Is U.S. obligated to provide free electricity to Afghanistan?

August 7

The U.S. occupied Afghanistan for perhaps a decade, continues to maintain a troop presence there, and retains significant “administrative powers,” like killing people in drone strikes.

Yet no one thinks that this entails an obligation for the U.S. to provide electricity to Afghanistan, even during the occupation. Indeed, only 30% of Afghanistan’s population currently has access to electricity, so if there is such a duty, the U.S. is massively remiss.

And soon it is going to be less, as the U.S. does to Afghanistan what Israel supposedly cannot do to Gaza - cut off the free electricity they had been supplying:

When the United States stops funding power generation in Afghanistan’s southern city of Kandahar next year, the lights are set to go out and factories will fall idle, playing into the hands of Taliban insurgents active in the area.

But regular power in the city is still years away, and when the United States finally ends subsidies – currently running at just over $1 million a month – in September 2015, Kandahar could lose around half its severely limited electricity supplies, Afghan power officials and U.S. inspectors say.

Alex Bronstein-Moffly, a spokesman for the U.S. Special Inspector General for Afghanistan Reconstruction (SIGAR), said power shortages in insurgent heartlands would be a major setback 13 years after the Taliban were toppled in a U.S.-backed war.

“If electrical service to Kandahar is compromised it could end up endangering counter-insurgency and economic gains made over the last few years,” he said.

It is unlikely that America’s turning off the lights in Afghanistan will be denounced as a international crime by anyone, let alone the group of Israeli law professors has argued that Israel is obligated to provide free electricity to Gaza, despite hostilities. The professors wrote in response to a legal opinion from Prof. Avi Bell arguing the contrary.

I already recounted some problems with this view. Now let me continue. The professors did not, as far as I understand their memo, suggest that providing power to a hostile belligerent was a general rule of international law, but rather based on some special relationship between Israel and Gaza. Some combination of Israel’s occupation of Gaza and its current partial blockade require it to assume special duties to the territory, they claim. The blockade argument is really just a disguised objection to the legality of the blockade; in a proper blockade, one need not provide electricity.

The group opinion, unlike Bell’s, cites absolutely no state practice in support of its positions. The rule they describe is not contained in any treaty, nor has it ever been applied to any state. Moreover, it dismisses the examples of contrary state practice cited by Bell, by saying that “nothing can be concluded” from it because “international law is in constant development.”

They are saying Israel would be violating a rule that has not yet formed. They tacitly acknowledge the lack of a concrete prohibition elsewhere, by saying that one must find an obligation for Israel to provide electricity because otherwise there would be a “legal black hole,” where no rule of international law applies. This is hardly a problem unless one assumes, contrary to the Lotus principle, that international law has a rule for everything.

Another strange source of international law they cite is whether an “international body of import” would “view it favorably.” I do not know what a “body of import” is, and whether it includes such as eminences as the UNHRC. However, it is clear that the potential future view of a theoretical international body is not a source for determining international law. Past decisions of such bodies can be evidence of international law, but unlike domestic systems, the job of the international lawyer is not to “predict” how a “body,” which may or may not have jurisdiction, would view the matter.

It is worth noting that, unlike food, water and other essentials, access to electricity is not identified as a basic human right in any treaty; indeed, it was, to the consternation of some, omitted from United Nation’s Millennium Development Goals (H/T Irene Kelly).

When people invoke “rules” of international law in relation to Israel, it is always worth asking, where if anywhere, they have been applied before. If the answer is that they are based on an “emerging norm,” or on Israel’s unique factual circumstances, so that the rule by definition can only apply in one case – it means there is no rule.

And by the way, while the U.S. prepares to stop giving electricity to Afghanistan, Israel is repairing power lines to Gaza in order to continue providing power to Gaza. The power lines, in Israeli territory, had been damaged by Hamas rocket fire. The repair work is done under close security for fear of sniping from Gaza.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.
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