INTERNATIONAL LAW AND GREAT POWERS

POLS90023 International Governance and Law

Essay questions 2012

Topic:

‘Great Powers have no need for International Law’.  Critically evaluate this claim.

-Assessment should be typed in double-spacing in 12 point font on one side of the sheet only, and with a margin of at least 4 cm on the left hand side of the page.

Please familiarise yourself with the School’s Guidelines on essay writing.
You will be marked on the following criteria:

• Is there a familiarity with key theorists and concepts explored in this subject that relates to the essay topic?
• Is the argument structured in a logical and well-organised manner?
• Has the question been addressed effectively?
• Is there evidence of intellectual discrimination: an ability to pick out key points; to show a sense of the issues?
• Does the conclusion coherently summarise the main points of the essay?
• Is the writing style clear and comprehensible?
• Does the essay use correct spelling and grammar?
• Does the essay use an appropriate amount and quality of research?
• Does the referencing system (including bibliography) comply with the School’s Guidelines on essay writing?

*Grading System

A standard grading system applies across all Faculties of the University, as follows:

N 0%-49% Fail – not satisfactory
• Work that fails to meet the basic assessment criteria;
• Work that contravenes the policies and regulations set out for the assessment exercise;
• Where a student fails a subject, all failed components of assessment are double marked.

P 50%-64% Pass – satisfactory
• Completion of key tasks at an adequate level of performance in argumentation, documentation and expression;
• Work that meets a limited number of the key assessment criteria;
• Work that shows substantial room for improvement in many areas.

H3 65%-69% Third-class honours – competent
• Completion of key tasks at a satisfactory level, with demonstrated understanding of key ideas and some analytical skills, and satisfactory presentation, research and documentation;
• Work that meets most of the key assessment criteria;
• Work that shows room for improvement in several areas.

H2B 70%-74% Second-class honours level B – good
• Good work that is solidly researched, shows a good understanding of key ideas, demonstrates some use of critical analysis along with good presentation and documentation;
• Work that meets most of the key assessment criteria and performs well in some;
• Work that shows some room for improvement.

H2A 75%-79% Second-class honours level A – very good
• Very good work that is very well researched, shows critical analytical skills, is well argued, with scholarly presentation and documentation;
• Work that meets all the key assessment criteria and exceeds in some;
• Work that shows limited room for improvement.

H1 80%-100% First-class honours – excellent
• Excellent analysis, comprehensive research, sophisticated theoretical or methodological understanding, impeccable presentation;
• Work that meets all the key assessment criteria and excels in most;
• Work that meets these criteria and is also in some way original, exciting or challenging could be awarded marks in the high 80s or above.
• Marks of 90% and above may be awarded to the best student work in the H1 range.

SOLUTION

Great Powers have no need for International Law: a critical Analysis

Introduction

After the Massacre of World War II, there was a need of International Cooperation and mutual development in the International Community for creating a web of legislations which can govern the diplomatic relationship between the countries. At the very beginning the bodies that were created to handle this situation and supervise their project did not get the suitable legal environment and faced a lot of problem in creating a set of new laws. Therefore the only solution they thought was to extend the national laws to cover the international relationships. The laws which regulate the relationship between different functioning bodies within a state will be applied to cover the relations with International Bodies too. As a result of which this International law came into existence and now it covers almost every issue that has an International character. Not only the International relations and harmony, International law is now extended to cover the Criminal activities against the humanity even if it is committed by an individual and provides protection to the victim. The international Judicial Body which has this task to deal with the criminal activities is International Criminal court.

Both the National and International laws are the outcome of Custom, Religions, and Judicial Precedents etc. People obey these laws not because of fear and coercion but because of them being natural and easy to be followed. In fact, fundaments of International and National Laws are same. [Ankita, 2011] But the international law unlike National legal system is decentralized and it has no central legislator for creating the laws. Those who are the creators of International Law are at the same time the subjects of that International Law. As the creator of Law all the states are equal, there laws will have the same legal value. Although international law is a compilation of different legal relationship and not has a central legislator, it has an element of general laws composed by general customary laws. Hence these general International laws are binding on all states. [Joost, 2001]

Protection of Human rights is always the prime concern of National and International Bodies. But this area is the most controversial one because many times the application of International Laws becomes very difficult in the states or many times it is totally avoided. Here in this essay, an attempt is made to critical evaluate the concept that the so called Great powers of world need not to obey the International Law. They considered themselves the sovereign and no one is above them and hence the negation of this sovereignty is International Law. They want the people should follow the laws out of fear and their coercive powers. But the modern thinkers do not consider the concept of sovereignty as the real one but only a fiction.

Role of international Law

International Law has great political significance as it regulates the relationship between different states. Its aim is to maintain peace and harmony and ensures the well beings of human beings. International Law consist of many Hard and soft laws, laws related to the use of force, armed control, trade and crimes are the hard laws which every state is bound to obey, on the other hand laws related to environment, Human Rights and Social Policies are the soft laws which are flexible and gives rapid response to the changing circumstances.

There are various role of International Law such as:

Prohibit the use of force: All the states are required to resolve their disputes peacefully, they are not supposed to use force against each other. If they do so, it will be the violation of International Law. Article 2(4) of United Charter prohibits the use of force except in the self defense and authorization by Security Council.

Protect Human Rights: Although it is presumed to be soft law but protection of Human rights is the most important object of International Law. Every individual has this fundamental right known as Human Rights i.e. Right to live freely and with Human dignity also freedom from any bodily harm. United Nations Declaration of Human Rights gives every individual the right to be treated equally. Equal treatment is also included under the Human Rights.

Protection of civilians at the time of war or conflict between the states: The rules of war are governed by the International humanitarian laws, these deals with the protection of civilians during war and the humanly treatment of Prisoners of War and the wounded captured soldiers.

Fight against Terrorism:  Terrorism not only affects few states today but the whole International Community. Fighting against these terrorist activities and other serious crime is the most important work of International Law.

Protecting the Environment:Apart from regulating the human conduct and their activities, International Law also deals with the environmental issues. Various International conventions on the protection of environment contain the rule to deal with the environmental issues. The more universal the rules on protection and conservation of climate the effective they are. The convention which is now working on this is United Nations convention on Environment and development (Reo Declaration) 1992. [Federal Department of Foreign Affairs, 2011]

International Law also prohibits any State to interfere in the domestic issue of any other state, on the other hand it gave power to the United Nations Security Council under chapter VII of the Charter to intervene the political matters of any states for the establishment of peace and harmony, if there is any threat to it.

While discussing the role of international law, it is impossible not to mention the 1951 Convention on the status of Refugees i.e. all set of the rights and obligation that arises out of the recognition of refugee. [Durieux, 2004]

Violations of International Law by ‘The Great Powers’

Post Cold War situations give rise to the great powers of today’s world. China, France, Russia, United Kingdom and United States are considered as the Great power as they have permanent seats with veto power in United Nations Security Council. They are also recognized Nuclear Weapons states under the Nuclear Non Proliferation Treaty. They have the powers to influence the global scale. They have the extended strength of economy, military and Diplomatic relations.  We can see from the history that behind all the Human rights violations and catastrophes there was the dirty and bloody hands of these Great Powers. [Francis, 2001] They are using International Law and International bodies just for their political benefits. Of course they are the Great Powers of the World but they do not have the right of ‘Humanitarian Intervention’ that they will just abuse the human rights and manipulate the military intervention against the less powerful states. This right is only in the hands of Security Council in Chapter VII of United Charter. It was observed from past years that the violation of International Humanitarian law was the individual criminal act but from few years the responsibility is shifted toward the states during the Armed Conflict and as a result of these Human Rights victims are also increasing. [ Rau, 2007]

Talking about the International Law Violations, we can find many instances where there was a gross violation of Human rights and International law by United States of America and other members of NATO.

Bombing of Yugoslavia

Starting with the bombing in Yugoslavia in 1999 by NATO, it was named as ‘operation allied force’, violated the charter of United Nations, the Nuremberg tribunal, The International Criminal tribunal and the NATO and many other provisions of International Law. We have seen that how United Nations denied the prosecution of NATO due to the subtle pressure by the NATO member states and other politically active States. Despite of the great violation of the International rules of war, rather being a war crime, no action was taken against the organization. Yugoslavia filed many suit against the NATO countries, but most of them were denied raising the jurisdictional Issue and many of them are still pending in ICJ. The instance which also needed consideration was way before NATO bombing Yugoslavia was the incidence of Bombing Serbia also by NATO. The bombing needed the authorization of United States Security council first, but no concern was shown towards it. This was the clear example that how these organizations or the group of states were completely ignored the International Law. It is important to note here that even United States Congress had not approved these bombings, not only International Law, US laws were also ignored during this. It was reported by the New York Times on the position of Clinton’s administration that NATO is able to do what it want to independently United Nations. [Perlez, 1999] No Human Rights Treaty allows that even on ‘humanitarian intervention’ ground, a state has the right to use force against other states. Humanitarian Intervention is the use of Force or threat of force by the other states to protect the people from continuous torture by their own government. Many thinkers are of the view that ‘humanitarian intervention’ is a serious threat on the territorial integrity and political independence of a country. [Cohn, 2005]

Afghanistan War 2001

There was tremendous loss to human lives during the attack on Afghanistan by America and Europe in 2001. This act was named as ‘Operation enduring Freedom’ by the US military. More than 5000 civilians were killed by US and European soldier. This was not authorized by the United Nations Security Council and neither a self defense but was the clear violation of International Law. The attack of 11^th September was a terrorist or criminal act and not an armed attack on United States hence the attack on Afghanistan as a revenge was not a self defense. It violates Article 51 of United Nations Charter, where it was clearly mentioned that the right of self defense can only be exercised when there is or threat of armed attack on any member of United Nations, it must be instant and leave no choice and time for deliberation. For example, Israel’s attack in 1967 which resulted into a six day war was justified by United Nations on the ground of pre emptive self defence in response of the Arab invasion. This incidence was also known as Six day war or June War. United Nations Security Council never authorized United Nation and United Kingdom to use armed force against Afghanistan. In fact Security Council in itself did much on this from condemning the terrorist act, seizing property and to criminalizing it.

It was not only the use of armed force that violated the UN Charter but the use of Uranium and Cluster bombs, which after exploding spreads thousands of tiny bomblets causing the causality to multiply even 100 times more. Use of such weapons is also violation of protocol I of Geneva Convention. This was the peak of what can be done to any state by any other state despite of being the member of United Nations and many other Organizations working on the protection of Human Rights. US could have sued Afghanistan on sheltering the terrorist group of Al-Qaieda and Osama bin Laden but they chose the other way just to show their power over the innocent civilians as revenge. But it is certainly not over; these gross violations of International humanitarian Laws put a question mark on the entire system operating as International Law, which serves as protection shield for less powered nations.

War on Iraq in 2003

US declared war against Iraq in 2003, which was the result of US new military strategy of ‘pre emptive war’ under the guidance of President George W. Bush. According to National Security Strategy of 2002 declared that US will act against the emerging threats before they take form. In this way US converted the principle of Preventive War to Pre emptive War. It was argued by the United States that change was required to meet the challenges of advanced global scenario and threats. This war named as Operation Iraqi Freedom, was definitely a violation Charter’s prohibition on the attack on any state other than self defense or sanctioned by Security Council. Even there was no pre emptive threat of war against any of them in fact Iraqi army was itself suffering from continuous pressure from global scenario since gulf war. Neither United Nations Committee found anything, as nuclear weapon in Iraq before the war, nor the US committee after the war. George bush’s doctrine of pre emptive war situation was his manipulation of the International Rules. It was just a show of their unbeatable military powers to the less powered states and also disrespect for the human values. All the residential areas and civilian objects were deliberately targeted and this was the violation of protocol I of Geneva Convention, which aims at prohibiting the civilian’s injury in any war or armed conflict. This war can never be justified as a pre emptive war or the attack in self defense; this was clearly the war of aggression.

Humanitarian Hypocrisy

NATO attacks on Serbia and Yugoslavia, United States and United Kingdom’s combined attacks on Afghanistan and United States bombardment on Iraq are few example which reveals the truth of International Law’s applicability on these Countries. Every time they bombed a hospital, apartments, schools and water pumps, the statement came from the spokesperson of NATO that they do not target Civilians. Every time when they claimed that they intervened on humanitarian grounds, they were the only who were crushing the basic human values. These statements by NATO were the Hippocratic one just to obscure the harsh fact that humanitarian intervention requires the war crimes. NATO transformed itself from a defensive alliance to Europe’s first aggressive group. These instances were not the instance of a war but were the unilateral attack on the civilians of those countries. These were the war of aggression. The justification given by these powerful states was that they were exercising the right of ‘Intervention’, but the truth is that this right is primarily vested only with United Nations Security Council that to with righteous purpose and balance of consequences.

The major hypocrisy is the rejection of International Laws for the arrogance of asserting the fact that one should obey the higher law and for them their own laws are the supreme laws. The reason behind great power not complying with the International Law may be their feeling that they are morally superior to the other countries and they do not need an organization to watch their actions. The justification by NATO on Serbia issue was somehow similar to this; they say that if they would have asked Security Council for favor, Russia and China would have given their assent thus NATO’s action was to imply that it is morally superior to Russia and China. If at that time they would have suppressed they moral superior instinct, those innocent people who were killed in that attacks would be alive. [ Robert, 1999]

The question which arises after these descriptions is that do these countries are concerned about International Law?  It seems that they have little regard for it. Under Article IV of United States Constitution, it was mentioned that all the laws of treaties which US is a signatory is the ‘supreme Law of the land’, United Charter is one of such treaty. In fact US had done much for the creation of treaty of United Charter, so for a country like US, it is not only the serious violation of International Law but disrespect for their own constitution.

Apart from the legal complexities, our morality and decency will tell us how barbaric the acts were and they can not be justified on any ground. The unprovoked invasion like that in Iraq even if governed by the corrupt dictator is nothing but a mass murder. Can some one now ask those 10,000 people who died in the war that whether they wanted a changed democracy in their country or they wanted to scarify their life for the sake of a Nuclear weapon free state? [Tom, 2005]

These acts were the serious blow on the integrity of United Nation and International Law, whether these countries realize it or not. There is no doubt that these countries are the social hypocrites.

Conclusion

The model developed in this essay lead us for the conclusion that although United Nations treaty, declares the obligations under it as the supreme one and above every conflicting interests of the member states, there is always a gross negligence on the part of powerful states in complying with these obligations. From the past actions it is clear that they want to show the world, on the basis of their enormous military power and efficient economic system, that whatever be the rules they will lead. It hardly affects them by following these general International rules but it really affects the less powered states who are the victims of their power demonstration.

The UN charter gives wide scope for the interpretation of words like ‘Threat to peace’, or ‘Breach of peace’ and various recommendations to handle those situations. These recommendations are only to be followed by UNSC or after its authorization to the other countries but it will never allow any state to start the operation. So,those countries which consider itself as the great power are also the signatory of various International law treaties like those countries which are not so great, so they should keep in mind that the Charter puts every nation in the same category and should be treated similar. Hence it is very important for the peace and harmony of the world that they should also be obliged to the rules of International Law.

References:

1. Ankita, 2011, ‘International Law’, Preserve Articles, Viewed on 22^nd May 2012 from http://www.preservearticles.com/201106248509/here-is-your-short-essay-on-international-law.html
2. Joost Pauwelyn, 2001, ‘The Role of International Law in WTO’, American journal of International Law, viewed on 22^nd May 2012 from
3. Fedearl Department of Foreign Affairs, 2011, ‘Role of International Law, viewed on 22 nd May 2012 from http://www.eda.admin.ch/eda/en/home/topics/intla.html
4. Deriex Francis, 2004, ‘The Role of International Law: Convention Plus’,  Oxford journal, viewed on 22^nd May 2012 from http://rsq.oxfordjournals.org/
5. Francis A. Boyle, 2001, the Role of Great powers behind Modern Human Rights catastrophes, Modern Media Monitor, viewed on 22^nd May 23, 2012 from http://www.mediamonitors.net/francis5.html
6. Rau Markez, 2005,
7. Jane Perlez, 1999, ‘Trickiest Divides Are Among Big Powers at Kosovo Talks’, “The NewYork Times, p.A3.
8. Marjoe Cohn, 2004, ‘United States Violation in Yugoslavia, Afganistan and Iraq’, viewed on22nd May 2012 from
9. Robert Hayden, 1999,  ‘Humanitarian Hypocrisy’, KOSOVO & YUGOSLAVIA: LAW IN CRISIS, viewed on 23^rd May 23, 2012 from http://jurist.law.pitt.edu/hayden.htm
10.  Tom Krebsbach, 2005, ‘War in Iraq violates International law’, viewed on 22^nd May 23, 2012 from http://www.commondreams.org/views05/0715-07.htm

LE42