The Usefullness of International Law.

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The Usefullness of International Law.; An Essay written by yours truly.
Topic Started: Jun 25 2009, 12:10 PM (124 Views)
thelovablevagabond	Jun 25 2009, 12:10 PM Post #1
Exceptionally Pretentious and Opinionated Posts: 289 Group: Members Member #524 Joined: Feb 4, 2009 Gender Male Religious Views Christian Political View Christian Socialist	International Public Law and International Order, Security and Justice; the flaws of a virtually consequence free, unequitable and politicized legal system International public law represents the willingness of some states to forfeit some sovereignty in return for political and economic gain, as well as legitimacy on an international level. However, the usefulness and function of international public law in practical terms is often debated. The impact of international public law on international order is the first area to be explored; in what has always essentially been defined as anarchy, can law hope to constrain powerful and self interested states with very little consequence for their actions? Security is the primary interest of any state, and international public law’s attempts to regulate it have varied in success. Justice in a humanitarian sense is most certainly a prerogative of the United Nations[1], however is international public law necessary in this area; that is, does international public law actually make the justice process more cumbersome? Therefore, the efforts of International public law in the moderation of states’ affairs International public law, in regards to sovereignty, at least attempts to shape the international order. Indeed, the UN charter almost immediately states its basis on the sovereign equality of its members,[2] although in practice this concept is much more difficult to enforce. Historically, sovereign equality is attributed to the Peace of Westphalia in 1648, when sovereignty was granted to most modern European states,[3] and its concepts have been kept alive ever since. However, in practice, a state’s level of sovereignty is affected by varying factors; Tucker notes that “the history of the international system is a history of inequality par excellence”.[4] Regardless of whether the UN dictates equality, the reality is that states will always judge states by their actions and internal function[5]. The war in Afghanistan offers an interesting insight into this particular issue. In 2001, The United States and its allies invaded Afghanistan on the basis of collective self defence.[6] This was rationalised by pointing out that the Taliban were sponsoring the terrorists that attacked the World Trade Centre in New York and the Pentagon in Washington D.C., hence Afghanistan itself had attacked the United States. This reasoning was accepted not necessarily because of its legality, but because of the power possessed by the United States and its allies. Simpson asserts that proof of this inequality in regards to self defence can be found when examining the consequences of such a rule if it was applied to the Kashmir Conflict,[7] or the condemning of Israel after its attack on Tunis, even though “Tunisia, then, actually provided a base for murderous activity against another state... The protection of sovereignty cannot be claimed by any government when it makes available such facilities”[8]. Clearly, although international public law had prevailed in the past to limit the terms of self defence, the power of the US and its allies rendered it useless. However impotent international public law may appear in preventing a more powerful state from acting as it pleases, as the Israeli attack on Tunis shows, it is certainly more effective at binding middle powers. This is not, however, entirely comforting as even though “middle powers, and even NGOs, may champion some norms and rules, these powers themselves may be products of the structure constructed by the great powers and may advocate what is consistent with hegemonic interests.”[9] Therefore, international public law does make an attempt to stratify and regulate the international order; however it is ultimately usurped by the more powerful states’ self interest. The level of co-operation in the international system is balanced against states’ desires for security. The extent to which international public law moderates state security is dictated mostly in the form of treaty; for example the Anti-Ballistic Missile Treaty 1972 between the US and the USSR or the Nuclear Non-Proliferation Treaty (1968). Historically, the Hague Convention (1899) is an excellent example of nations deciding on what is to be considered humane or inhumane in war (in this particular convention, this included dropping explosives from balloons). Treaties and conventions deal with the specifics of armament and defence, however the UN Charter in articles 39-51 defines a general protocol when responding to a security threat. This protocol appears wise in theory; however it only works if the underlying structure of the UN is not undermined, as it was in the Cold War. Except for two occasions (Rhodesia in 1972[10] and South Africa in 1977[11]), the Security Council did not use their powers under Chapter VII due to their deadlocked nature. In this sense, it could be said that the UN failed in regards to protecting the security of states on several occasions during the Cold War[12], and could fail again due to its own structure. This, combined with a consensus that “Americans might consider that international public law must on occasions apply to every state but the US, which should (in the eyes of such Americans) be unconstrained”[13]creates a severe inequality in the international system in which America and other great powers are allowed free reign and the middle and smaller powers are not assisted by their only hope of international help – the UN. The right to security and international aide in conflict is, therefore, applicable to all nations to whom the Security Council considers worthy, however the underlying flaws of the Security Council itself mean that the possibility of such an occurrence are very slim. To achieve justice is an objective of any legal system, and this is most certainly the case of the international legal system. However, international public law can be seen to be a stumbling block for would-be interventions, especially those which would require force. The example of Kosovo is one that clearly shows the inability of the international legal system to, firstly, enforce its rules in regards to Chapter VII and, secondly, its inability to intervene in what was genuinely a humanitarian disaster due to the politics of the Security Council and the hapless optimism of the UN Charter. The actions of NATO in 1999 were, even by the definition of participating states[14], illegal. However, as Tardy posits, the avoidance of the UN is justifiable, from a liberal approach, as “the protection of civilian populations, whose rights are massively scoffed at, should justify the provisional and exceptional bypassing of the Security Council.”[15] This approach, however, simply highlights the inefficiency of international public law in its regulation of force and governance of states as a whole. The second issue raised by Kosovo – that of the political structure of the Security Council and its apparent inability to deal objectively with humanitarian issues – is equally pertinent. The inevitable politicisation of the Security Council clearly limited its ability to act swiftly and justly with regard to Kosovo and also during the Cold War. The UN, interestingly, does have a mechanism to deal with these conflicts – the Uniting for Peace Resolution[16]. This resolution allows, in the event that the Security Council lacks “the unanimity of the permanent members” and hence “fails to exercise its primary responsibility for the maintenance of peace... the General Assembly shall consider the matter immediately with a view of making appropriate recommendations to Members for collective measures”.[17] This power is, however, still a cumbersome one – especially considering the two thirds majority required for uniting for peace and the lack of continuous meetings, and was not used in the Kosovo crises.[18] Another pertinent legal issue is that of state consent, one which the Security Council could not decide upon. International public law, in the form of the UN Charter, here confused issues; as Christine Gray posits, it was unclear who actually was in a position to give consent on behalf of Yugoslavia.[19] Therefore, it can be concluded that, as far as humanitarian intervention is concerned, the current system of international public law is not treating potential disasters, such as Kosovo, with an acceptable level of justice. To conclude, it would seem that international public law as a body has by and large failed its signatories. The international order, though existent, is influenced only on an intrinsic, theoretical level by international public law; states, especially super powers and even more so America, still act in self interest outside of international law. In regards to security, international public law is so compromised by its political basis that providing equitable grounds for defence for each state is made impossible. Finally, international public law simply fails to provide justice to those who need it the most, those living in humanitarian disaster zones, once more due to its influence from international politics. However, the UN Charter states that it is “we the people”[20] who are the source of its power. Therefore, is international public law useful effectively as a legal yardstick; a means for which to judge the actions of nations against a consolidated set of (supposedly) universal values? Perhaps, but for any system of law to succeed, those under it must be bound by the rule of law, not just those without the power to refute its claim to their liberty. Bibliography: Charter of the United Nations Treaty of Westphalia (1648) Simpson, G. (2004). Great Powers and Outlaw States. New York: Cambridge University Press. Richard Devetak, Anthony Burke, Jim George An Introduction to International Relations: Australian Perspectives. Cambridge: Cambridge University Press. Tardy, T. (2007). The UN and the Use of Force: A Marriage Against Nature. Security Dialogue. 38 (1), 52. Haslam, E and Mansell W. (2005). John Bolton and the United States' Retreat from International public law. Social Legal Studies. 14 (4), 465. Chesterman, S. (2002). Legality versus Legitimacy: Humanitarian Intervention, the Security Council, and the Rule of Law. Security Dialogue. 33 (3) Uniting for Peace Resolution, GA res 377 A Gray, C. (2007). Host-State Consent and United Nations Peacekeeping Yugoslavia. In: Boris Kondach International Peacekeeping. Hampshire, England: Ashgate. Salter, M. (2005). At the threshold of security: a theory of international borders. In: Zureik, E. and Salter, M. Global Surveillance and Policing: Borders, security, identity. Portland, Oregon: Willan Publishing. Schachter, O. (1964). The Uses of Law in International Peace-Keeping, Virginia Law Review, 50. Orakhelashvili, A. (2003). The Legal Basis of the United Nations Peace-Keeping Operations, Virginia Journal of International Law, 43. [1] Charter of the United Nations, preamble. [2] Ibid. art 2(1) [3] Treaty of Westphalia (1648). Available: http://avalon.law.yale.edu/17th_century/westphal.asp. Last accessed 23 June 2009. [4] Tucker, R. (1977). The Inequality of Nations. Michigan, US: Basic Books. 8. [5] Simpson, G. (2004). Great Powers and Outlaw States. New York: Cambridge University Press. 14. [6] Charter of the United Nations, art 51 [7] Simpson, G. p 337 [8] UN Doc. S/PV.2615 In: Simpson, G p 337 [9] Richard Devetak, Anthony Burke, Jim George An Introduction to International Relations: Australian Perspectives. Cambridge: Cambridge University Press. 374. [10] UN Security Council Resolution 217 (1965), 20 November 1965; Resolution 221 (1966), 9 April 1966; Resolution 232 (1966), 16 December 1966. Cited In: Tardy, T. (2007). The UN and the Use of Force: A Marriage Against Nature. Security Dialogue. 38 (1), 52. [11] UN Security Council Resolution 418 (1977), 4 November 1977. Tardy, T. (2007). The UN and the Use of Force: A Marriage Against Nature. Security Dialogue. 38 (1), 52. [12] Indeed, Simpson describes UN action in the form of “collective security” as “moribund”. In: Simpson, G. p 196 [13] Haslam, E and Mansell W. (2005). John Bolton and the United States' Retreat from International public law. Social Legal Studies. 14 (4), 465. [14] “In proceedings before the International Court of Justice, only Belgium sought to establish that its participation in the NATO airstrikes did not violate Article 2(4) of the UN Charter.” – In: Chesterman, S. (2002). Legality Versus Legitimacy: Humanitarian Intervention, the Security Council, and the Rule of Law. Security Dialogue. 33 (3), 295. [15] Tardy, T. (2007). The UN and the Use of Force: A Marriage Against Nature. Security Dialogue. 38 (1), 63. [16] Uniting for Peace Resolution, GA res 377 A [17] Ibid, A(1) [18] Legality Versus Legitimacy: Humanitarian Intervention, the Security Council, and the Rule of Law. Security Dialogue. 33 (3), 298. [19] Gray, C. (2007). Host-State Consent and United Nations Peacekeeping Yugoslavia. In: Boris Kondach International Peacekeeping. Hampshire, England: Ashgate. 145. [20] United Nations Charter, preamble By Daniel Thorpe [just in case a lecturer thinks I plagiarised my whole essay - don't worry, I wrote it :)] Discuss.



FMPBeats	Jun 25 2009, 12:24 PM Post #2
Posts: 670 Group: Members Member #606 Joined: May 21, 2009 Gender Male Religious Views Muslim	Will read this later, won't let this be ignored lol



gingerwitch28	Jun 25 2009, 12:45 PM Post #3
twenty-first century ennui Posts: 1,684 Group: Members Member #589 Joined: Apr 18, 2009 Gender Female Religious Views Atheist Political View Social Democracy	Bah, I knew you'd be the one to start this thread Though I gotta say, there's not much to discuss on my end... as sad as it is, that I, a member of the United Nations Youth Association of Australia, agree with what you're saying wholeheartedly... It's a little sad. But I suppose we wouldn't want a Star Wars-esque sort of United Nations that enforces its law at the expense of state sovereignty... Though at the same time we don't want a power infringing upon the sovereignty of another. Erk I don't know what I'm saying, I should go to bed. But 'useful as a chocolate teapot' sounds about right in terms of international law... there's really jack squat we can do about anything is there?



thelovablevagabond	Jun 25 2009, 02:17 PM Post #4
Exceptionally Pretentious and Opinionated Posts: 289 Group: Members Member #524 Joined: Feb 4, 2009 Gender Male Religious Views Christian Political View Christian Socialist	gingerwitch28 Jun 25 2009, 12:45 PM Bah, I knew you'd be the one to start this thread Though I gotta say, there's not much to discuss on my end... as sad as it is, that I, a member of the United Nations Youth Association of Australia, agree with what you're saying wholeheartedly... It's a little sad. But I suppose we wouldn't want a Star Wars-esque sort of United Nations that enforces its law at the expense of state sovereignty... Though at the same time we don't want a power infringing upon the sovereignty of another. Erk I don't know what I'm saying, I should go to bed. But 'useful as a chocolate teapot' sounds about right in terms of international law... there's really jack squat we can do about anything is there? Get me into unya haha. I am pretty tempted to apply for the trip to America; don't think I do enough in the community though.



gingerwitch28	Jun 27 2009, 01:15 AM Post #5
twenty-first century ennui Posts: 1,684 Group: Members Member #589 Joined: Apr 18, 2009 Gender Female Religious Views Atheist Political View Social Democracy	http://unya.asn.au/sa/v2/



thelovablevagabond	Jun 29 2009, 11:31 AM Post #6
Exceptionally Pretentious and Opinionated Posts: 289 Group: Members Member #524 Joined: Feb 4, 2009 Gender Male Religious Views Christian Political View Christian Socialist	Wait; you're south aussie too?



gingerwitch28	Jun 29 2009, 12:43 PM Post #7
twenty-first century ennui Posts: 1,684 Group: Members Member #589 Joined: Apr 18, 2009 Gender Female Religious Views Atheist Political View Social Democracy	Nah, I just linked it for ya



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