice’s English translation (H Mizuta (ed), Adam Smith’s Library: A Catalogue (Oxford, Clarendon Press, 2000) 109. 11 K Haakonssen, ‘Hugo Grotius and the History of Political Thought’ (1985) 13 Political Theory 239-265, 247, 251. 12 D Hume, The History of England from the Invasion of Julius Caesar to The Revolution in 1688 [1778], vol 5 (Indianapolis, Liberty Classics, 1985) 101, quoted in AO Hirschman, The Passions and the Interests: Political Arguments for Capitalism before its Triumph, 20th anniv edn (Princeton, Princeton University Press, 1997) 47.
- 40. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 32 emphasis on mankind’s capacity for rational thought than was his younger contemporary. My conclusion is that Grotian ethics, as developed by Adam Smith, can help us to understand both the strengths and the weaknesses of current arguments about ‘global tax justice’.13 At the same time, their latent presence in international taxation law suggests that public international law of this kind is unlikely to achieve certain ends associated with issues of ‘tax justice’, so that other, less ambitious ones should be preferred. Note the hallmark of my argument, however. It is, first and foremost, a pragmatic contention about the importance of an identifiable tradition of thought to a particular policy area. It is closer to Amartya Sen’s argument for the incremental mitigation of injustice in global terms, than to a ‘Rawlsian’ argument about what a ‘transcendent’ theory of justice in international taxation might require. Nor is my argument about – say – how taxation might better promote human happiness. That is why, although I use the term ‘justice’, I tend to prefer the word ‘fairness’ throughout. It might, too, seem a deterministic argument. Some theories with Enlightenment standpoints are subject to this last objection, because of the qualities present in Enlightenment thought. But I am not saying that, because this area has Enlightenment origins, it is therefore constrained by them. I am simply arguing that those Enlightenment foundations are capable of yielding still further intellectual and practical possibilities. My purpose, to reiterate, is to offer a philosophical approach within which prudential decisions about international tax law might be made. With these caveats in mind, I work towards my conclusion about Grotius’ and Smith’s importance by examining four closely interrelated aspects of the topic. First, I argue that there are factors common to both our own times and their respective historical situations. This is an argument about the continuing relevance of their natural law tradition. Secondly, I maintain that the dominant conceptualisation of international tax law lacks a framework for addressing the global inequalities to which I have referred. This argument is both a protest at the hegemonic taxation scholarship and a claim that the discipline has lost a sense of its intellectual roots. Thirdly, I suggest that Grotian and Smithian thought has nonetheless been of 13 The key expression in the discourse surrounding, eg, The Tax Justice Network (see http://www.taxjustice.net/cms/front_content.php?idcatart=2&lang=1 (accessed 21 November 2011)).
- 41. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 33 considerable historical importance in the development of international taxation law. This is an argument about the nature and scope of the sovereign state’s capacity to tax, as understood in Grotian and Smithian terms. Finally, I propose that the historically sensitive cultivation of both Grotius and Smith, in a policy area largely lacking any explicit ethical framework, would help us to discern more clearly both the limitations on, and the potential for, a greater fairness. All of the issues that I seek to examine are born of the thought that some broadly internationalist approach to questions of international tax fairness is called for. My starting-point is thus a particular theory of international relations. Internationalism, the idea of a society of sovereign states, is the notion championed by the so-called ‘English school’ and associated with the passage from Grotius quoted above. Of Grotius’ thought, Hedley Bull, a major figure in that school of international relations, wrote: ‘The central Grotian assumption is that of the solidarity, or potential solidarity, of the states comprising international society, with respect to the enforcement of the law. This assumption is not explicitly adopted and defended by Grotius, but ... the rules which he propounds for international conduct are such as to presuppose that it is made.’14 So internationalism, or solidarism, emphasises at least some community of interest between states.15 A version of it has found expression in the ‘solidarity’ principle invoked by the architects of the Maastricht Treaty on European Union of 1993,16 as well as more recently by the General Assembly of the United Nations.17 Solidarism in international relations owes a great deal to the attempt by Sir Hersch Lauterpacht 14 H Bull, ‘The Grotian Conception of International Society’ in H Butterfield and M Wight (eds), Diplomatic Investigations: Essays in the Theory of International Politics (London, George Allen and Unwin, 1966) 51-73, 52. 15 Ibid, 57. 16 A von Bogdandy, ‘Constitutional Principles’ in A von Bogdandy and Jürgen Bast, Principles of European Constitutional Law (Oxford, Hart Publishing, 2006) 3-52, 32. 17 K Wellens, ‘Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections’ in R Wolfrum and C Kojima (eds), Solidarity: A Structural Principle of International Law (Heidelberg, Springer, 2010) 3-54, 5.
- 42. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 34 (1897-1960) in 1946 to make Grotian ethics the basis of a theory of international law.18 Internationalism therefore contrasts with the Hobbesian idea of states being: ‘because of their independency, ... in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms; and continual spies upon their neighbours; which is a posture of war’.19 The contrast is not a complete one because even Grotius recognises that states have particular, potentially conflictual, interests. What he denies is ‘that every Creature is led by Nature to seek its own private Advantage’.20 There is a complete contrast, however, between Grotius and ‘the Kantian or universalist tradition,’ which sees at work in international politics ‘a potential community of mankind’, or at least ‘an enduring and gradually expanding federation’.21 ‘Each nation, [writes Immanuel Kant] for the sake of its own security, can and ought to demand of the others that they should enter along with it into a constitution, similar to the civil one, within which the rights of each could be secured’.22 Although this universalist, Kantian, view is often referred to as a ‘cosmopolitan’ one, the cosmopolitanism in this article is not Kant’s, but Smith’s. To the extent that I draw on cosmopolitan ideas, I ground them in the 18 H Lauterpacht, ‘The Grotian Tradition in International Law’ in E Lauterpacht (ed), International Law: Being the Collected Papers of Hersch Lauterpacht, vol 2 (Cambridge, Cambridge University Press, 1975) 307-365; H Lauterpacht, The Function of Law in the International Community (Oxford, Clarendon Press, 1933) 422; M Koskenniemi, ‘Lauterpacht: the Victorian Tradition in International Law’ in The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge, Cambridge University Press, 2002) 353-412. 19 T Hobbes, Leviathan (M Oakeshott (ed)) [1651] (Oxford, Basil Blackwell, 1955) 83 (I.13). 20 Grotius, Rights of War and Peace (above n 7) 81 (Preliminary Discourse. VI). See R Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford, Oxford University Press, 1999) 135. 21 I Kant, ‘Perpetual Peace: A Philosophical Sketch’ [1795] in HS Reiss (ed) and HB Nisbet (trans), Kant: Political Writings, 2nd edn (Cambridge, Cambridge University Press, 1991) 93-130, 105; H Bull, The Anarchical Society: A Study of Order in World Politics, 3rd edn (New York, Columbia University Press, 2002) 23 and 310n. 22 Kant (above n 21) 102.
- 43. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 35 stoical idea of the philosopher as ‘Citizen of the World’,23 seeking to develop a broadly-based ethical framework, rooted in a particular view of human nature, and a realisation of the limited ends of human endeavour. This will involve invoking Fonna Forman-Barzilai’s idea of Smith’s thought as a ‘commercial cosmopolitanism’.24 The internationalist and cosmopolitan approach taken in this article therefore draws elements from both the Grotian tradition and the cosmopolitan thought of Smith. The main institution of internationalism is ‘public international law’,25 the latter two words of which were, according to Bull himself,26 first used by Jeremy Bentham (1748-1832) in 1789.27 Grotius’ expression for one part of what we think of as public international law is ‘the Law of Nations’ (ius gentium voluntarium), which as the term suggests is a creation of ‘the Will of all, or at least of many, Nations’.28 The Law of Nations is not therefore confined to relations between states, but ‘embraces all law ... which has been sanctioned by the practice of all nations or of many nations’.29 Smith meanwhile characterises ‘the Laws of Nations’ as ‘the claims which one nation may have upon another’,30 rather in the manner of Bentham. In Grotius (and perhaps also in Smith),31 public international law also comprises a non-volitional element: natural law, or ‘natural right’. Anathema to Bentham,32 natural law in the Grotian system is: ‘the ever-present source for supplementing the voluntary Law of Nations, for judging its adequacy in the light of ethics and reason, and for making the reader 23 F Forman-Barzilai, Adam Smith and the Circles of Sympathy: Cosmopolitanism and Moral Theory (Cambridge, Cambridge University Press, 2010) 196. 24 Ibid, ch 6. 25 Bull (above n 14) 52. 26 Bull (above n 21) 34. 27 Ibid. 28 Grotius, Rights of War and Peace (above n 7) 162-163 (I. 1. XIV). 29 Lauterpacht (above n 18) 330. 30 A Smith, Lectures on Jurisprudence [1762-63/1766], RL Meek, DD Raphael and PG Stein (eds) (Indianapolis, Liberty Fund, 1982) 544. 31 Smith, Theory of Moral Sentiments (above n 6) 179 (III, iii). 32 Bentham describes natural law as ‘an obscure phantom’: J Bentham, An Introduction to the Principles of Morals and Legislation [1789], JH Burns and HLA Hart (eds) (Clarendon Press, Oxford, 1996) 298.
- 44. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 36 aware of the fact that the will of States cannot be the exclusive or even ... the decisive source of the Law of Nations’.33 What public international law does not however include is ‘Civil Right’, that ‘which results from the Civil Power’, the power ‘which governs the state’ itself.34 Such civil right, or ‘municipal law’,35 includes what Smith thinks of as ‘public law’.36 The expression is not used in contradistinction to criminal law, and not in an exclusive sense, but by way of contrast with international law and with natural law.37 Throughout the article, I view international tax law as standing in a particular relationship with cognate disciplines. As part of public international law, it supports the international order contended for by international relations theorists. To the extent that international taxation is part of international political economy, it also supports the ordering of global markets suggested by the contentious conception of international political economy as a branch of international relations.38 International economic law, in which international taxation us beginning to assert itself, is increasingly regarded as a major part of public international law.39 My article is therefore an analytical and interpretative discussion of the ethical framework of international taxation law. It is a study in the history of ideas, with some tentative suggestions for future debate, and it is to the contentious question of relevance that I turn next. 33 Lauterpacht (above n 18) 330. 34 Grotius, Rights of War and Peace (above n 7) 162 (I. 1. XIV). 35 Lauterpacht (above n 18) 329. 36 Smith, Lectures on Jurisprudence (above n 30) 433-37; Grotius, Rights of War and Peace (above n 7) 259 (I.3.VI). 37 M Koskenniemi, ‘The Advantage of Treaties: International Law in the Enlightenment’ (2009) 13 EdinLR 27- 67, 53. 38 But see M Watson, Foundations of International Political Economy (Basingstoke, Palgrave Macmillan, 2005) 14-19. 39 See J Faundez, ‘International Economic Law and Development: Before and After Neo-Liberalism’ in Faundez and Tan (eds) (above n 4) 10-33, 10.
- 45. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 37 B. SHARED CONCERNS AND HISTORICAL SITUATIONS Having indicated the purpose of the article, and briefly mapped out its parameters, I want now to confront the obvious, and difficult, question. We are concerned, to put it baldly, with the question of the ethics, and morals, of tax fairness. Why invoke Grotius and Smith, early modern thinkers as they are, to illuminate an emanation of a postmodern, post-colonial, era? Neither of these thinkers could possibly have envisaged, surely, that matters would have fallen out as they have. This is the tricky, pressing, question of relevance, and it weaves its way through each of the subsequent stages of my discussion. My answer is that, absent these thinkers, we have no historically grounded, and therefore plausible, response to what is essentially a question born, not of our time, but of theirs: ‘It is always good [as Karel Wellens writes] to articulate the often unconscious ethical underpinnings of one’s approach towards international law'.40 Moreover, the need for the integrity of national tax systems is something that both Grotius and Smith acknowledge, although for different reasons.41 Either side of this relevance question, to be developed further, are two other ones. What is it, we may ask, in the nature of the thought of Grotius, and of Smith, that makes them apposite subjects for consideration? This, if anything, is a subtly disguised formulation of the background issues of who each of these men were, and what they had to say about the disciplines of what we now think of as international political economy and international economic law. Secondly, and more broadly, we might ask, what is it in the historical situation of each of these figures that seems so relevant to us, placed as we are in this fractured, anxious, post-modernity? It is Quentin Skinner, discussing the interpretation of early modern philosophy, who strikes with elegance what might seem to be a fatal blow. There is, he writes, no point in asking ourselves what, say, Grotius, or Hobbes, or Kant, or Smith, would have made of the policy questions of today, since we cannot even approach their meaning without immersing ourselves in the particular controversies with which they were engaged Moreover, even having done so, the response that we are likely to get 40 Wellens (above n 17) 5. 41 Smith propounds certain maxims of effective taxation, equality, certainty, convenience and cost-effectiveness (see Smith (above n 5) 415-18, discussed in J Snape, The Political Economy of Corporation Tax: Theory, Values and Law Reform (Oxford, Hart Publishing, 2011) 2, 180-81); Grotius endorses Aristotle’s view that the capacity to impose taxes is central to the very idea of the state itself (see Grotius, Rights of War and Peace (above n 7) 257n).
- 46. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 38 will be so bounded by the prejudices of the particular historical thinker, that we shall probably have to reject it out of a sense of conflict with our own values.42 There is, of course, some wisdom in this. But there is even more, perhaps, in Martin Wight’s observations about a searingly predictive passage from the work of one of Grotius’ most distinguished disciples,43 Baron de Montesquieu (1689-1755) on the arms race: ‘[N]o sooner [writes Wight] is one in the posture of recognizing a perennial truth in Montesquieu’s words, than all one’s progressivist instincts revolt ... [O]ur protest is born of knowledge and experience and not, like his, of intuition alone; because our knowledge is greater our strength to break the circle is greater; and to accept Montesquieu’s words as a description of our own predicament would be treason to mankind, because it implies the fatalistic doctrine that what has been will be.’44 We flatter ourselves, in other words, to think we have broken the bonds of Enlightenment thought. Some might say that such issues as the proper ends of tax policy have remained stubbornly unaffected either by events or ideas. The question of fairness in taxation, what Smith himself called ‘equality of taxation’, is largely the same now as it was when he rationalised it sometime in the early 1760s.45 Others would say, moreover, that the predicament is identical, since, not only does Smith advocate proportional taxation, he argues (albeit faintly) for taxes to be redistributive.46 But these are matters to which I shall return later. For the present, I would like to concentrate just on the simple assertion that questions of tax policy are even now formulated, to a very large extent, in precisely the terms that would have been familiar to an eighteenth century moral philosopher 42 Q Skinner, ‘Meaning and Understanding in the History of Ideas’ (1969) 8 History and Theory 3-53, 42-43; see, in the context of the relevance of Locke’s thought, P Kelly, Locke’s Second Treatise of Government (London and New York, Continuum, 2007) 16-18. 43 Snape (above n 5) 79-80. 44 M Wight, ‘Why is there no International Theory?’ in H Butterfield and Wight (eds) (above n 14) 17-34, 27. 45 See Smith, Lectures on Jurisprudence (above n 30) 530-535. 46 Smith, Wealth of Nations (above n 5) 434 (V.II.ii).
- 47. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 39 such as Adam Smith. An example of this, of course, would be the tendency of ill- conceived taxes to discourage investment in a particular jurisdiction.47 Wight suggests that the obstinacy of certain questions may be even more plausible in the international context than the domestic one. Observing that states are ‘moral’ rather than ‘physical’ essences, he quotes the saying of Smith’s contemporary, Edmund Burke (1729-97), that states’ internal affairs ‘are infinitely uncertain and much more obscure, and much more difficult to trace, than the foreign causes that tend to raise, to depress, and sometimes to overwhelm a community.’48 Note however, I am not saying that the answers to the questions we identify would have been recognisable to the Eighteenth Century in the same way. I am simply arguing for some communality between the questions. Such an argument as this is entirely supported by Skinner’s own approach to the history of ideas.49 Moreover, to the extent that a broken tax system undermines the very possibility of statehood, topical issues surrounding developing countries today would have been intelligible even to Grotius.50 In making these points, I am of course highlighting the fact that anxieties about taxation are questions of early modernity and of the European Enlightenment. Tax policy is pre-eminently about the prosperity of the ‘nation state’, which Grotius characterises as ‘a compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit’.51 Grotius seeks to make sense of a world in which the fifteen hundred-year old unity of Church and Empire is being superseded by an assortment of independent states,52 whose tensions and rivalries stand in need of some ‘right ordering’.53 In this, he is able to rely on the work of Jean Bodin (1530-96),54 as a theorist of the absolutist French state, just as, much later, Smith is able to rely on Montesquieu as a theorist of the softening effects of 47 Smith, Lectures on Jurisprudence (above n 30), 326, 344. 48 E Burke, Letters on a Regicide Peace, quoted by Wight (above n 44) 26. 49 Skinner (above n 42); Lauterpacht (above n 18) 327. 50 Grotius, Rights of War and Peace (above n 7 and n 45). 51 Ibid, 162 (I. 1. XIV). 52 Lauterpacht (above n 18) 324-25. 53 M Loughlin, Foundations of Public Law (Oxford, Oxford University Press, 2010) 73-83.
- 48. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 40 commerce.55 Whilst he did not live to see the Westphalian peace, in 1648,56 Grotius’ consciousness had certainly been shaped by the savagery to which the Thirty Years’ War had given rise: ‘I observed throughout the Christian World a Licentiousness in regard to War, which even barbarous Nations ought to be ashamed of: a Running to Arms upon very frivolous or rather no Occasions; which being once taken up, there remained no longer any Reverence for Right, either Divine or Human, just as if from that Time Men were authorized and firmly resolved to commit all manner of Crimes without Restraint.’57 The period of a century or so after about 1550 had also seen the expansion of European horizons both eastwards and westwards. Grotius sought to supply a natural law political morality for each of these enterprises.58 In relation to the latter, he produced his early work, now known as the Free Sea (1609),59 intended to legitimate the activities of the Dutch East Indies Company with regard to the Spanish, in the newly-encountered lands across the Atlantic Ocean. In relation to the former, much later on, and having been a political prisoner, he produced The Rights of War and Peace (1625),60 still seen as one of the foundational texts of international law. A massive display of classical and Biblical erudition, the book, published originally in Latin in Paris, painstaking enumerates those rights, the infringement of which justifies war,61 and equally importantly those whose infringement does not. 54 J Bodin, On Sovereignty: Four chapters from The Six Books of the Commonwealth [1576], JH Franklin (ed and trans) [1576] (Cambridge, Cambridge University Press, 1992) 81. 55 Snape (above n 5) 77-78. 56 PH Wilson, Europe’s Tragedy: A History of the Thirty Years War (London, Allen Lane, 2009) 751. 57 Grotius, Rights of War and Peace (above n 7) 106 (Preliminary Discourse. XXIX); E Voegelin, History of Political Ideas Volume VII: The New Order and Last Orientation, J Gebhardt and TA Hollweck (eds) (Columbia and London, University of Missouri Press, 1999) 52-54. 58 Tuck (above n 20) ch 3. 59 H Grotius, The Free Sea [1609], D Armitage (ed) and R Hakluyt (trans) (Indianapolis, Liberty Fund, 2004). 60 Grotius (above n 7). 61 Grotius, Rights of War and Peace (above n 7) 393-394 (II.1.V): Lauterpacht (above n 18) 311.
- 49. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 41 Grotius’ comments on taxing rights long predate the emergence of the discipline of political economy. They tend to occur in the context of the rights and duties of sovereigns.62 Nonetheless, his work does contain an articulation of certain rights, especially property rights, without which a science of political economy is not possible. Grotius provides a natural law framework for such an enterprise, which is similar to, yet subtly different from, the scholastic natural law of St Augustine or St Thomas Aquinas. It is this reconceived notion of ‘Natural right’, or natural law, founded upon reconciling a science of mankind with the purposes of God, which Smith subsequently develops as an important element in his theory of political economy,63 and in conjunction with which he builds his own theory of taxation. What Grotius discerns is an ordering of the world founded, not upon scholastic notions of the transcendent nature of human beings, but upon natural right conceived in terms of their true interest in behaving rationally.64 . Reason, not the ‘Passions’, is the best guide to where this true interest lies.65 Grotius’ theory has affinities with Machiavelli,66 but it is more than simply a recommendation to advantageous conduct.67 States adhere to rule bound policies, especially though treaties, out of a sense that, if they do right, then others will do so too. This is emphatically not about short-term advantage, as in the Hobbesian tradition, but about measuring international relations by the standards of natural law. Man’s natural ‘Desire of Society’, Grotius says, means that ‘the Saying, that every Creature is led by Nature to seek its own private Advantage, expressed thus universally, must not be granted’.68 Indeed: 62 See, eg, Grotius, Rights of War and Peace (above n 7): 205-06 (I. 2. VII); 257-259 (I.3.VI); 300-01 (I.3.XVI); 444-45 (II.2.XIV); 550-52 (II.5.XXI-XXII); 576 (II.6.XII); 646-48 (II.8.X); 877-79 (II.16.XXVII); 892 (II.17.XVI); 1180-82 (II.26.V); 1243-1245 (III.2.VII); 1280 (III.4.VI); 1465 (III.12.IV). 63 Koskenniemi, ‘Advantage of Treaties’ (above n 37) 64. 64 J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford, Oxford University Press, 2011) 42-48. 65 Grotius, Rights of War and Peace (above n 7) 91 (Preliminary Discourse. XIII). 66 Whom Grotius does not actually mention in Rights of War and Peace (see Lauterpacht (above n 18) 340, who regards this fact as ‘startling’). 67 Lauterpacht (above n 18) 333. 68 Grotius, Rights of War and Peace (above n 7) 81 (Preliminary Discourse. VI). But see Tuck (above n 20).
- 50. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 42 ‘NATURAL RIGHT is the Rule and Dictate of Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature, and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature.’ This last sentence emphasises, as John Finnis writes, that Grotius’ work does not, contrary to Lauterpacht,69 mark a secularising of natural law. God’s decree as to what is right still enjoins that ‘the right be done (as a matter of obligation) and that the wrong be avoided (likewise)’.70 Such would be so, says Grotius in a rhetorical flourish, ‘though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs’.71 So conceived, natural law, or natural right, is a series of ‘norms’: what international law would require, were right reason properly deployed. If this is correct, Hume’s famous criticism of the fallacies of natural law72 loses much of its force. To reason in this way is to reason prudentially, ‘to discern things pleasant or hurtful’ and to understand what is ‘contrary to Natural Right, that is, the Laws of our Nature’.73 Grotius, obviously, has nothing directly to say about the kind of taxation policy with which we are concerned. He does, however, establish the framework of a discourse that seems to us now so obvious that it is deeply embodied in the assumptions of any discussion we may have on contemporary tax policy issues. That is why, although our own textbooks on international political economy often begin with Smith,74 Grotius is rarely - if ever - mentioned. Neither Smith, nor Grotius, quite thinks therefore in accordance with the scholastic tradition, and, to the extent that we, too, may struggle to apply that tradition directly to our public policy debates, neither do we. Such an assertion is enough to carry with 69 Lauterpacht (above n 18) 333. 70 Finnis (above n 64) 44. 71 Grotius, Rights of War and Peace (above n 7) 89 (Preliminary Discourse. XI). 72 D Hume, A Treatise of Human Nature [1740], LA Selby-Bigge and PH Nidditch (eds), 2nd edn, 469—470 (III.1.i). 73 Grotius, Rights of War and Peace (above n 7), 87 (Preliminary Discourse. IX). 74 Watson (n 38 above).
- 51. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 43 it the idea that there may be something in our circumstances that unites the preoccupations of us, in our time, and the early moderns, in theirs. Before moving on, so as to locate legal scholarship on international taxation within this discussion, I would like briefly to elaborate on this point, since it provides a rich cultural context for the final part of the article. Hugo Grotius, as I have already suggested, was, first and foremost, a natural lawyer. The Free Sea was a response to a specific commercial commission, and The Rights of War and Peace was the fruit of a period of incarceration due to Grotius’ involvement with the deposed Grand Pensionary of Holland, Johan van Oldenbarnevelt, executed by the sword in 1619.75 Smith, too, though long thought of as an economist, has increasingly been conceived of as a moral, or even a political, philosopher initially through the historical work of Donald Winch,76 and latterly through that of Amartya Sen, who places Smith’s ‘theory of moral sentiments’ at the heart of his own political philosophy.77 The Wealth of Nations, of 1776,78 especially when read with the 1759 The Theory of Moral Sentiments,79 Smith’s much earlier work of moral philosophy, provides an understanding, not just of economic activity and of the personal morality that guides it, but of the basis of prosperous political societies. It does so on the basis of a very similar natural law view of ethics,80 wedded to what Smith believes is a ‘natural [human] inclination’ to ‘beneficence’.81 I shall return to these points of comparison between Grotius and Smith. For the present, though, I would simply like to highlight that each work is the product of a need to find a philosophy for commercial political societies. The impulse to trade, says Grotius, cannot and should not be restrained: 75 Tuck (above n 20) 94-95. 76 See, eg, D Winch, Riches and Poverty: An intellectual history of political economy in Britain, 1750-1834 (Cambridge, Cambridge University Press, 1996) esp ch 4. 77 A Sen, The Idea of Justice (London, Allen Lane, 2009). 78 Smith, Wealth of Nations (above n 5) 79 Smith, Theory of Moral Sentiments (above n 6). 80 G Myrdal, The Political Element in the Development of Economic Theory, P Streeten (trans) (London, Routledge and Kegan Paul, 1953) ch 7. 81 DD Raphael, The Impartial Spectator: Adam Smith’s Moral Philosophy (Oxford, Clarendon Press, 2007) 76, referring to Smith, Theory of Moral Sentiments (above n 6) 268-276 (VI.II.iii).
- 52. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 44 ‘[I]t is lawful [he says] for any nation to go to any other and to trade with it ... This right ... equally appertaineth to all nations, which the most famous lawyers enlarge so far that they deny any commonwealth or prince to be able wholly to forbid others to come unto their subjects and trade with them.’ 82 Smith, no less than Grotius, regards as axiomatic the idea of economic relations as the catalyst of international political order. He characterised The Wealth of Nations as an ‘... attack ... upon the whole [mercantilist] commercial system of Great Britain’.83 The Dutch republic of the seventeenth century was perhaps the first commercial society of modernity, the earliest in which we see the prototypes of commercial phenomena familiar to us today. There we find ‘the embarrassment of riches’ described so vividly by Simon Schama: a wealthy merchant class, with the ease and funds to commission, buy and enjoy the works of Rembrandt and, rather later, of Vermeer; vast inequalities between rich and poor (sometimes disconcertingly and ambiguously depicted in the same paintings);84 and the nascent idea of secondary commodities markets, such as the existence, so Anna Pavord tells us, of a market - in seventeenth century Amsterdam - in tulip futures.85 A visitor to present-day Amsterdam can still experience a city vibrant with this practical ethos of commerciality. As with Grotius, so too with Smith, who belonged to a generation of Scottish intellectuals anxious to map out a future for Scotland, not as the backward, violent, feudal, society immortalised subsequently in the novels of Sir Walter Scott, and which had received its terrible quietus at the Battle of Culloden in 1745, but as a commercial and polite society aligned with the commercial and industrialising England south of the border.86 The cultures that produced the political philosophies 82 Grotius, The Free Sea (above n 59) 10, 11; Grotius, Rights of War and Peace (above n 7) 444 (II.2.XIII). 83 Smith to Andreas Holt, Danish Trade Commissioner (October 26, 1780) in The Correspondence of Adam Smith, EC Mossner and IS Ross (eds), 2nd edn (Indianapolis, Liberty Fund, 1987) 251. 84 S Schama, The Embarrassment of Riches: An Interpretation of Dutch Culture in the Golden Age (London, William Collins, 1987) 573. 85 A Pavord, The Tulip (London, Bloomsbury Publishing, 1999) ch 4. 86 I Hont and M Ignatieff, ‘Needs and justice in the Wealth of Nations: an introductory essay’, in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, I Hont and M Ignatieff (eds) (Cambridge, Cambridge University Press, 1983) 1.
- 53. TULIPS AND JUTE:GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS 45 both of Grotius and of Smith had this in common: both were those of commercial and consumer societies, or at least of societies aspiring to be such. And the political morality which each of these thinkers enshrines is commensurately focussed therefore on the conditions necessary to promote such a society. Chief among these were, of course, ideas of economic efficiency, of the security of property rights and of the sanctity of contracts, but taxation, too, had its part to play. Martin Wolf points to the fundamental historical similarity between the political values of each of England and Holland.87 For a period, indeed, in the early eighteenth century, as Lisa Jardine has shown, England’s political and financial institutions, as well as its aesthetic tastes, were formed by the Dutch.88 Others have pointed out that, historically speaking, British taxes owe much to Dutch exemplars.89 What I hope to have achieved so far is a willingness of the reader to assent to the relevance of these two thinkers to current debates on fairness in international taxation. This is clear, not only from the nature of taxation debate, but also from the foundational status of Grotius and of Smith as theorists of modernity. The historical affinity of British and Dutch commercial circumstances is yet a further reason for placing the two thinkers in the context of contemporary debate. C. INTERNATIONAL TAX LAW AND ITS DOMINANT MODES One undertow of the article has been that arguments on international tax law and policy embody something of a paradox. Whilst being of fundamental political, ethical and moral importance, they are, too, arguments of great technical difficulty. In this next stage of my discussion, I would like to unpack the constituent elements of the paradox. I seek to explain why the arguments are at the same time both compellingly important, yet hard to unravel. Before attempting this task, however, I want to indicate briefly what I take to be the strengths and weaknesses of contemporary international tax law scholarship, with regard both to illuminating the problems, and to shedding light on possible solutions. I then use my conclusions, as to both the 87 See, eg, M Wolf, ‘Britain’s historic general election’, Financial Times (30 April 2010) 13. 88 L Jardine, Going Dutch: How England Plundered Holland’s Glory (London, HarperCollins, 2008) ch 12. 89 eg, stamp duties (Smith, Wealth of Nations (above n 5) 454-56).
- 54. THE IRISH YEARBOOKOF INTERNATIONAL LAW 2009-10 46 nature of the paradox, and the limitations of the dominant scholarship, to introduce and commend one particular mode of international tax law analysis that seems to me to provide a particularly valuable vehicle for a Grotian, and Smithian, analysis of international tax law. Essentially, my contention about international tax law scholarship is that it is good at illuminating the nature of particular taxation problems, but not at pointing the way to ameliorating them. I can illustrate this by reference to the main taxation issue underpinning my introductory remarks, since I propose to elaborate on this when I come to a discussion of the potential for Grotius and Smith to illuminate current international tax law concerns. The issue in question is the phenomenon of ‘transfer pricing’, known more informatively perhaps as ‘profit shifting’.90 What each of these interchangeable terms refers to, is the manipulation of taxation law rules to locate the profits of multinationals in those jurisdictions of the world where tax rates are lowest.91 To show how this is achieved, and thus what is at stake for the rest of the article, I need briefly to explain what is happening. By definition, the structure of multinational groups is such that a parent company in one jurisdiction (eg Britain) could have subsidiaries in many other jurisdictions (various European states, eg various African states). Each of the subsidiaries, as well as the parent company, would be subject to corporate income tax in the jurisdiction where they were resident. Taxation policy is so fundamental to the sovereignty of individual states that those tax rates are likely differ considerably, not, perhaps, as much between developed economies as between developed and developing economies. In these circumstances, it is often possible to transfer resources between companies in the multinational group at such prices that profits arise in the lower tax jurisdictions. Most countries, on the basis of treaty provisions inspired by the model treaty promoted by the Paris-based Organisation for Economic Co-operation and Development (the OECD),92 have tax provisions enabling the upward or downward adjustment of prices. Note, however, 90 BJ Arnold and MJ McIntyre, International Tax Primer, 2nd edn (The Hague, Kluwer, 2002) ch 4; RS Avi- Yonah, International Tax as International Law: An Analysis of the International Tax Regime (Cambridge, Cambridge University Press, 2007) ch 6; A Miller and L Oats, Principles of International Taxation, 2nd edn (Haywards Heath, Tottel Publishing, 2009) ch 14. 91 eg, Shaxson (above n 2) 11-12, 124-25. 92 OECD Model Tax Convention art 9; Miller and Oats (above n 90) 306.
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- 56. Until before himsuddenly There loomed a gateway grim and gray, Whose dark doors yielded to the sway Of his light pressing.
- 57. And lo! agarden gleaming, gay With flowers in dazzling array, And fountains flashing silver spray, And bowers shady; And on an emerald bank there lay A creature fairer than the day, Yet sadder than a moonlight ray— A wondrous lady. Abashed the Poet turned away, When a low voice entreated, “Stay! Read me that little Roundelay I heard you singing.” It was as though upon him lay A spell that forced him to obey, And he recited it straightway In voice clear ringing. A dreamy, languid, far-away Expression dims her eyes as they, Like violets at droop of day, Are closing—closing. The Poet ends his Roundelay, And turns to hear what she may say, And finds to his complete dismay The Princess dozing. Then rose a cry: “She sleeps! Hurray! The Princess sleeps! Oh, joyful day! The spell is broken—Rise, I pray, Oh, sweet song-maker.” ’Twas the King spoke “Arise I pray:
- 58. Twas the Kingspoke, Arise, I pray: I make you Laureate this day; My daughter’s hand, too, by the way, Is yours—don’t wake her.”
- 59. S A MODERN DIALOGUE cene—On ManhattanIsland. Time—To-day. Hour—Ten-thirty. Persons of the play: Sibyl. A dream of beauty, half-awake, In filmy disarray—about to take Her morning tub. In speech with her the while Is Robert. He is dressed in riding style.
- 60. Sibyl—Why, Bob, it’syou! They got your name all wrong. I’m sorry that I made you wait so long. Bob—Only six minutes by my watch—it’s true A minute seems a year, awaiting you! But Time is merciful and I rejoice That I am still alive to hear your voice. Sibyl—A very pretty speech, for you, indeed. But what extenuation can you plead For waking ladies at the break of day From peaceful slumbers, sir! Bob— Oh, come, I say! It’s half past ten! Sibyl— Well, it was nearly three Before I got to bed! Bob— Good gracious me! I’m sure I’d no idea it was so late. Why, I was riding in the Park at eight And looked for you. I own I felt abused; Last night you said—— Sibyl— I beg to be excused From keeping foolish promises, when made At two A.M., by moonlight. I’m afraid My memory’s no better than a sieve. So you expected me? The Lord forgive Your trusting soul! Bob— It is His métier!
- 61. Sibyl—Don’t be outrageous,or I’ll run away. Bob—Ah, no; don’t go. I will be good, I swear! ’Twas a quotation, Heine, or Voltaire, Or some fool cynic fellow. By the way, If you have nothing on, what do you say To breakfasting with Peg and me at noon At the Casino? Sibyl— Well, that’s rather soon; I can’t be ready for an hour or more. Bob—Come as you are, you know that I adore Your ladyship in any sort of gown; Besides, there’s not another soul in town. Come as you are; there’ll only be we three. Sibyl—Well, I like that! It’s fortunate for me This is a telephone and not that new Invention one can talk and see through, too! What’s that you said? Bob— I didn’t speak at all I only thought. Sibyl— Well, don’t! Suppose we call The breakfast half past one instead of noon? Bob (joyously)— Then you will come? Sibyl— I swear! Bob— Not by the moon?
- 62. Sibyl (laughing)— No, youmay count on me. Now I must fly. One-thirty—don’t forget—Good-by! Bob— Good-by! (They ring off.)
- 63.
- 64. Now whither areyou flying And on what game intent, Cupid? There’s no denying On mischief you are bent. What is the use of trying To look so innocent? What means your empty quiver? Did heart of some coquette Your golden arrows shiver? Or did you, boy, upset Your darts in Lethe’s river, Or break them in a pet? What is it you’re concealing, My patience to annoy? A heart you have been stealing, Or some such foolish toy? Come, now—no double-dealing! Out with it—Cupid, boy! “I have,” quoth Cupid, shyly, “A thing wherewith to hew Cold hearts” (he hinted slyly That such a heart I knew). “’Tis recommended highly— An ice-pick—what say you?” Gravely I shake my finger At Cupid—“’Tis indeed The very thing to bring her To reason, boy, so speed!
- 65. , y, p Fly,Cupid! Do not linger— Jove grant you may succeed!”
- 66. THE JUDGEMENT OFST. VALENTINE
- 68. One tyme aYouthe of faire degree Didde looke upon a Mayde. Ah me, She was as coye as anye flow’r, She stole hys harte in thatte sayme how’r. Alle vainlie he to Love didde calle, Ye blinde Godde holp hym notte atte alle. To Bishop Valentine thenne hies Ye Youthe, ye Damosel likewyse, Ande each ’gan tell hys tayle of griefe. Each sayd ye other was ye thiefe. “Zounds!” cried ye Sainte, “this brawle must cease. I’ll binde ye bothe to keepe ye peace.” Whereat ye twain in nowyse loath, “Pray then wyth one bond binde us bothe.” Loude laughed ye Sainte, “Perdi! ’Tis done!” And made ye Youthe and Mayden one. Lady, anent this suit of mine In search of precedents, I waded Through ancient lore, and found this fine Old Judgment, in a parchment faded. If you will ponder the last line And be by wise example aided, We, too, will make Saint Valentine Our Judge, and—compromise, as they did.
- 69.
- 70. Here’s to theBachelor Girl Who fain her charms would cloister. She is a precious pearl That will not leave the oyster. She is a proud sweet-pea That scorns to be a vine, And lean upon a tree Or round a stick entwine. “What! lean upon a stick! Oh, no! I’m not that sort— I will grow branches thick And be my own support!” Beware, O pearl of price, Lest you be cast to swine; O proud sweet-pea, think twice Ere you refuse to twine! O Bachelor Girl, we drink Confusion to your plan; Beware, lest Fate shall link You to a Spinster Man! O change, ere ’tis too late, The choker tall and silly, The tweeds—the hat we hate, For something soft and frilly! Take off the stockings blue, (We will avert our gaze), Then will we drink to you Long life—and happy days!
- 72. We’ve drunk toeverything we know, From Lang Syne to The Ladies; Now, one more Toast before we go— Mephisto, Prince of Hades! When sober we are wont, ’tis true, To bury, not to praise him; But let us give the De’il his due, And toast him while we raise him. For tho’ his company we’re taught To shun, there’s no denying Mephisto never yet was caught Beneath false colors flying. He wears his coat and plume of red With candor so unswerving We must applaud, although ’tis said He took some points from Irving. Think of the Stage, think of the Church, Without their villain ruddy, If Old Nick left them in the lurch Without an understudy! As well “Othello” played without The Gentleman of Color, Or “Hamlet” with the Prince left out: Could anything be duller? A world from all temptation free Would sadly lack in flavor; And what would Untried Virtue be But Salt without its savor? To pawn his soul the sinner goes More than half-way to meet him,
- 73. Yet when Mephistowould foreclose He does his best to cheat him. In Church to-day we sound his Knell, To-morrow at a revel We fall to raising him—and—well, We treat him like the Devil. So let us toast our Foe of Foes, Long may we live to rout him. Here’s to Mephisto! Goodness knows What would we do without him. And, good Mephisto, do not spurn Our Toast with mocking laughter, Nor yet the compliment return— By Toasting us hereafter!
- 74. A CORNER INCURLS Once on a time when Men were Bold And Women Fair—to be precise— A Princess lived whose Hair was Gold Beyond the Dreams of Avarice; Beauty she had and Wealth untold, Besides a Fabulous Amount Of Jewels rare and Crowns of Gold, And Suitors more than she could count. Such Suitors! Tho’ her Fingers Fair Had been as leaves upon the Trees They still were far too few to wear The Rings they offered, on their Knees.
- 75. In Coaches, Caravans,and Ships The Suitors came in Flocks untold, Happy to kiss her Finger-tips And beg from her a Lock of Gold. For tho’ she seemed to Cupid’s Dart Impervious, and would not share The smallest atom of her Heart, She was most lavish with her Hair.
- 76. To all whocraved the Golden Boon She gave, until one Night her Maid Exclaimed, “Alas! Your Highness soon Will not have Hair enough to braid!” Next day the Court was in a state, The usual audience was refused, A Notice hung upon the Gate— “The Princess begs to be Excused.” Daily the Throng of Suitors grew And clamored madly at the door, Until at length they formed a queue Extending for a mile or more. The Chancellor was in despair. “Princess, it comes to this,” he said, “That either you must lose your hair Or I must surely lose my head!” The Princess turned away her face. “Oh, dear,” she cried, “this grieves me sore; It will be hard to fill your place— You were a first-rate Chancellor! “But do not grieve—I have a plan To keep your head and save my Pride.” Then to the marble gate she ran, Unloosed her hair, stepped forth, and cried: “Brave Suitors, look upon this Gold, This mint of Curls—lo, I present A share to each of you—behold
- 77. My Notes ofCurl—at five per cent!” A cheer rose from a Thousand Throats; The panic passed—and months flew by. The Princess issued Tons of Notes, When lo!—a Bolt from out the Sky— A message came, brought by a Churl: “Pont Morgan, Sultan of Peru, Has bought up all your Notes of Curl, And all your Notes are falling Due!” The Princess grew distraught with fears By Day. At night she tossed in Bed, Dreaming an Awful Pair of Shears Hung by a Hair above her Head.
- 78. At last theFatal Morning came, And with it came Pont Morgan, too, With Awful Shears to press his claim, And an Enormous Retinue. “The Law is Just!” the People cried; “And She the Penalty must pay!” The Shears their Awful Jaws spread wide, When suddenly a Voice cried, “Stay!”
- 80. An Unknown Damsel,Pale and Proud, And clad in Silken Cap and Gown, Strode swiftly through the gaping crowd, And struck the Awful Scissors down. “Beware!” she cried, “Proud Sultan, ere You touch a Hair of that Fair Head; For know you not that Every Hair Is numbered—as the Prophet said? “Show me the Notes—see, here is writ A number plain across each Bond, And you may only draw for it The numbered Hair to correspond. “So pause, Pont Morgan, ere you draw A Single Hair from that Gold Head; If it be wrong—then by the Law Your Life and Lands are forfeited!”
- 81. “Hurray! Hurray! TheMaid is Right!” The People cried with mad uproar. The Sultan turned a deadly white, And fell in Fits upon the Floor. “O Lady, whosoe’er you be, Claim what you will in all my Land!” The Princess cried. “I am,” said he, “Not Maid, but Man—I claim your Hand.” “’Tis yours! Right gladly will I be Your Bride—for in Creation’s Plan I never dreamed to find,” said she, “A Portia’s Logic in a Man!”
- 82. THE HYDRANT- HEADED MONSTER Beingan epistle to Paul. From Temperance
- 83. It comes! Themonster rearing high, Against the lurid western sky, Its horrid, hissing Hydrant Heads, While o’er the shuddering land it sheds A dreary pall of waste and woe And chilling streams of H2O. Now saints defend us, one and all, And most especially Saint Paul, Thou patron saint of Honest Fighting And Common Sense and Letterwriting, Who one time, for his “stomach’s sake,” Bade Timothy the wine cup take; Stay now this Water Fiend’s advance And save thy servant Temperance, Ere Abstinence, that glum wet-nurse Of Dire Dyspepsia, Chills, and worse, Blow out the Lights of Love and Mirth, And so asphyxiate the Earth.
- 85. TO MY TOYCANARY ee saffron sage, Make-believe bird, fluffy, absurd, In mimic cage Through beady eyes you scrutinize A Noisy Age.
- 86. You boast no“Tree,” No painted shell your Natal Cell, Your Pedigree, Neatly displayed, reads simply, “Made In Germany.” What do I care Tho’ to fresh seed you pay no heed— Since on Plain Air You gayly feast? Of that at least I have to spare. You do not pour From your wide bill a gladsome trill, Thanks be, therefore! The best of tune, repeated, soon Becomes a bore! You simply stare When I exclaim “Wilhelm” (your name); You do not care For William Hohenzollern, tho’ His name you bear. What would you say If William the Unsilent, he Should come your way? And fume, and pout, and storm—and shout, “Lèse-Majesté!” ’Twould vex his pride To see you hold that Gift of Gold To him denied
- 87. To him denied— “Silence,”the sole and only rôle He has not tried. Fear not his grim, Imperial ire; no torture dire, No dungeon dim, Your fate shall be: This land is free— At least from him. Wee saffron sage, Pipe all day long your silent song While by your cage, Musing, I let my soul forget The Noisy Age.
- 88. Welcome to ourwebsite – the perfect destination for book lovers and knowledge seekers. We believe that every book holds a new world, offering opportunities for learning, discovery, and personal growth. That’s why we are dedicated to bringing you a diverse collection of books, ranging from classic literature and specialized publications to self-development guides and children's books. More than just a book-buying platform, we strive to be a bridge connecting you with timeless cultural and intellectual values. With an elegant, user-friendly interface and a smart search system, you can quickly find the books that best suit your interests. Additionally, our special promotions and home delivery services help you save time and fully enjoy the joy of reading. Join us on a journey of knowledge exploration, passion nurturing, and personal growth every day! ebookbell.com