AN INTRODUCTION TO INTERNATIONAL LAW FOR AFGHANISTAN An Introduction to the International Law for Afghanistan First Edition Published 2011 Afghanistan Legal Education Project (ALEP) at Stanford Law School http://alep.stanford.edu [email protected] Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 http://law.stanford.edu Protected by Creative Commons License (No Derivative Works) i ALEP – STANFORD LAW SCHOOL Authors Morgan Galland (Student Director, 2010-11) Evan Berquist Stephanie Gosnell Handler Nicholas Reed Michael Sulmeyer Editors Ingrid Price (Student Co-Director, 2012-13) Julian Simcock (Student Co-Director, 2012-13) Tres Thompson (Student Director, 2014-15) Mansi Kothari Catherine Baylin Nicholas Reed Faculty Director Erik Jensen Contributing Faculty Editor Allen Weiner Rule of Law Program Executive Director Megan Karsh Program Advisor Rolando Garcia Miron AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Editors Wadir Wadeer Safi Yama Keshawerz Chair of the Department of Law Taylor Strickling, 2012-13 Hadley Rose, 2013-14 Mehdi Hakimi, 2014- ii PREFACE & ACKNOWLEDGEMENTS To understate the obvious, Afghanistan is currently undergoing a critical transition period. The Afghan people now face the immense task of rebuilding a society and a country. This challenge, while daunting, is also an opportunity for the youth of Afghanistan to effect momentous and positive change as the future leaders of their country. To seize this opportunity, however, Afghanistan’s human resources must be revitalized and replenished urgently. The decades-long conflict in Afghanistan has devastated the country’s infrastructure and severely stunted the institutions that are central to educating and cultivating leaders. Consequently, the country faces a dire shortage of qualified lawyers. This shortage is felt ever more keenly during this time of transition, as the participation of skilled legal practitioners is crucial to rebuilding the Afghan republic. In response to this need, Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007 as a student-initiated program dedicated to helping Afghan universities train the next generation of Afghan lawyers. ALEP mandate and goals are to research, write, and publish high- quality, original legal textbooks, and to build out an equally high-quality law curriculum at the American University of Afghanistan. ALEP’s broader vision is to help train the next generation of leaders who will drive Afghanistan’s reconstruction and recovery. The ALEP team would like to acknowledge those individuals and institutions who havemade this project possible. ALEP’s faculty advisors are Erik Jensen (Co-Director of Stanford Law School’s Rule of Law Program) and Stanford Law School Dean Larry Kramer. ALEP has obtained generous support from public and private sources, including a three-year grant from INL at the U.S. Department of State. The ALEP team would also like to acknowledge the support of Deborah Zumwalt, General Counsel of Stanford University and member of American University of Afghanistan’s (AUAF) Board of Trustees. ALEP is also delighted to continue its partnership with AUAF and is particularly grateful for the support of AUAF’s President, Dr. Michael Smith and Dr. Bahar Jalali, Department Chair of Political Science, Humanities and Law. Specifically for the Introduction to International Law, ALEP would like to thank Stanford Law School colleague, Allen Weiner, Senior Lecturer in Law with specialized expertise in international law. Professor Weiner provided extensive and invaluable chapter-by-chapter critical comments on an earlier draft of the manuscript. ALEP would also like to thank Dr. Wadir Wadeer Safi of the Faculty of Law and Political Science at Kabul University and Executive Director of the Independent National Legal Training Centre, for his insightful comments on the practice of international law in Afghanistan. And ALEP would like to thank Mr. Yama Keshawerz, of Al-Biruni University and a Visiting Scholar at Stanford Law School, particularly for his help on Chapter Three of this volume, which considers Afghanistan’s domestic absorption of international law. Erik Jensen, Faculty Advisor, ALEP Palo Alto, California, June 2011 iii TABLE OF CONTENTS Chapter 1: Introduction to International Law…………………………………………………………..1 Chapter 2: The Sources of International Law…………………………………………………………..11 Chapter 3: The Nexus Between International Law and Afghanistan’s Domestic Law……………....38 Chapter 4: International Human Rights Law…………………………………………………………..70 Chapter 5: The Peaceful Resolution of International Legal Disputes………………………………...90 Chapter 6: Use of Force……………….………………………………………………………………...116 Chapter 7: International Criminal Law………………………………………………….…………….170 Chapter 8: An Introduction to International Trade and Investment Law…………………………..201 Glossary……………………………………………………………………………………………..……227 iv CHAPTER 1: INTRODUCTION TO INTERNATIONAL LAW I. INTRODUCTION From cross-border trade, to membership in international organizations, to peace treaties, and to war, Afghanistan has benefited from and been regulated by international law. As an importer and exporter of goods, Afghanistan has signed commercial treaties and followed international norms that regulate the trade of goods across its borders and enable foreign investment. As a member of the General Assembly of the United Nations, Afghanistan has a voice and has voted on key measures that affect countries around the world. Through the creation of the state of Afghanistan, Afghanistan has benefited from peace-time treaties and norms that prohibit other countries from taking its land. And, Afghanistan has known more than its share of conflict and war. Yet even during these wars, international law has played an important role: it was used to validate the presence of international security forces on Afghan land, and it could lead to sanctions and trials for those who violated the Laws of War. As you can deduce from this list, international law is a vast field that touches many different aspects of our lives. This book will define and introduce international law by examining some of the most important fields of international law and then discussing their particular role and application in Afghanistan. To place this topic in a greater legal context, other books by the Afghanistan Legal Education Project have discussed matters of domestic law: our criminal and commercial law textbooks address legal rules and procedures meant to govern the behavior of individuals within Afghanistan. You can think of our Introduction to Law book as really an Introduction to Domestic Law. Now, for the first time in the series, we explore interactions and transactions that occur between Afghanistan and the outside world. It is here that you can begin to learn about international criminal law or international trade law. If you can think of the various substantive fields of law, chances are there are both domestic and international elements to almost all of them. Now that we have distinguished “international” law from much of the “domestic” law you have already studied, we can begin to discuss the core distinction within international law: that of public international law and of private international law. This book is primarily concerned with public international law, which addresses interactions and relations between nations. Nations like Afghanistan (or the United States for that matter) are the central actors of public international law. When nations sign agreements committing themselves to undertake certain responsibilities, such as an agreement to limit the proliferation of nuclear weapons, we can consider this a prime example of public international law. There is, however, another side to international law: private international law. Much of the work international lawyers engage in is on behalf of private clients that have needs, issues or claims with international implications. For example, an attorney may represent an Afghanistan corporation that sells goods to buyers in Pakistan, Tajikistan and Uzbekistan. What kinds of contracts will the client enter into with these buyers in different countries? A lawyer in a private international transaction rarely negotiates directly with the governments of Pakistan, Tajikistan, or Uzbekistan—merely with other private actors, like corporations, manufacturers, shops, and resellers. Indeed, one issue that recurs often in private international law is the determination of 1 which country’s laws apply in a dispute between parties of two different nations. If a company ships its product to Pakistan but the purchaser does not pay the entire agreed-to sum, the company will surely want to utilize any and all legal tools available to compel the Pakistani purchaser to make good on his commitment. But can the company sue under the laws of Afghanistan, Pakistan, or is the issue governed by an international treaty that all the countries have previously consented to, and the company, as a private actor, must follow? Private international law thus depends on the nature of each specific contract and the corresponding choice of law provisions. Each case will vary according to the relevant domestic law, and with the potential for some application of applicable international legal principles. In this book, however, we’ve chosen to focus on public international law because it is (a) a subject usually, but not always, studied before private international law, and (b) the scope of public and private international