Category: International Law

Introduction

International law also referred to as public international law is concerned with regulating affairs and activities between different countries as well as the procedures that regulate international institutions like the United Nations. International law also checks how the state protects individuals as well as international associations or partnerships. It deals with several issues including human rights violations, international trade, refugees, international communications, and environmental issues. Additionally, it deals with issues of preserving global peace and security within the states, regulating the use of force, control of weapons, and resolution of disputes within nations. (Holetzky, 2003)

The start

International law was in existence in the middle Ages however, most of its foundations started to be developed in the 19th century. The II world war and League of Nations that were experienced in the 20th century formed the base for the present international law. Later, the League of Nations was changed to United Nations, which has contributed a lot to the growth of many non-compulsory standards including the General Declaration of Human rights. Various other international standards have been developed by way of international agreements. An example of this is the Geneva Convection that deals with weaponry conflicts, the World Health Organization, World Trade Organization, UNESCO as well as the International Monetary Fund. These developments have had a great impact on maintaining international relations. (Malcom, 2003)

The main sources of the international law

Customary and convectional laws are the main sources of international law. In customary international law, the states carry out certain procedures constantly due to certain legal requirements. The convectional international law comes from international agreements and in most cases acquires the structure that the involved parties agree with. These agreements are acceptable as long as they follow the rules of international laws that include following the rules of basic international conduct and the duties of a member state under the Charter of United Nations. Customary laws and other laws that are formed through international agreements have the same legality as international law. (Ouellet, 2004)

There is no government or international organization that enforces international law. The job of the United Nations is to pass measures on how the international law is implemented and enforced. In the situation where the international environment is constantly changing or when the states overlook some aspects of the law, the model may be able to change depending on the notions of the international law. (Malcom, 2003)

The states are supposed to adhere to the standards of international law and conduct themselves well to respect their responsibilities. When a state breaks the rules, the solution is that negotiations take place, and the offending states bear the consequences of spoiling their reputation. The states may also solve the problems through disconnection of economic or diplomatic ties against each other. (Malcom, 2003)

In other situations, domestic courts may give judgment against a foreign state for breaking a rule. However, this is complex since international law crisscrosses with domestic law. The states have a right to defend themselves unless the Security Council decides to bring peace between them. In the case of international bodies, the abuse of the UN Charter by the members of the United Nations is taken to the General Assembly for discussion and they, in turn, make recommendations. They have the mandate to authorize the use of force when a body breaks the rules. (Ouellet, 2004)

Conclusion

International law was formed under the classical ideas of law in national legal systems. International law is based on the fact that the involved states and organizations must be able to adhere to and uphold the obligations in the model. This is important to create conducive environmental relations in different states. In this way, many international economic and social activities will be possible and hence help improve development in our world.

References list

Holetzky, s. (2003). What is International Law? 

Malcom, N., (5^th Ed.). (2003). International Law. Cambridge University press. Print.

Ouellet, J. (2004).Enforcement Mechanisms. Web.

The individual is considered as a legal personality when one becomes involved in a legal system and gains particular rights and obligations. The question of whether the legal status can be obtained by individuals on an international basis attracted the attention of many commentators.

All people were claimed to be under the executive control of States from the 17^th until the 20^th century, which meant that they have no general position of international law, and there were only some cases when individuals were relevant in international affairs. The situation changed greatly in 1928, as it was proclaimed that the agreement between Poland and Germany was not able to create the rights and obligations that the individuals had to follow.

Direct duties and responsibilities of individuals were imposed in 1746 at Nuremberg, and then the international criminal court created international communities and referred to the Rome Statute to create the major principles of criminal law (Kaczorowska 214). In traditional international law, the international legal status of individuals started to be discussed only with the appearance of piracy.

It was argued the obligations that dealt with piracy were imposed directly on people, as some believed the States to be in charge of punishing them regardless the nationality. The issue remained unsolved as the individuals gained juridical protection only if it was accepted by the State and had particular obligations from international law, but their rights were not discussed.

Today States do not have that monopoly that they used to have, and their ability to reduce the powers of organizations reduces. Except for that, individuals international interests were taken into consideration, and people gained legal rights. As a result, a range of obligations was imposed on them when they acted as State officials and private ones due to the customary rules. In case the obligations were breached, a person was likely to be criminally liable.

The corresponding rights were not attended by the enforcement of individuals. According to international treaties, the substantive rights can be protected only in the framework of the domestic legal system. The right to petition international bodies was granted by international rules. However, there were some limitations as people could gain only procedural rights granted by treaties, and not all states had parties to them (Cassese 150).

Thus, only a limited part of international law, including rights and obligations, is given to individuals. In other words, they have a limited legal capacity. Currently, individuals are seen as partial subjects of international law that created rights and obligations for them.

In the perspective of international law, international crimes are also discussed, as they are committed not only by States but also by people. For international laws to be effective, those who occurred to be involved in such actions are to be punished. Needless to say that a person is to take responsibility for the crime only under the law that defines legal norms. The duties of people under criminal law originate from the treaties between States.

As it was mentioned earlier, the criminal responsibility is mainly considered by the international criminal court and is based in the Rome Statute. However, the ability of treaties to raise individual criminal responsibility is thought to be controversial. As a result, today, treaties create obligations only for States, which, in their turn, direct them to individuals.

That is why the legislation differs in different locations. The individual criminal responsibility was considered by the international courts in regard to the treaties that were created in the 19^th century on the basis of the laws of war. Primary, they were mainly focused on the rights and obligations of States that are why they needed to be revised.

Only Art. 41 Conventions that entered into force at the end of the 19^th century and the beginning of the 20^th century changed the situation. They allowed prosecuting the individuals, which was not earlier maintained. Regardless of the laws of war, customary law for piracy, crimes against peace, and crimes against humanity controlled individual criminal responsibility (OShea 3).

As a consequence, a number of treaties that were focused on particular crimes occur, including those connected with genocide and slavery, etc. after that such international crime as offenses relating to nuclear material and those related to diplomatic agents were considered and followed by new treaties.

In the framework of international crime, State and individual responsibility seem to be similar. Still, when the crime is conducted by the individual, the State is not considered to take responsibility while State crimes are discussed in relation to individuals and is claimed to be collective. State and individual responsibility for international crimes are investigated by different bodies and are treated according to different rules, as people are only partial subjects of international law, unlike States. As a consequence of international crimes conducted by the State, its organs are prosecuted (Crawford and Olleson 464).

Thus, it can be concluded that, from the perspective of international law, individuals were not considered for a long time. With the course of time, they received limited legal capacity, and their duties and rights were established as well as punishment for their abuse.

Works Cited

Cassese, Antonio. International Law, Oxford: Oxford University Press, 2005. Print.

Crawford, James, and Olleson, Simon. The Nature and Forms of International Responsibility.
International Law. Ed. Malcolm Evans. Oxford: Oxford University Press, 2010. 441-471. Print.

Kaczorowska, Alina. Public International Law, London: Routledge, 2010. Print.

OShea, Andreas. Individual Criminal Responsibility. Encyclopedia of Public International Law. Ed. Max Planck. Oxford: Oxford University Press, 2012. 1-8. Print.

The law of the sea treaty is also known as Third United Nations Convention on the law of the Sea, UNCLOS III. The law was adopted in 1982 after it commenced in 1973. The law gives the definition of rights and responsibilities of nations regarding the use of the worlds seas. The treaty gives the guidelines on the usage of the sea as a natural resource in terms of the business and environmental management. The purpose of the treaty was to come up with a comprehensive rules governing the oceans and replacing the previous conventions of 1958 and that of 1961. The law gets its influence from a trade conference that was dabbed new economic order. The sea treaty advocated for fairer distribution of resources among the developed countries and the less or under developed countries. The treaty specifically advocates for transferring of technology and economic resources from the developed countries to the lesser developed countries. The treaty also sets out measures that guide all the sea users on environmental practices that are geared towards protection of the marine ecosystem (Blacksell, 2006).

United States ratification of the treaty could be of benefit in gaining rights to the territorial waters. Since the treaty establishes a territorial 12 mile limit as the jurisdiction a country can have from its sea shores. The treaty also establishes a 200 mile limit as the exclusive economic zone that a country bound by the treaty can utilize. This would enable United States to fully utilize economically its territories since the there is clarity over the boundaries.

It is indicated in (Blacksell, 2006) that United States would benefit by ratifying to the treaty by gaining access to mineral resources in the deep seas. There is a possibility of the proponents to the treaty will institute property rights for resources extraction, this would make the mineral extraction in the deep seas an elegant venture. If United States does not ratify the treaty it may loose out on oil resources that are projected to be in the Arctic ice.

Incase of disputes arising from abuse of the laws, United States would form part of the team steering for a resolution. Incase of infringement of another states rights the treaty offers mechanisms that are geared to preventing such occurrences from taking place. The treaty offers a country to claim resources extending beyond the economic boundary if it proves that the resources are an extension to the sea bed of their costal territory. If United States does not ratify the treaty it may be locked out of such claims and would not be protected against the extensions made by Russia on the North Pole.

The main reason why Unites States should not ratify to the treaty is that the sovereignty of the state will be compromised. Since the treaty establishes that resources should be shared among all the nations and the creation of an international seabed authority that oversees mineral and other resources exploitation. The arrangement that exploiters will have to relay on the authority means that United States is not autonomous as it depends or is under the authority of another body (Allen, 2008).

United States territorial integrity and political independence would be threatened by the treaty. This will lead to a change in the security or normality of good order. The treaty calls for innocent passage which is the passage of any ship in the territorial waters of another country just n the condition that its not a threat in whatever manner to the coastal country. The clause of innocent passage may be misused and used as a disguise by the enemies of United States (Byford, 2007).

United States should no ratify the treaty because the treaty is restrictive to the supply of world resources. The treaty requires exporter to apply for apply for license from the authority, this may delay exploitation on resources there by interrupting mineral supply. Although the treaty was initially set to protect the mining of the land locked countries, this section was abolished; any exploitation now would not affect such countries mining industry. The conditions attached to the mining consortium are not friendly to since they require it to pay application fee, annual operating fee and share the profits in an increasing manner. The consortiums have also to share the mining technology with other members to the treaty especially the developing countries. The whole process can limit delivery time and offer unnecessary delays which cause a negative impact to mineral supply (Leitner, 1996).

Finally as a form of conclusion, United State should sign up the treaty. The benefits are enormous other than the perceived risks. There is also some increasing pressure from relative concerned sectors that advocate for the ratification. The environmental fraternity, fishing community, oil and gas industry, shipping industry and the U.S. Navy are some of the sector players that have been pro to the signing due the enormous benefits they can derive from the treaty.

Reference List

Allen, J.L. (2008). Student Atlas of World Politics, (8^th Ed) New York: McGraw Hill/Dushkin.

Blacksell Mark (2006). Political Geography. London and New York: Routledge, Taylor and Francis Group.

Byford Jennifer. (2007). Whos who in public international law. Cambridge: Crestwall.

Leitner P. M. (1996). Reforming the law of the sea treaty: opportunities missed, precedents set, and U.S. sovereignty threatened. Lanham: University Press of America.

Introduction

This article is a report which was made by a High level Panel on the threats, challenges and change that the world is faced with. The High-level Panel on Threats, Challenges and Change is a group of experts from different countries across the world established by the Secretary General of the United Nations, Koffi Annan, with the purpose of using the conclusions derived from the article to reshape the United Nations to meet the challenges of the present world so that it may be more effective.

This report, among other things, identifies six threats which the world should be watchful of and therefore concerned with in its journey to the future. These include interstates and intrastate conflict (including conflicts resulting into civil wars and massive human rights abuse); the problem of poverty, infectious dangerous diseases and environmental degradation; production of weapons which can render life as we understand it obsolete as it further progresses to a state of desolation; terrorism; and transnational organized crime. It also encompasses policies to prevent such occurrences which are immaculately outlined, and adequate response in case of failure. Beyond this, this article provides some guidelines for the employment of force in such cases where it is inevitable, as well as reflections concerning peace enforcement, peacekeeping capability, and peace building at the end of conflict. Finally, ways of strengthening existing institutions are looked at, along with the possibility of creating and developing new institutions to meet emerging challenges.

Koffi Annan sees the report of the panel which he himself established as of great range and depth, which marks out a broad framework for collective security, and indeed offers a wider meaning to that concept, which is necessary for the new millennium. It suggests not only ways to handle particular threats, but also new methods of comprehending their integration, and explains what this implies in terms of shared policies and institutions. Furthermore, the Secretary-General concurs with the reports main argument that an exhaustive system of collective security that handles the old and emerging new threats, taking into account that all are integrated, is necessary. As a result, all strategies must be exhaustive if at all they are to be successful.

Strengths

The article clearly and rightly recognizes that it is our shared responsibility to bring about a secure world. International cooperation, international law and collective security are major concepts which the world must seek in order to meet the challenges that the world is faced with. The article captures the observable global situation and the challenge that the United Nation is faced with, with regard to meeting these challenges. It is true that should the United Nations fail to rise up to these challenges, its erosion will be inevitable since it will cease to be relevant to the social, political, economical and environmental dynamisms of the present time. In order for the United Nations to be relevant in the twenty first century, its institutions must be restructured and its mandate rethought. In view of this, the recommendations of the article are in order.

The United Nations of today is different from what was established by the world leaders in 1945. There are threats which were not anticipated when the United Nations was instituted which includes nuclear terrorism and the collapse of states due to internal conflicts, poverty and disease. These are some of the problems that the author of the article has correctly identified as posing major challenges to the world. Considering the level of integration that the world has achieved within the past fifty years, the article rightly points out that a threat in one sector poses a threat to all other sectors. In order for the world to be secure, all states need international cooperation. The six clusters of threats mentioned in the article are the core of the global communitys problem.

It is true that the United Nations has risen up to some of these challenges as stated by the author. This is evidenced by a decrease in the outbreak of civil wars except for places like Congo where the United Nations is actively involved in mediating peace, reduction in the production of weapons of mass destruction through the Nuclear Non-Proliferation Treaty, countering the spread of dangerous diseases such as SARS through the world Health Organization among other achievements. However, these achievements can be reversed unless the organization is strengthened.

The article indicates that the panel recognizes that the global public health system is not well equipped to combat both the existing and emerging dangerous infectious diseases. However, it does not point out any new mechanism which has been put in place to counter this discrepancy.

The capacity of the organization for mediation and preventive diplomacy has to be strengthened if wars are to be prevented. The report recognizes that the major source of conflict is competition for natural resources. This competition for resources has often been accompanied with the quest for domination especially for the developed countries. A new way of natural resource management and regulation has to be sought by the United Nations for wars to be minimized. Security of the world can only be guaranteed if the spread and use of nuclear, chemical and biological weapons is prevented. Limiting the supply and demand for weapon materials is necessary.

With an increase in conflicts over the past few years, the report outlines the necessity of military intervention. Prevention strategies fail in some occasions and hence it sometimes becomes necessary to counter threats with military force. A clear framework for the employment of force is laid by the United Nations Charter. However, the right of every nation to defend itself is enshrined in Article 59. A customary international law which was long established is clear on the fact that a nation can resort to military action when a threatened attack is apparent. This introduced a sensitive element with regard to dealing with interstate conflict as mush as it appears simple. Even though the Security Council has the authority to prevent war, it has seldom done that. According to the article, the report recommends that the Security Council be set so as to be more proactive in the future. Any nation which senses an imminent danger has the obligation to forward their concern to the Security Council before engaging in any form of military confrontation.

According to the article, the panel recommends the strengthening of the critical role of Secretary General with regard to peace and security. Should this be done, the conception that the United Nations is a toothless bulldog may just be altered. It also recommends a creation of a Commission of Peace building to work closely with international financial institutions and regional organizations to help those countries which have emerged from conflict. A secure world cannot thus be created by summits but rather in practical actions which are bound to register remarkable change.

Weaknesses

The article assumes that the proponents of the United Nations did grasp the complexity of the character of international political system. There is a wide correlation between problems than imagined by the authors of the article. There are still wars and rumors of wars. In the full view of the United Nations, countries are arming themselves for war and there is a threat to world economy. As such, the article seem to give too much credence and weight to the United Nations as an answer to humanities problem without looking at diversity in thoughts and inevitability of conflict and hunger. Food prices have gone up and poverty is escalating in the full glare of the United Nations even as a few individuals ride in extreme wealth. However, the United Nations cannot feed the world. As much as the organization has a noble cause, its response to emerging challenges has been far from effective. The article however sees many success stories and only points toward failures which it looks at as inevitable. For instance, it can be claimed that the United Nation has failed in the provision of peace in many areas, the latest being the conflict in Democratic Republic of Congo. Its mediation efforts are only seen after the onset of war. The article fails to address this phenomenon.

Collective responses to the global problems can only be resolved through the mechanism of international institutionalization in the absence of a shared strong universal vision or a world government. An effective response to problems facing the world requires flexible institutions with expanding organizational vision. It is often likely, as the article has stated, that a disjointed response to the global challenges may occur through the process of international relations. However, organizational learning may ensure that an accurate perception of the exact nature of the current intertwined problems is obtained thereby guaranteeing a resilient and robust response. Many of the problems are solvable without the creation of other new super organizations as the Secretary General has suggested.

Critical analysis

It is assumed that the collective power of people to determine future course is greater now than before as evidenced by the title of the article. Many people are also seeing the need to exercise it. The main challenge of this generation is to mobilize this collective power so as to make the twenty first century secure, democratic and sustainable. However, the article only sees the United Nations as the only organization that has the mandate to mobilize this collective power. A new vision which can integrate people everywhere so as to achieve greater levels of cooperation is needed in the world and this can come from a well coordinated and institutionalized sector.

If we fail to discern clearly the future trends then our survival as human race may not be guaranteed even with the United Nations in place. Men need to tread carefully with caution, balance and vision. The common future for men lies on the degree to which every individual alive today envisions the ideal world and invests his or her energy towards achieving it. The role of the United Nation is to widen the scope of human ability by coming up with approaches to global governance within diverse societies that share a common destiny. All leaders around the world should also work towards national goals which recognize and acknowledges greater human integration.

The struggle for military and political dominance should not be the center of national policies and the author should have outlined ways through which the United Nations aim to curb this. Instead, much effort should be directed towards ensuring healthy and secure world where every human being can once again repossess the wonderful planet called earth without interspecies threat. We need to build a world where men are no longer afraid of men, a world where justice and righteousness is written in the heart of every individual. Whether this can be achieved institutionally or individually is the question which humanity has been grappling with and seems to be on the right but fragile course. As the author of the article has rightly observed, the report of the High Level Panel on Threats, Challenges and Change is only the beginning of a long process.

Bibliography

Our Global Neighborhood. Report of the Commission on Global Governance. New York: Oxford University Press, 1995

Report of the High-level Panel on Threats, Challenges and Change- Executive Summary -United Nations, 120204.

Introduction

International law is the law that governs the relationships between bodies that are subjects of this law. These bodies include sovereign nations, international organizations like the United Nations and national freedom movements (Shaw 10). The history of international law dates back to middle Ages. However, in the wake of 20^th century, and the events that took place around this time, formation of international law accelerated to be where it is today. For instance, the two World Wars coupled with the establishment of the League of Nations among other global organizations, contributed largely to fortification of the contemporary international law (Shaw 16). The United Nations is one of the most outstanding international organizations that have brought about the consolidation of many conventions that are helpful to the international community. Conventionally, existence of different states in the same place calls for maintenance of law and order to foster cordial relations between these community states. Genesis of international law lies in this simple fact.

The greatest purpose of the international law is to supervise the deportment of different member states in a bid to uphold sound relations for the benefit of all. Any member state will do all that it can, to remain within the requirements of the international law. Disregard of these rules or acting contrary to the provisions of the international law, may attract disapproval from other member states. This disapproval can permanently spoil states reputation in the global arena. International law does not act to profane member states rights for individual states. On the contrary, this law seeks to protect the rights of individual member states, by including given rules concerning member states together with non-members provided there is a link with international community (Mifsud-Bonnici para. 1).

Classical international law sought to separate individuals from states. For instance, Rousseau viewed people to be very different things from states and posited that, states can become enemies but individuals in these states cannot be enemies (Mifsud-Bonnici para. 3). Nevertheless, the face of contemporary international law is gradually changing and this law now associates itself to people more than ever. This has seen the introduction of humanitarian law as a branch of international law to address predicaments of individuals not states. Moreover, the face of international law is continuously changing to address emerging demands due to changing times.

Structure of International Law

There are two forms of international law, that is, the classical and the contemporary international law. However, international law is meant to be the same. Nevertheless, as times change, this law also changes. These two forms of international law are based on the same principle: sovereignty (Held 160). Within this sovereignty, there are internal and external aspects that govern the international law. These are rules that govern international law. For instance, there are rules governing warfare and munitions. The involved authorities make these rules during conventions. For instance, in 1864, there was the Geneva Convention that sought to improve treatment of people injured in battles and resolve conflicts between states (Held 164). The other landmark achievement is the Hague Convention in 1899. Within international law, there are subclasses including environmental laws, child abuse laws and humanitarian laws among other components mainly found in domestic law.

However, the structure of the international law has changed gradually in the last fifty years moving from classical structure to liberal sovereignty structure. Under this structure, public power is delimited to the international arena whereby, no single entity whether political or governmental, can abolish this structure. This structure gives the international community the mandate to intervene in situations that are stipulated in international law, without the consent of the state involved (held 169).

Implementation of International Law

There are a number of ways, by which the international law can be implemented in different cases. According to Kojima, there is formal or informal implementation, coercive or voluntary implementation, collective or unilateral implementation, long-term or short-term implementation and national/international or regional implementation (para. 1). Any effective implementation of this law depends largely on the sovereignty of the involved states. Lopez posits that, sovereignty plays a central role in international law matters because without it, a state has no power to run her foreign affairs and this reduces this state to international object not subject (para. 1). Treaties have been used world allover to implement international laws. A treaty is a component falling under international law, whereby, the involved states or organizations enter into an agreement. According to The International Law of Treaties, there are two types of treaties: bilateral and multilateral. Bilateral is an agreement between two states while multilateral is an agreement between three or more states. In signing a treaty, there has to be free will and good faith among other requirements.

The other aspect of implementing international law is through agreement. If two states are locked in a feud, they can decide to enter into an agreement or an international body may intervene and give a ruling. According to Kelsen, the ruling of this international body is based on statements of facts that do not favor any side (368). The United Nations has been involved largely in implementing international law. For instance, World War II left Korea a divided state. There was the Communist portion comprising the northern half and the southern half that was occupied by Americans (Spark Notes para 6). The United Nations in collaboration with the United States of America intervened to end this division. After several failed efforts, the warring sides signed a peace treaty in 1953 (Spark Notes para. 6).

Even though this treaty did not help to heal the divisions in Korea, the Korean War ended (Spark Notes para 7). This highlights involvement of the United Nations in implementing the international law. According to the Charter of United Nations, the purpose of the United Nations includes ensuring that there is peace and security internationally. This happens through taking measures that would prevent or eliminate factors that appear to be threat to security. The international law is implemented through suppression of elements that cause breach of peace in any given state. The United Nation seeks to bring cooperation in international arena by solving problems be it economical, social or political among others. Therefore, in the wake of conflicts, the United Nations move in to quell the differences and by so doing, it implements international law.

The other bodies involved in implementing international law are the International Criminal Court (ICC) and the International Court of Justice (ICJ). These two bodies deal with making ruling on issues that pertain to international law. The ICJ falls under the UN Charter and it makes ruling concerning pertinent issues within the United Nations member states. The ICC on the other hand is a judicature set to prosecute perpetrators of crimes against humanity, genocide or war crimes. This body implements international law by giving a ruling concerning the aforementioned cases. However, it can only persecute individuals from member states. States like the United States of America, Russia, India and China have not become member states and this limits the powers of the ICC in implementing international law.

Signing a Treaty versus Initiating a Treaty

There is great difference between signing of treaty and initiating a treaty. Initialing a treaty implies that the signatory agrees with the provisions in the treaty but will not necessarily follow them. On the other hand, signing a treaty implies that the signatory has agreed with the provisions in the treaty and will abide by them (Geist para. 6). In initialing a treaty, the signatory has uses initials. However, in signing a treaty the signatory has to use the full names. For instance, in initialing, a treaty America may use USA but in signing a treaty, it has to use the United States of America (Nathan 98).

Why and When to Follow International Law

Every member state and even those who are not member states should follow the international law regardless of time and space. There is no specific time when international law should be followed and not followed at others. The international law, just like any other law, seeks to protect individuals from abuse of any form (Stoyles and Broomhall para. 3). Unfortunately, there have been incidences where double standards have been applied in implementing the international law. The International law has changed from pursuing its mandate of ensuring justice for all, and resorted to purporting power and class at the international arena. What else explains why most of the people taken to ICC in Hague are mainly Africans yet there has been rampant human rights violation all over the world. The closest international justice came in action in the west is when a special tribunal by the UN prosecuted Serbias Milosevic. Actually, the reason why this prosecution took place is that Serbia lost in the war (Rachman para. 3).this serves only to highlight the double standards applied in the international law.

Take for instance the war in Iraq involving the US troops. First, the UN Security Council did not authorize this invasion (Palmer para. 1). Therefore, based on the UN charter, this invasion is illegal under the confinements of the international law. Unfortunately, as war rages, no one seems to voice concern, not even the ICC or the UN Security Council itself. These are double standards. Last month, the ICC chief prosecutor, Moreno Ocampo was in Kenya as he prepares to haul the suspects of the 2007 post election violence to The Hague (ICC para.1). Before the post election violence started in Kenya, at around 29^th December 2007, the US troops were still in Iraq. There have been different explanations as to why the US troops are still in Iraq. Supporters of this partial application of international law claim that, these troops are not in Iran as police officers. On the contrary, they are there as vigilant groups (Myers para. 4). This is a return to jungle law. This is not new within the US administration. In 1999, NATO bombed Serbia, again without approval of the UN Security Council.

Another good example when the international law has been violated is the detainment of prisoners in Guantanamo. The Bush administration argued that, these detainees could not benefit from constitutional rights because they were outside America (Raustiala para. 6). International justice is all about ensuring justice for all. The ICJ could have intervened but once again, it went silent. Location may affect constitutional rights, however, legal rights transcend geographical borders and that is why the UN Security Council is in place. The United States of America seems to assume that, the laws governing sovereignty have changed. Unfortunately, this is not the case. In the face of these actions, it appears that justice does not follow international law. Iraq invasion may be of a good cause, but then the procedures used do not comply with international law standards.

There are cases that seem to be of good cause even without adhering to international law. For instance, if countries like Kenya, Sudan and South Africa among other neighbors of Rwanda intervened in 1994, probably millions of Tutsis would not have gone down the drain. It appears that overlooking the international law at sometimes may help to save a situation. Most probably, if the US did not deploy troops to Iraq, a replica of 9/11 would have happened by now. If Kenya, South Africa and Sudan among others intervened in 1994 Rwandan genocide, millions of Tutsis would be living today. It appears the laxity of implementation of international law before it is flouted contributes largely to its subsequent flouting. May be the US did not see any action against Iraq forthcoming so she moved to tame this insurgence before it got out of hand. Nevertheless, if a state becomes part of international community, then it has to adhere to the governing rules. If we do not uphold the very laws that we make, then it becomes useless to make them. There is no need to waste a lot of time and resources trying to make laws that will only exist in the books.

Outcomes of Violating International Laws

As aforementioned, after America in collaboration with Britain invaded Iraq, violating international law prospects, no legal action was taken. The ICC and the ICJ are still watching. In 2006, due to mounting pressure from other countries, the ICC chief prosecutor Moreno Ocampo gave all explanations regarding the war in Iraq. Ocampo indicated that, according to article thirteen contained in Rome Statute, he has to gather and analyze information to determine whether there is enough information to substantiate an investigation (The Hague para. 2). It appears that Moreno Ocampo is still gathering and analyzing reports to determine whether the international law was violated in Iraq, or may be those were mere allegations. It is saddening to watch as the body that is supposed to protect its subjects turn against them. Nothing has happened to America and Britain, and it appears that if any further violation of international law takes place, then no action will be taken.

No Country is above the Law

Despite all these violations of the international law, no country should be above the law. The UN Security Council has resolutions that all states should adhere and comply with, thereof. According to Charter of the United Nation chapter 14 article 92, the International Court of Justice is the principle judicial body of all member states of the United Nations (para. 6). This does not exempt the United States of America or Britain. This principle alone underpins the need of every member state to comply with this provision. Article 94 of the same chapter states that; all members should comply with the ruling of the ICJ regardless of the decision made. These provisions need to be followed. There is no need to come up with complex systems to implement this provision. Member states, including America, should show diplomacy and respect to sovereignty when dealing with foreign affairs.

International law applies to all people. There should not be partiality when dealing with individuals. We cannot pervert justice on basis of power and influence. There are basic principles that every country should follow in order to maintain and foster international law. For instance, there is the UN Security Council sanction concerning use of force. This approval sets the standards of using force so high that it almost eliminates use of force (Rachman para. 5). Secondly, the international law dictates the conduct of wars. This provision should not be flouted and countries like America, who feel to be above international law, should reconsider their actions.

Conclusion

International law is the law that governs the relationships between bodies that are subjects of this law. The presence of different communities or states, living together in a given area calls for the formation of international law that will protect all individuals. This law seeks to uphold justice for all people across the nations. There are several ways by which international law is implemented. This may be formally, informally, nationally or internationally among other dimensions of implementations. Involved parties may decide to sign treaties or enter into agreements depending on the intensity of the crisis (Mazrui 123). There are international bodies that are involved in implementing international law like the ICJ, the ICC or the United nations. The primary work of these bodies is to ensure that individuals get justice regardless of location. The international law, like any other law should pass judgment without partiality regardless of ones status, power or influence.

Unfortunately, there are instances where international law has failed to ensure justice without favor. For instance, the ICC is supposed to prosecute perpetrators of crimes against humanity or war crimes. To the dismay of many, this has not been the case. Most of the people, who have been tried and prosecuted in The Hague, are mainly from Africa. There are so many cases of crimes against humanity world allover, but the ICC does not seem to be concerned about them. For instance, presence of American troops in Iraq is illegal and it flouts provisions of the UN Security Council. Despite this flouting of the international law, no legal action has been taken against America and her adherents like Britain. This highlights incidences where states have chosen to against the rule of law to achieve personal gains.

The international law should be adhered to by every member state and no one is above this law including America. For justice to prevail there must be level grounds of administering the same. America and her likes should realize that, it is through respecting other peoples rights, that ones rights can be respected. Fear and intimidation do not serve any justice, they only fuels adversity.

References

Geist, Michael. Signing vs. ratifying. 2007. Web.

Ginger, Fagan. Americas Violations of International Law. 2009. Web.

Held, David. The Changing Structure of International Law: Sovereignty Transformed? 2003. Web.

ICC. ICC Prosecutor: Kenya Can Be an Example to the World. 2009. Web.

Kelsen, Hans. Principles of International Law. 1953. 

Kojima, Chie. Treaty Implementation in Modern International Law. Max Planck Institute for Comparative Public Law and International Law. 2008. Web.

Lopez, Karl. Effective Implementation of International Law. Law and politics. 2009. 

Mazrui, Ali. Human Rights and the moving frontier of world culture, in Philosophical Foundations of Human Rights. Unesco, Mayenne, France. 1986.

Mifsud-Bonnici, Aron. The Aim of Public International Law. 2009. Web.

Myers, Steven. Americas Scorecard in Iraq. The New York Times. 2009. 

Nathan, Manfred. Empire Government: an Outline of the System Prevailing in the British Common Wealth of Nations. 1928. 

Palmer, Alasdair. Justice Doesnt Always Follow International Law. Daily Telegraph. 2008. 

Rachman, Gedion. What Exactly Does International Law Mean? 2009. 

Raustiala, Kal. Does the Constitution Follow the Flag? 2009. 

Shaw, Malcolm. International Law. 2008. 

Spark Notes. The Korean War (1950-1953). 2009. 

Stoyles, Jayne, and Broomhall, Bruce. Canada Should Follow War-Crimes Trial With Others: No Time To Rest After The Sentencing Of Leader In Rwandan Genocide. The Gazette. 2009. Web.

The Hague. 2006. 

The International Law of Treaties. The Sources Of International Law. 2009. Web.

United Nations Charter. Purposes and Principles. Web.

One of the issues with combating terrorism is the absence of a definition that could be considered universal. Schmid (2004) proposes the following definition:

Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi-) clandestine individual, group, or state actors, for idiosyncratic, criminal, or political reasons, whereby  in contrast to assassination  the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat- and violence-based communication processes between terrorist (organization), (imperiled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought. (p. 382)

This definition has several issues in that the definition of victims is left ambiguous and vague. It seems to cover both military and civilian targets, as those can be both targets of opportunity as well as representative or symbolic targets. Therefore, acts of fighting against foreign oppression would, by this definition, be considered terrorism, contributing to the age-old debate between one persons terrorists and another persons freedom-fighters. Di Filippo (2020) defines terrorism as follows:

&criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act. (p. 48)

This definition, though short, does not answer the question of when political violence may be correct or even necessary, for the greater purposes of liberation or opposing tyranny. Based on the similarities between both definitions, it could be argued that the main problem is the inclusion of military combatants into the definition. Soldiers and police officers are the extensions of will of their respective governments and have a monopoly on violence, thus are well-equipped to defend themselves. Therefore, attacks against them can be justified under the scope of freedom-fighting. The definition I propose is as follows: Terrorism is a criminal act aimed exclusively against civilians with the intent to impose a state of fear, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.

References

Di Filippo, M. (2020). Research handbook on international law and terrorism. Edward Elgar Publishing.

Schmid, A. (2004). Terrorism-the definitional problem. Case Western Reserve Journal of International Law, 36(2), 375-419. Web.

International Law

Hugo Grotius was born on April 10, 1583 in Holland. He was raised in a family of well-educated people with ambitions. Grotius started reading when he was three years old and his mother prohibited him to read. When he was eight years old his brother died and that’s when he started writing poems in Latin to comfort his father. At the young age of eleven Grotius was admitted in the Faculty of Letter at the University of Leiden. Just after he graduated at the age of 15, he was presented to there King Henry IV and he named Hugo “Holland’s miracle”. A year later he obtained his law degree from the University of Orleans. In 1607 he was chosen by the prince as Attorney General of Holland, Zeeland, and West Friesland. He married a girl named Maria and soon started a family. After several years as Attorney General, Grotius was appointed Pensionary of Rotterdam in 1613.

The philosophy of Grotius took a step to the reinterpretation of International Law. The key was in the attitude and action taken by the States in the political and international arena, based on the imperium of the basic principles of nature and custom. Agreements and social practices appropriated by States would become the essence of the Law of Nations.

Positivism has developed as the modern State-Nation system and emerged after the Peace of Westphalia in 1648 and in the midst of religious wars. This peace put an end to the Thirty Years War from 1618 to 1648 and is generally considered as an initial point of European international law and at the same time, it is one of the main milestones in the development of modern International Law.

At the same time positivism appeared to demolish the philosophical basis of Natural Law and give that theory to history, but this resurgence in a modern aspect of the importance it would have in the future. Natural Law gives way to the concept of human and fundamental rights of man and citizen.

This was individualistic political supremacy. The idea of ​​the social contract, which supposed an agreement between individuals, preceded and justified the civil society, accentuated the central role of the individual and was interpreted pessimistically to demand the absolute sovereign who ate the State; as Hobbes had declared ‘man is the wolf of man’, or with optimism one should think of a conditional acceptance of authority as Locke had maintained and this could not fail to be a revolutionary doctrine. Human rights are the heart of the American revolutions and the French revolution and the essence of today’s societies; something that Grotius also impulse.

Grotius developed a table in which he explains the dimension of the legal discipline and the scope of application of the International Law based on science, criticism, and politics and the diverse conditions under which the rules must govern the social conduct of States. Despite the exile in France, Hugo Grotius had already achieved fame in Europe. Luis XIII soon granted him a pension of three thousand pounds that otherwise did not solve his problems that were arriving one after another. Nevertheless, he had a very rich and powerful place within the court that facilitated him some of his numerous mansions and in the field where Holland’s miracle could retire to think and to write.

It was then that Grotius conceived the idea of his major work, ‘De Jure Belli as Pacis’, which was completed in 1924 and was published the following year.

In his work De jure Belli ac Pacis publishes in 1625, he talks about the private notions of the law. Here he mentions both Francisco de Vitoria and Alberico Gentili, precursors of Natural Law, that were really influential for Grotius works. Grotius exposed the theology of International Law and emphasized the irrelevance in such study of any Divine Law. He said that the Law of Nature would be valid even if there was no presence of God. ‘It was a statement that, although adequately dressed in religious protest, was extremely daring. The law of nature had returned to its constitution exclusively on reason. Justice was the part of man’s social makeup and so it was not only useful but essential’. Hugo conceived the idea of ​​a comprehensive international law system what earned him his works were universally recognized.

He retained the theology distinction between a just war and an unjust war, a notion that should soon disappear from the treaties on International Law, but somehow sustained modern access to aggression, self-defense, and liberation.

The idealist theory of Samuel Pufendorf, who tried to completely identify International Law with Natural Law and on the positivist theory framed in the ‘positivist’ school, which distinguished the International Law from Natural Law and accentuated practical and practicing state ideals. Pufendorf considered Natural Law as a moralizing system and misunderstood the direction by which the Modern International Law should follow its course by denying the validity of the rules on custom. Grotius also refuted positivism stating that for the recognition of treaties, whatever their scope of application and relevance should have a discussion based on the principles of international law. Other ‘naturalists’, on the other hand, repeated those feelings framed on the basis of the minimization of the actual practices of states in favor of a theoretical construction of absolute values, but rather with the inspection of events that had arisen from the discussion and of the real problems that had arisen. The empiricism formulated by Locke and Hume denied the existence of native principles and postulated that ideas were drawn from experience.

It speaks properly of treaties of natural right but rather it constitutes a treaty of right on which today we would call international relations; although it also covers other topics, composed according to the guidelines of legal humanism. The explicit intention of Grotius declared in his first paragraph of the book was to treat ‘in the form of a system the right that governs the relations between peoples and between their rulers, both natural and divine and the positive customary’. Grotius, when dealing with the different themes that mark his book, manages indistinctly norms of natural law, precepts of positive divine right and subordinary norms of international law; his book is not treaty of natural law, since the first one to speak of natural law was Pufendorf, but a work that inscribes meta-logically within the works of law you realize according to the proper method of legal humanism.

On the other hand, far from breaking sharply with the previous doctrine, Grotius frequently used and cited the previous authors, both jurists and some theologians of the Scholastica. Actually the most decisive for the success of the Grotius book was the opportunity of its appearance, together with the fluid and agile argumentation, its great humanistic culture, it’s good knowledge of jurists and theologians, the harmony and balance in the exhibition, etc. However, Grotius guessed in the history of the theory of natural law a novelty. In the Prolegomena of his work, the Dutch author developed a notion of natural law, which is based on new ideological bases with respect to the previous tradition.

Grotius left aside theological conceptions, founded the notion of natural law based on reason, characteristic of all men and that unites them without ideological or religious considerations, where natural law would have as sole foundations reason and nature. It considers the appropriation of the ships due to the existing war situation, where the basis of the legality lies in the fact that war is a right of nature. Within the element voluntarist planet that all the law is born of the will of God or of men, as the case may be, which is known by reason and justified in human nature.

Hence, Grotius established a series of principles that order international law and the legal order in general of several rules:

• The first rule refers to the divine will as the origin of every right from which two laws derive, in the first it is licit to defend life and avoid evil; in the second, it is licit to acquire the utility for life and to conserve it. These precepts are considered divine right or absolute or primary natural right since they emanate directly from the will of God.
• The second rule manifests the consent of all units of all men is right, their respective laws are related to all other aspects that must be regulated differently from life, therefore, they are laws based on collective will. Therefore, all these precepts are considered secondary natural right.
• The third rule also considered a secondary natural right, the rule expresses that what each one declares that this is right for him, and the remaining laws that derive from the said rule are those that are based on the individual will.

From these rules, it follows that the will and the pact are the sources of law and the reason fulfills an ordering and cognitive function of any legal system, while it is possible to identify a divine right with the cusp of natural law. In this work also, Grotius developed his doctrine of natural law, definitively separates the natural right of religion, but still considers the divine will as the origin of law, also making it clear that natural law has its seat primarily in human nature, although God is also a source of it, since he wanted the principles of this right to be in our nature, therefore, the origins of natural law would come to be two, being the priority for us human nature, even though God didn’t exist, it affirms that natural law existed, it would continue to exist and force men to comply his precepts.

The reason within his doctrine is a primordial element as a source and as a means of knowledge of natural law, therefore, it is known and at the same time we know that it compels through reason, but at the same time obligation to obey it is born of the divine will the will being later and subject to reason.

As a characteristic of this natural right we find the immutability, since the natural right is born of the human nature or essence, which at the same time is also immutable and, in addition, is known by means of the mathematical reason whose object is the immutable realities, for Natural law does not change either in time or space, that is, it is common to all times and all peoples, its character of immutability is so characteristic of natural law that it even affirms “natural law is immutable to the point that it can not be even modified by God, just as God can not make two plus two not be four, neither can it make what is bad by intrinsic reason not bad.”

The natural right in the eyes of Grotius has its origin and foundation in human nature, therefore, everything or that is in accordance with human nature is ordered by natural law, as also what is not in accordance with it is equally prohibited by this, where the essence of that nature is the character of sociability characteristic of human nature, a distinctive feature between man and animals, as well as what makes us different from these is rationality, including sociality and rationality human are the source of natural right.

On the other hand, the natural law, for Grotius, becomes the premise and source of legitimacy of positive law, whether for international law or civil law which are born of consensus or pact, it is as if society is born spontaneously once the political organization has been born, in particular, the legal rules are the product of pacts or conventions, with respect to which they have their foundation in human nature and natural law, where the obligation to keep the word or compliance with the covenants comes precisely from this same right.

Finally, the ‘Right is what is not unjust, being unfair what goes against the nature of society according to human reason. Law is the faculty or moral quality of the person insofar as he is competent to own or do something rightly.”

Grotius also very important work was Mare Liberum, formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. The disputation was directed towards the Portuguese Mare clausum policy and their claim of monopoly on the East Indian Trade. “The air belongs to this class of things for two reasons. First, it is not susceptible of occupation; and second, its common use is destined for all men. For the same reasons the sea is common to all because it is so limitless that it cannot become a possession of anyone, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries.”

International Law Today

Currently, International Law is fully valid, its rules are considered valid and applicable. Therefore, it has been necessary to establish the base or logical, historical and legal support on which it rests and on which it does not grant its reason for being.

Therefore, some writers have taken the ideas of Grotius stating that International Law is within Natural Law and that in turn is a mixture of customary law and Natural Law since the States contract obligations are given by the very nature of which emanates the interdependence of one with others.

However, there are those who also maintain that international law comes not only from custom, but also from treaties and conventions, and that is where the self-delimitation of States and the common will to find mutual cooperation agreements take place. The State, by its own will, establishes limitations on its power when it considers it necessary to negate the international system; therefore International Law is mandatory because the State is capable of binding itself.

On the other hand, some writers have objected to this thought, saying that Grotius also said that the International Law fundamentally has the will of the State and that it is discretional, it is in his hands to admit such rules and also discard them.

The ‘pacta sunt servanda’ rule imposes the duty to fulfill the obligations contracted by the States and it is for them that in order to give a content to the fundamental norm of International Law we have to start from those legal principles that the civilized peoples commonly recognize, since the norms of positive international law have been built on the base of the legal conscience of the peoples.

The current system of International Law takes into account the annotation of Grotius in its various works and establishes the division of the international system into two subsystems: the law of peace and the law of war; but that undoubtedly brings a serious problem, that of the finality, since, in an authentic legal system, incompatible norms must not subsist. From there, he takes the postulates of Grotius but in turn makes a distinction between the law of peace and the law of war, something that at the time Grotius failed to establish.

Thus, the right of peace protects the States against the annihilation, the subjection and the mutilation of the territory, and the individuals of the territory, and the individuals against the deliberate and organized destruction, en masse, of life and property. On the other hand, the right of war renounces the first objective and restricts the second, limiting itself to protecting man against gratuitous suffering and destruction.

For this reason, the importance of the maintenance of international peace and security has now been established, but it has also been found that if there is a war, it must have laws that impose obligations on combatants. That is, here Grotius is given the reason, that there may be an intermediate State, in which international norms must interact with justice and demand of the nature of the peoples to seek a solution in the acts of war that ultimately proclaims human dignity and the fearless value of the world; peace.

Conclusion

To conclude, we can say that Hugo Grotius has high merits in the history of political and legal ideas and even in the doctrinal elaboration of positive law. Many call him, father of Public International Law. Undoubtedly the Hollander jurist had the merit of systematically structuring the natural law and put it frankly at the service of the political interests of the bourgeoisie which I represent consciously.

Grotius’s philosophical thought is formed in the heat of the struggles of the Dutch people for their political and religious freedom, against the Spanish domain and decadent feudalism. Grotius is, without a doubt, an active element of the revolution of Holland. In his initial work, Mare Liberum, presents the first concepts and notions of future International Law, to defend the freedom of navigation that constituted an expensive longing for the Netherlands, new naval power, against the hegemony of Spain, which had arrogated the right exclusive navigation to India, invoking papal decisions in this regard.

For Grotius, Law emanates not the will of God, but the very nature of man. What distinguishes this animal is its aspiration to relate to its neighbors, in an organized manner, according to the dictates of sanity. Thus, in Grotius, naturalism is structurally separated from its predecessors. Grotius could not totally get rid of the influences of religion and came to admit that God exists and therefore in natural law can exist without God, for only the rule of the rational, while God has created when it exists, it also emanates the right.

For this reason, that natural law founded on rational ethics appears completely remembered, in the speech of Grotius, by the presence of the contract or social agreement. The contract, as an agreement of wills expressed or tacit, is the basis of Civil Law and obligates men to a regimen of collective life presided over by a spirit of collaboration that takes citizens to it and obedience to the prince and in the international leads to the international legal community.

References

1. Miller, J. (2011, July 28). Hugo Grotius. Retrieved May 8, 2019, from https://plato.stanford.edu/entries/grotius
2. Hugo Grotius and International Relations. (2014, November 07). Retrieved May 8, 2019, from https://www.oxfordscholarship.com/view/10.1093/0198277717.001.0001/acprof-9780198277712
3. Haskell, J. D. (n.d.). Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial | Emory University School of Law | Atlanta, GA. Retrieved May 8, 2019, from http://law.emory.edu/eilr/content/volume-25/issue-1/articles/hugo-grotius-secularism-liberalism-restatement-denial.html
4. N. Shaw, Malcolm. International Law 5th Edition. Cambridge University Press. United Kingdom, 2003. pp. 23.
5. Barcia Trelles, Camilo. Estudio de Derecho Internacional. Universidad de Santiago de Compostela, Zaragoza, 1958. pp. 471.
6. Monroy Cabra, Marco. Derecho Internacional. Temis S.A. Bogotá, 1994. pp. 215

Introduction

War is changing from conventional conflicts between nations to ‘small-wars’ as counterterrorism, counterinsurgency, ethnic and religious conflicts (Rochester, 2016, s. 10). The change is from interstate war to new wars involving nonstate actors and armed forces. The modern warfare post challenges to the United Nations (UN) Charter, the Geneva Conventions and other legal documents since they originated during World War II in an interstate war paradigm (Rochester, 2016, s. 5). The terrorist attack on 9/11 were a new type of attack and the United States of America (US) initiated a permanent war with no geographical and temporal boundaries. The declaration on global war on terror left a gab in the legal premise, where the use of peacetime domestic law and traditional wartime international law became inapplicable.

The change of war paradigm and the possible need for a new paradigm will be discussed in this paper. This paper will analyze and discuss some of the legal challenges the new security environment brings to international humanitarian law. More specifically will the term “No-Law Zone” and the thesis about the need for a third legal paradigm from Blum and Heymann be discussed (Blum & Heymann, 2010, s. xiii). The discussion will be divided into the following themes; Targeted killings, Weapons use and Combatants. All three elements are often discussed in the context of international law and public international law and its legal principles in regard to war on terror.

The following questions will be answered:

• How can a third legal paradigm support the modern warfare?
• How are targeted killings compatible with international humanitarian law?
• Is the war on terror a global conflict? Will it ever end?

The next part will analyze and discuss “No-Law Zone” based on the three themes and the above questions. The paper will present the complexity of how different paradigms and definitions can change the interpretations of the legal principles.

Analysis and discussion

Before the discussion on the war on terror and the challenges it gives on the legal questions to the international community, it is important to look at the definition of terror – or the lack hereof. The international community have been reluctant to make a universal and legal binding definition. The reason of this could be that the term is politically, emotionally and legally charged and different definitions make different counterterrorism strategies. A universal agreement would might limit some states fight on terrorism. This paper will include examples from the US and their administration of the war on terror. Therefor is the US’s definition on terrorism highlighted:

“premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents” (Deparment of State, 2005).

In 1997 the UN General Assembly tried to describe a terrorist activity:

“Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them (Assembly, 1997).

The Secretary General and General Assembly have tried to work towards a unified definition so a comprehensive Convention on terrorism could form, but it has not yet succeeded. The importance of an agreed definition is more necessary now than before, because terrorism have evolved from a domestic problem to an international dimension, where it is crossing borders and the criminal violence is beyond ‘ordinary’ and more inclination to warfare (Frowe, 2011, s. 182). A universal definition will support the coordination of international collaboration, based on the accepted rules of warfare. The rules, more specific international law and domestic law is described from Blum and Heymann as inapplicable and irrelevant in the global war on terror which have created the term No-Law Zone. Because no law is applicable in the war against terror the No-Law Zone is formed and Blum and Heymann main thesis is there is need for a third legal paradigm to correspond to the new warfare.

Targeted killings – Warfare vs. Lawfare

Before the discussion of targeted killings and their compatibility to international humanitarian law and public international law, a short description of international humanitarian law will be made.

International humanitarian law also known as jus in bello, addresses the acts in war – how to conduct war. The origin of war, if the war is morally permissible and just, is the rules of jus ad bellum. Jus in bello describes what qualifies a combatant, what a legitimate target is, legitimate tactics and the protection of prisoners of war (POW). It also constitutes the principle of distinction between combatants and non-combatants and furthermore, it describes the principle of necessity and proportionality. The necessity principle states that combatants only can use armed force when necessary and as last resort. The proportionality principle requires combatants to only use the amount of force that is proportionate with the military advantage is to be gained. The three principles are also included in costumery law and aims to minimize suffering in armed conflicts (Rochester, 2016, s. 59). The four aspects and the principles are constituted in the Geneva conventions, which purposes is to uphold respect for human personality and dignity (ICRC, 1949, s. 19).

Targeted killings, mainly drone attacks, creates various challenges in international humanitarian law and public international law. Firstly, is the challenge of the paradigm targeted killings is being carried out in – Is it an act in peacetime where lawfare applies or in wartime where warfare applies? Hereunder also the challenges of states sovereignty when using targeted killings as counterterrorism strategy. Secondly is the discussion on collateral damage of civilians – are the three principles adhered to?

The distinction of targeted killings in either peacetime or wartime is important. This distinction is key to the interpretation of international humanitarian law and also public international law in regarding to targeted killings. For example, the US declaration of war against terror after 9/11 made a clear distinction and favored the paradigm of war. This warfare-paradigm made it permissible for the US to kill people without trial, which is only allowed in limited circumstances – such as self-defense. The right to self-defense is defined in The UN Charter Article 51 as the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN (Nations, 1945, s. Art. 51). If a person poses immediate imminent threat to security the claim to self-defense can be made under the UN charter. In wartime a government may use deadly force against a combatant and an enemy can be killed not because they are guilty, but because they can be potentially dangerous to a state. A challenge to the right to self-defense is how a state define immediate and imminent threat – when is a terrorist showing the immediate and imminent threat? How much intelligence and information on a person or group is enough before a state can claim they act in self-defense? On the other side if a state takes the peacetime-paradigm or lawfare-model it should use domestic criminal law to punish the terrorist. In this paradigm terrorism would be a crime and not an act of war. Instead of killing the illegal fighters on the battlefield they should be captured and tried in court as illegal fighters. Targeted killings would not be legal in the view of peacetime-paradigm since a government are not allowed to bomb its population and not to mention other states population. Here it would be necessary to use all means to catch the terrorist and put forth a fair trial. The government should use law enforcement to capture the person that holds a threat to national security. This paradigm holds more restrictions than the warfare-paradigm in regards of targeted killings and the current law. The term No-Law Zone is appropriate for this vacuum between the two paradigms, which claims that a new third legal paradigm with reviewed legal standpoints is necessary.

The US has nearly in twenty years fought terrorism around the world with targeted killings and armed forces. The global war on terrorism have created broad interpretations of Article 51 in the UN Charter and it have made the US do targeted killings in other states with and without the states acceptence. The US have used the argument ‘right to self-defense’ when crossing the borders to Pakistan and doing numerous targeted killings without the acceptence of the government. This aggression could easily be stated as a violation of Pakistan’s sovereignty. The UN is based on the principle of the sovereign equality, which means that the state has political and territory authority (Nations, 1945, s. Art.2). Another state is strictly prohibited from doing operations in the territory of another state without acceptence from the government. This leads the US targeted killings tactic to breach international law. The US disagree against this accusation and distress its inherent right to self-defense, the pre-emptive use of force on the war against terrorism and that the war is global and therefor there are no geographical boundaries.

As described at the beginning of this part, another challenge about the use of targeted killings is the collateral damage it causes. Is it common that a terrorist surround himself with innocent bystanders, and becomes collateral damage in a strike. The drone does not distinguish between non-combatants and terrorists. The distinction principle in jus in bello says that attacks must be limited to military objectives and prohibits loss of civilian life. The Bush and Obama administration have both claimed that their authorized targeted killings are in line with the three principles in international humanitarian law. The argument for using targeted killings is that the civilian casualties is at a minimum since the attacks is carefully planned to only hit the terrorist. To view this challenge through the warfare-paradigm the collateral damage to civilians is legitimate and a consequence of war – however, only if the proportionate principle in jus in bello is respected. In the lawfare-paradigm the law enforcement must hold fire if any danger to civilians can occur. The paradigms create two different versions to interpret the use of targeted killings in regard to collateral damage and again the war on terror becomes a No-Law Zone.

Weapons use – The inequity in war of terror

This part will focus on weapons use in regard to terrorism and non-international armed conflict and include jus in bello and other relevant international law. It will start with a short presentation of the history of weapon prohibition.

The first Declaration to outlaw specific weapons, Dumdum bullets, during war was in 1868 (St. Petersburg Declaration). Then came prohibition of anti-personnel mines, booby-traps, laser weapons, chemical and biological weapons (Fleck, 2008, s. 137-160). Customary law is a fundamental aspect when dealing with weapons use during war. For example, is the use of nuclear weapons not explicit prohibited but there is numerous multilateral and bilateral treaties, to prohibit the proliferation of nuclear weapons. Customary law is a factor in delimiting states of using nuclear weapons in war, because of the mass destruction it contains. The deterrence of mutual destruction keeps states from using the weapon against each other, which is important for the uphold of international peace and security (Fleck, 2008, s. 169).

In the IncendiariesProtocol in Article 2 the protection of civilians and civilian object is stated. It says that deliberate attacks on civilians and civilians’ objects, particularly terrorizing attacks, are prohibited (Fleck, 2008, s. 158). This aspect is something that terrorist does not regard – they deliberately injure civilians to create fear. The inequity in the war on terror is high between the parties involved, when it comes to technology capabilities, weapons and the compliance with the laws of war. Terrorist do not follow jus in bello and often acts in direct contradictory direction. This also regarding weapon use – they use bombs, landmines, IED’s and are often not carrying their arms openly. Even though the playing field is uneven states should uphold international humanitarian law regarding weapon use. If the US had refrained from calling terror ‘war’ and continued to address the problem as a crime it would have to operate within domestic law and the No-Law Zone would not have existed. The targeted killings would not have escalated as much, and the counterterrorism strategy needed to involve more domestic tactics. The domestic law could have evolved into the third legal paradigm and have tried to accommodate additions to the domestic law and national security.

Combatants – A new terminology

As previously mentioned, the modern warfare has evolved from interstate war to intrastate hereunder civil war and non-international armed conflicts. This change in warfare have also changed the way the international community interpret the term combatants.

International humanitarian law constitutes a clear distinction between combatants and non-combatants. To qualify as a combatant the following must be present:

1. Be part of a hierarchical group, such that there is a chain of command.
2. Wear a distinctive emblem that is visible from distance.
3. Bear arms openly.
4. Conduct their operations in accordance with the laws and customs of war (ICRC, 1949, s. 39).

The reason for distinguishing combatants from non-combatants is that only combatants are legitimate targets in war – killing non-combatants is a war crime. A non-combatant is a civilian, an innocent person that have nothing to do with the war.

The new warfare such as terrorism causes a new terminology to emerge. It is not only combatant vs. non-combatant but also terms like unlawful combatant, illegal fighters and ‘civilians taking direct part in hostilities’ (Blum & Heymann, 2010, s. 80). One of the reasons why these distinctions of a combatant have emerged is to bend the legal rules of protection. The US have especially used this lack of protection of its captives and named the captured Al Qaeda fighters as “unlawful combatants”. This gave them no entitlement to POW protection, and the US jailed them for an indefinite period at Guantanamo Bay where the interrogations techniques have been associated with torture. These coercions methods are a violation of the Common Article 3 of the Geneva Conventions. This Article explains the protection rights of people in conflicts in non-international character (ICRC, 1949, s. 35). The US have claimed war on terror but is not defining the terrorist as lawful combatants and are using a definition that are diminishing the terrorist humanitarian rights. Another reason for the new terminology could be the lack of a universal definition of terrorism as mentioned in the beginning of the paper. The US definition on terrorism have not formulated any specifics about who the terrorist can be, besides subnational groups or clandestine agents. The definition-lack leaves a gap for the states to make their own definition of terrorism and this includes their own interpretation of which combatant a terrorist is.

Is a terrorist a lawful combatant? Looking at the qualifications of a combatant then a terrorist can meet some of the criteria. Terror organization such as Al Qaeda and Islamic State are very well-organized and hierarchically constructed with a clear chain of command. These terror groups also have a distinction and sometimes were a “uniform”. But on the other hand, terrorist notoriously try to blend in amongst non-combatant and also hides their arms – such as suicide bombs etc. But the most obvious disqualification of the criteria’s is that they fail to meet jus in bello by targeting civilians and use human as shields. Article 44.2 in Additional Protocols of the Geneva Conventions states that:

“While all combatants are obliged to comply with the rules of international law applicable in armed conflicts, violations of these rules shall not deprive a combatant of his right to be a combatant, or if he falls into the power of an adverse Party, of his right to be a prisoner of war” (ICRC, 2010 , s. 37).

This could mean that terrorist could keep their combatant status even when they break jus in bello. Again, provides the international humanitarian law a No-Law Zone because the legislation is contradicting itself and it is up the states to interpret the law in favour of their political gain.

Conclusion – A third legal paradigm

This paper has analysed and discussed new warfare and some of the challenges it contains in regard to international humanitarian law and public international law. A third legal paradigm should be developed to support the modern warfare in a way the current law cannot. The current law has to be modified to accommodate additions between domestic law and international law. The third legal paradigm should take into account that peacetime and wartime create different legal challenges. The legal paradigm should include the special context of terrorism and fit the complexity of the new type of combatants and the global battlefield. The paradigm also needs to create respect for national sovereignty, human dignity and regulate the use of weapons. It should also state something about the duration of the war on terror – The ongoing war from the US and its allies, has been going on for almost twenty years with no geographical and temporal boundaries. Hopefully could the third legal paradigm subtract the No-Law Zone term and create a more unified legal front between the states with more political equality and transparency.

Reference

1. Assembly, U. G. (16. Januar 1997). UNdocs/A/RES/51/210. Hentet fra UNdocs: https://undocs.org/en/A/RES/51/210
2. Blum, G., & Heymann, P. b. (2010). Laws, Outlaws and Terrorists. London: The MIT Press – Cambridge.
3. Deparment of State. (2005). Annual country reports on terrorism. Hentet fra Legal Information Institute: https://www.law.cornell.edu/uscode/text/22/2656f
4. Fleck, D. (2008). The Handbook of International Humanitarian Law. Oxford: Oxford University.
5. Frowe, H. (2011). The ethics of war and peace – An introduction. New York: Routledge.
6. Heymann, G. B. (2010). Laws, Outlaws and Terrorists. London: The MIT Press – Cambridge.
7. ICRC. (1949). The Geneva Conventions of 12 august 1949. Geneva: International Commitee of Red Cross.
8. ICRC. (2010 ). PROTOCOLS ADDITIONAL to the Geneva Conventions. Geneva: International Commitee of Red Cross.
9. Murphy, G. (28. March 2016). Why and How to End the War on Terror. Hentet fra PeaceAction: https://www.peaceaction.org/2016/03/28/why-and-how-to-end-the-war-on-terror/
10. Nations, U. (26. june 1945). UN CHARTER. Hentet fra UNITED NATIONS: https://www.un.org/en/sections/un-charter/chapter-vii/index.html
11. Rochester, J. M. (2016). The New Warfare. New York: Routledge.

Abstract

The following study intends to analyze the evolution of theories regarding the recognition of states in international law. Whereas the Montevideo Criteria contains the legal requirements for statehood, recognition is largely dependent on the political will of the other states. The question faced by the contemporary international community is whether a state is held to recognize another if it meets the said requirements. While the Constitutive Theory insists that a state could only exist as an international legal person if it is recognized by previously-established states, the Declarative Theory rejects such a discretionary process. While the common practice among states was argued to be somewhere in the middle of these two theories, the declarative conception is much closer to the current model followed by the international community as it is also enshrined in the rules contained in the Montevideo Convention and reiterated by the Badinter Commission.

Keywords: State recognition, Montevideo Convention, declarative theory, constitutive theory, international law.

Introduction

States play a primordial role in the structure of legal relationships that are commenced, modified or extinguished at an international level. In the field of international relations, the means by which states act and interact should be governed by principles such as sovereignty and equality. In reality, some states decide to act in a way dictated by geopolitical dynamics, that is, the power or influence held and through which their interests could be enforced at regional or global level. Thus, depending on each state’s interests, massive inconsistencies can exist between the strategies that are carried out. One of the most elementary instruments used in diplomacy is; for these reasons, the mechanism of recognition.

State recognition has an important place in international law; being a unilateral act through which the very existence of a state and its status as a subject of international law are acknowledged. Only the states, as primary subjects of international law, are subject to this procedure, as international organizations are founded and act in a rather distinct manner.1 An international legal person is capable of having rights and duties under international law, and states, in particular, can wield virtually any right and be held to fulfill any duty to which it has agreed. Without recognition, a state’s capability to enter relations with another state is greatly limited due to its isolation from the international community.

Two opposing theories have been developed to explain and order the admission of states into the international community. First, the Constitutive Theory embraces the opinion that any state completes its formation through recognition by other states. Recognition is thus seen as a requirement for statehood, but no state can be forced to recognize another. This discretionary nature of state recognition arguably turned the international community into an elite club of nations lead by the Great Powers. Second, the Declarative Theory came as a response to the constitutive conception, ruling out the necessity of international recognition as a condition for statehood, and introducing unbiased standards codified as the Montevideo Criteria.

Statehood and sovereignty

Statehood designates the feature of an entity that exists in the international community and respects the Montevideo Criteria. In an attempt at defining the legal and political notion of state, the Convention signed at Montevideo in 1933 established that a state must consist of “(a) a defined territory; (b) a permanent population; (c) a government; and (d) the capacity to enter into relations with other states”.

The concept of sovereignty describes the supreme political authority that wields power inside and upon a given territory and the population that inhabits it, while also being able to enter into relations with other sovereign and independent states, independently of any exterior influence.2 For this reason, the latter two conditions imposed by the Montevideo Criteria are, in fact, two sides of the same coin, correspondingly internal and external sovereignty. Thus, a state has to establish and maintain the legal (rule of law) and political order (democracy) on an internal level, while in the international community it can exercise rights and fulfill duties, as any other international legal person and in accordance with international treaty provisions.

Although the Montevideo Criteria were agreed between American states, and not by the entire international community, this definition of statehood was only formally recognized as it was already observed prior to the 1933 Convention. Similar criteria were used by the Badinter Committee (the Arbitration Commission of the Conference on Yugoslavia) in 1991 when it concluded: ‘that the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty”.3

Types of recognition in international law

Although recognition is primarily applicable to states, certain circumstances exist when these international legal subjects can choose to use particular forms of recognition in relation to various political reasons. In this regard, many forms can be distinguished depending on the chosen criteria. From a strictly legal point of view, recognition could be either legal (de jure) or factual (de facto). At the same time, recognition can be expressed or tacit. Nonetheless, states practice limited types of recognition as well, such as government or diplomatic recognition, respectively.

De jure and de facto recognition

Throughout history, there have been cases where a great number of states refused to de jure recognize a particular country on ideological grounds.4 Nonetheless, such a state gained de facto recognition and thus established relations with other states. An example would be the Soviet Union, which was established in 1917, de facto recognized by the UK Government in 1921, but not formally (de jure) recognized until 1927.5

Another example is the Republic of China (Taiwan) and its dispute with the People’s Republic of China. In this case, Taiwan enjoyed worldwide recognition and held a seat as a permanent member of the UN Security Council until 1971, when UN member states ceased to de jure recognize the Republic of China and recognized the People’s Republic of China (only de facto recognized until then) instead.6

Express and tacit recognition

Existing states can choose to recognize a new state either explicitly, through an official declaration, or tacitly, by any means from which it can be implied that the new state would be treated as any other international legal person. For instance, a tacit type of recognition could be in the form of sending a diplomatic mission (with the acceptance of credentials) or even signing a bilateral treaty.7 However, not all bilateral treaties imply recognition and neither do multilateral treaties. In fact, the United Nations Charter is a prime example, in that many of its signatories do not recognize all other members, so the process of implied recognition should be studied on a case-by-case basis.8

Government recognition

In cases of internal conflict or disturbances (civil war, revolution, or a coup d’état), the international community can find itself in the position to recognize the authority of a faction or entity over a previously-recognized state. This type of recognition concerns not the state itself, as it was already recognized as an international legal subject, but the government and its power within the given state’s territory. A particular problem arises in the case of governments-in-exile, which are only de jure recognized as such, while in fact the territory and population of the state are under the authority of another entity.9

Although the Soviet Union occupied and annexed the Baltic States of Lithuania, Latvia, and Estonia, the international community refused to recognize their belonging to the USSR. As a consequence, their statehood was considered to have been merely interrupted in 1940 and only resumed with the dissolution of the USSR in 1991. For this reason, the Baltic States are considered to be the continuing states of their interwar counterparts rather than successor states of the Soviet Union.

When a state recognizes a certain government, in doing so it expresses its will to treat that particular entity as the sole political authority of the respective state.10 Once a certain state is governed by an entity that is really considered to be capable of maintaining stability in terms of being supported by a clear majority of the population and also exerting control over most of the state’s territory, it should be granted recognition. However, such a practice was discontinued in recent times, with the governments of the United Kingdom, Australia, Canada and several civil law countries across Europe cited as examples.11

Diplomatic recognition

In some cases, state recognition can be independent of full-fledged diplomatic relations, which usually refer exclusively to the bilateral ties between two countries. In other words, if a state cannot be granted full formal recognition by the international community, its relations with individual states can be either interrupted or resumed due to diverse reasons. An example could also be the case of Taiwan, which lost its UN membership and is no longer recognized de jure by the international community. Notwithstanding, Taiwan continues to meet the criteria for statehood as established at Montevideo and enjoys de facto recognition through cultural and trade relations with other states. However, the People’s Republic of China wields greater economic influence on the world stage and has thus conditioned its diplomatic relations with other states by the immediate termination of any formal recognition or diplomatic mission of these states in the case of Taiwan.12

Withdrawal of recognition

One particular issue in terms of recognition would be its withdrawal. It has been argued that such a feat would be much easier accomplished in cases of factual recognition rather than full-fledged, de jure recognition.13 In this regard, the withdrawal of recognition is, at least in the circumstance of de jure recognition, an exceptional event that can occur whenever a state considers that such action is appropriate.14

Constitutive theory of statehood

State recognition has been initially founded on the Constitutive Theory of Statehood, of which its essence could be traced back as early as 1815, at the Peace Congress of Vienna; the final act of this congress recognized only 39 sovereign states in Europe, and it also established that any future state could be recognized as such only through the acceptance of prior existing states.15 The reason for such a distinction between the already established states and any future claim of statehood was argued to reside in the „historical longevity” of the former.16

According to this theory, a state is considered to be a legal international person only if it is recognized as sovereign by other states. In this respect, L.F.L. Oppenheim considered that “International Law does not say that a State is not in existence as long as it isn’t recognized, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law”.17 Such constitutive views were also found in the works of Hegel, which claimed that every state “is sovereign and autonomous against its neighbors, [being] entitled in the first place and without qualification to be sovereign from their point of view, i.e. to be recognized by them as sovereign”, while also admitting that “recognition […] is conditional on the neighboring state’s judgment and will”.18

James Crawford, “Recognition in International Law: An Introduction to the Paperback Edition 2013”, in Hersch Lauterpacht, Recognition in International Law, Cambridge University Press, 2013, p. xxxi.

On the other hand, this discretionary prerogative should have its limitations. Kelsen was of the opinion that ‘a state violates international law and thus infringes upon the rights of other states if it recognizes as a state a community which does not fulfill the requirements of international law’.19 However, the opposite of this could also be possible: a state refusing to recognize another even if it does fulfill the criterion for statehood. For this reason, Lauterpacht proposed that states have a legal duty to recognize one another when the conditions of statehood exist20, although Kelsen denied the notion of any such duty.21

The weaknesses of this theory include the case in which recognition of a particular state is not unanimous. In this instance, a rigid application of the constitutive principle would mean that the respective state would not be a subject of International Law, which in turn would hold back its capacity to assume rights and obligations in the resemblance of other states that are recognized. However, Lauterpacht considered that the constitutive theory “deduces the legal existence of new States from the will of those already established.”22 In the absence of a body responsible for observing and subsequently declaring that a certain state meets the conditions for statehood, Lauterpacht believed that the already established states are ought to „administer the law of nations”, without being „entitled to serve exclusively” their national interests.23

In addition to this, euro centrism was perceived to be a key feature of such recognitions, as early diplomatic and trade contacts with some Asian countries such as China, Japan, Siam or Persia involved a de facto acknowledgment of their sovereignty, but full-fledged relations and recognition were only granted upon meeting a certain „standard of civilization”.24 On the other hand, as the Pax Britannica and Splendid Isolation doctrine, began to fade in favor of a more American-led international community, the constitutive theory inevitably followed suit.

Declarative theory of statehood

While the constitutive theory gained ground and dominated international law since 1815, it only lasted until the shift in geopolitical dynamics that marked the beginning of the 20th century. At the end of the previous century, a great number of European nations became independent – Germany, Italy, Romania – and the First World War (1914-1918) led to the further emergence of sovereign states in Europe – Poland, Yugoslavia, Czechoslovakia – with the establishment of British or French mandates in some areas after the partition of multinational empires such as Austria-Hungary or the Ottoman Empire. However, the speech delivered by US President Woodrow Wilson on his Fourteen Points propagated the concept of self-determination, with direct consequences for the international order.

In Wilson’s conception, the lack of self-determination has been at the centre of Europe’s turbulent history. The Great Powers, such as Britain and Austria, have previously resisted any attempt to partition the Ottoman Empire, fearing that the resulting independent states would be small and too fragile, potentially easy targets for annexation, and could, thus, undermine the long-established international order based on the balance of power.25 The Wilson doctrine has arguably marked the end of Pax Britannica and paved the way for greater US influence on the world stage.

In response to these changes, the constitutive theory lost its pre-eminence in favor of a new conception – the declarative theory of statehood. While the constitutive theorists claimed that recognition is a requirement for statehood, the declarative conception established by the 1933 Convention of Montevideo challenged such an idea; according to article 3 of this treaty, statehood does not depend on recognition by other states. The declaratory model argues that a state does not obtain international legal personality through the consent of others, so therefore the recognition of a state signifies nothing more than the admission of a factual situation.26

While the common practice among states was argued to be somewhere in the middle of these two theories, the declarative conception is much closer to the current model27 followed by the international community as it is also enshrined in the rules contained in the Montevideo Convention and reiterated by the Badinter Commission.

Conclusions

It has been recently argued that the ongoing contradiction between the constitutive and declarative theories should not be of as much interest as the applicability of international law on matters such as state recognition.28 In this regard, Oppenheim pointed out – as early as the beginning of the 20th century – that recognition depends more on the foreign policy of states rather than the rules of international law.29 Nonetheless, as international law traces its sources to the treaties signed by states with the intention of protecting their interests, this is sufficient reason to assert that national interests are definitely at the foundation of such legal rules.

However, international rules could be solely applied if an international and independent organ is invested with the power to declare which state meets the requirements for statehood and which does not. Such a body should be in no circumstances bound by the will of another international authority, although its membership and scrutiny would be dependent on such an entity. One solution to overcome this problem would be to provide a legal mechanism for the selection of its members. Its independence should be guaranteed by means of some system of checks and balances with the UN Assembly or Security Council.

Bibliography

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13. Roland Portmann, Legal Personality in International Law, Cambridge University Press, 2010;
14. Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution, Praeger Publishing, Westport, 1999;
15. Yana Zuo, „Self-Identification, Recognition and Conflicts: The Evolution of Taiwan’s Identity 1949-2008”, in Thomas Lindemann, Erik Ringmar, International Politics of Recognition, Routledge, 2016.

Eurocentrism is under challenge in international law today.[footnoteRef:1] One may ponder what is eurocentrism. The term ‘Eurocentrism’ denotes a world-view that posits European history and values as “normal” and superior to others, thereby helping to produce and justify Europe’s dominant position within the global capitalist world system.[footnoteRef:2] In order to understand how eurocentrism had continuously affected the making of international law, we shall have a glance on the history of international law and its relationship with euro centricity. [1: A.A. Fatouros, ‘International Law and the Third World’ (1964) 50(5) Virginia Law Review accessed 19 August 2019] [2: Hannah Franzki, ‘Eurocentrism; InterAmerican Wiki: Terms – Concepts – Critical Perspectives.’ (Universitat Bielefeld, 2012) accessed 19 August 2019]

The history of international law can be traced back to the sixteenth century. It is used by the Western states to impose political, economic, and legal ideas and practices on the non-Western state through colonialism, capitulations, imperialism, and the standard of civilization. A structure for global civilization was built by the Western states based on the Westphalian model of international relations developed in post-Renaissance Europe.[footnoteRef:3] Westphalian civilization is composed of sovereign states interacting in a condition of anarchy. In order to maintain such a system, states require substantive rules to regulate their interaction, rules originally called the law of nations and international law.[footnoteRef:4] International legal literature recognizes that the structure and substantive rules of state interaction in international relations were entire of Western origin. [3: James Thuo Gathii, ‘International Law and Eurocentricity’ (1996) 9(98) EJIL < http://www.ejil.org/pdfs/9/1/1476.pdf> accessed 19 August 2019] [4: Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ (2011) 19 University of Helsinki accessed 19 August 2019]

International Law began with the 1648 Peace of Westphalia Treaty, the symbol of the system of independent states, that was supposed to grant sovereign equality by dividing Europe into sovereign and independent states. Scholars had regarded the treaty as the formal beginning of the modern inter-state system, was applicable to the civilized European sovereign nations not the uncivilized world of the non-European. The Peace of Westphalia gave official birth to a European inter-state system that removed internal issues, such as whether a country was Catholic or Protestant, from the realm of international politics.[footnoteRef:5] Non-intervention in the domestic affairs of other states was, thus, a structural and substantive component of the Westphalian system. In short, Westphalian civilization began in the seventeenth century with an attempt to create a stable structure for inter-state relations that excluded the nature of domestic politics, economics, and society from being a concern of diplomacy and the law of nations.[footnoteRef:6] [5: Richard Cavendish, ‘The Treaty of Westphalia’ (Months Past, n.d) accessed 19 August 2019] [6: David P.Fidler, ‘Revolt Against or From Within the West?: TWAIL, the Developing World, and the Future Direction of International Law’ (2003) Articles by Maurer Faculty < https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3126&context=facpub> accessed 19 August 2019]

Therefore, it shows that international law consists of doctrines and principles developed in Europe, influenced by European history and experience.[footnoteRef:7] Tracing back to the Western history of international law, we can see that it is part of the expansion of European civilization over the world. It opened the classic Eurocentric Western historiography of international law to the pre-colonial experiences of Non-European peoples and religions.[footnoteRef:8] By the eighteenth century, as colonialism expanded, jurists gradually shifted from the universalist jus gentium[footnoteRef:9] to a law of nations used by diplomats and applicable among the European States. In the year of 1904, there were forty-six States with full sovereign rights in the ‘international community, which included 22 European States, 21 American States, Japan, Liberia, and the Independent State of the Congo, which we can see most of the states that take part are the Western states. [7: Shenali D Waduge, ‘International law is Eurocentric and Colonial – Time to change’ (Lankaweb, 23 March 2016) accessed 19 August 2019] [8: R.P. Anand, “On the Influence of History on the Literature of International Law” Essays in Legal Philosophy, Doctrine and Theory (1983) 341] [9: The law of nations.]

Everything changed when World War I lead Europe into conflict due to structural intolerance. The War had interrupted the homogenization of the non-Western world. In terms of international law, the War had changed the basis and framework of international law, by fading away the civilizational ideology and the indiscriminate extension of the international legal order to all states, regardless of their race, culture, or geographical location. After the end of World War II, the Soviet Union had emerged as a great power drove the West’s prior universal expansion. The imperial and colonial territories of the Soviet Union began to form new sovereign states in a decolonization process, diverse cultural and civilizational histories, and different political and economic interests from the West. The sovereign state has been accepted by non-European peoples to upload basic rules of co-existence. From here, we can see that international law become more ‘universal’ gradually. The Westphalian civilization was universalized under the forces of international politics after World War II.

The process of decolonization assisted procedural pluralization because it creased the amount of new, developing states in the international system. The involvement of developing countries after World War II had tried to expand and deepen the pluralization of international law, which is, change the euro-centricity of international law that was historically made and implemented.[footnoteRef:10] Such changes were take place in two ways. First, these states began to exercise their rights as states under international law, creating a significant body of state practice affecting treaty and customary international law that could not be ignored. Second, developing states became members of international organizations, such as the United Nations, and began to influence the process of international law through participation in debates, decisions, and cooperative activities undertaken in this institution. The United Nations is perhaps the most obvious example of an institution created on the basis of “Western” legal ideas and now being successfully utilized by the non-Western members of the third world.[footnoteRef:11] Developing counties used their growing quantitative presence in the international system to try to ensure that the manner in which international law was made and implemented no longer reflected only the interests and prejudices of the great powers of the West. [10: Mohammad Shahabuddin, ‘The ‘Standard of Civilization’ in International Law’ (Volkerrechtsblog, 12 December 2018) accessed 19 August 2019] [11: A.A. Fatouros, ‘International Law and the Third World’ (1964) 50(5) Virginia Law Review accessed 19 August 2019]

Despite international law is imported the character of universality, the scholars had perceived that the international law has failed to fulfill the true meaning of ‘international’ as it has rooted on historical and cultural beliefs of one region, hence it is in favour of Europeans, meanwhile, it has neglected the norms, cultures as well as concerns of third world. Undeniably, most of the rule-makers of international law are originated from the West, therefore the international law has been incorporated with the elements of Europeans and Christianity which is emphasis on capitalism, manifest destiny, and civilization. The Bible-carrying missionary has justified the colonization over the non-European states as European states opined that they are more humane and advanced, thus they had assumed the moral responsibility to civilize the nation and society which has undergone poor development. Antony Anghie, a very famous scholar, he was of opinion that imperialism has become legitimate by the sovereignty doctrine in international law. It is because the European state which is deemed sovereign can do whatever they want to the non-sovereign state as there is stringency of legal attribute for a non-sovereign entity to proclaim any legal confrontation. One must note that non-European states are excluded from the definition of sovereign by the virtue of positivist jurisprudence of that time.[footnoteRef:12] Therefore, any method used for imperialism has become legal and justified as they viewed the colonization is “benefit” to non-European states.[footnoteRef:13] [12: Antony Anghie, ‘Finding The Peripheries: Sovereignty And Colonialism In Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal accessed 20 August 2019] [13: Basil Davidson, Africa In History (Simon & Schuster 1991).]

For example, a famous international treaty, The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It is an international legal agreement between all the member nations of the World Trade Organization (WTO). Such agreement laid down the minimum standards for the regulation by national governments of many forms of intellectual property for the countries that ratified it to be bind to it. However, since TRIPS came into force, it has been subject to criticism from developing countries, academics, and non-governmental organizations.

“TRIPS imposed on the entire world the dominant intellectual property regime in the United States and Europe, as it is today. I believe that the way that intellectual property regime has evolved is not good for the United States and the EU; but even more, I believe it is not in the interest of the developing countries.” Such line was said by Joseph Stiglitz, an American economist, in a book named Making Globalization Work. Many advocates of trade liberalization regard TRIPS as poor policy as its wealth concentration effects[footnoteRef:14] and its imposition of artificial scarcity[footnoteRef:15] on the citizens of countries that would otherwise have had weaker intellectual property laws. TRIPS also failed to accelerate investment and technology flows to low-income countries, such as India. Statements by the World Bank indicate that TRIPS has not led to demonstrable acceleration of investment to low-income countries, though it may have done so for middle-income countries. Less-developed countries have argued that TRIPS’s flexible provisions, such as compulsory licensing, are near-on impossible to exercise. In particular, less developed countries have cited their infant domestic manufacturing and technology industries as evidence of the policy’s bluntness.[footnoteRef:16] From the study above, we can see that even if the international law had become ‘universal’ nowadays, but it is still in favour of the developed countries, such as United States of America, a Western country, and neglecting the developing or undeveloped countries, such as India, an Asian country. [14: Moving money from people in developing countries to copyright and patent owners in developed countries] [15: The scarcity of items that exists even though either the technology for production or the sharing capacity exists to create a theoretically limitless or at least greater quantity of production than currently exists.] [16: Ben Willis, ‘The Arguments For and Against the TRIPS Agreement’ (E-International Relations Students, 23 December 2013) accessed 20 August 2019]

Asia today is underrepresented in various international regimes. For example, Asian states are the least likely to have signed many other human rights and international humanitarian law treaties. Asian states have the lowest take-up in the ICCPR[footnoteRef:17] and ICESCR[footnoteRef:18], but also the conventions against racism, torture, and discrimination against persons with disabilities, such as Malaysia. Malaysia did not ratify ICCPR and ICESCR.[footnoteRef:19] Apart from this, although Japan is an Asian representation on the UN Security Council, however, Asian states are underrepresented in the leadership positions of global governance. The continent has only one-fifth of the seats on the Council, including one permanent seat. Even where Asian states have appropriate representation, however, such as the UN General Assembly, they do not operate as a regional bloc. Unlike the African and Latin American states, for example, the Asia-Pacific Group at the United Nations never seeks to achieve common positions on policy matters, and discussion is generally limited to candidacies for international posts. Asian states have tended to have less of a voice in international affairs than their number, size, and power might otherwise warrant.[footnoteRef:20] Individual states, notably China, are exercising growing influence, but it is hard to identify areas in which Asian states have had an impact as a group.[footnoteRef:21] [17: International Covenant on Civil and Political Rights] [18: International Covenant on Economic, Social and Cultural Rights] [19: Simon Chesterman, ‘Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures.’ (2015) NUS Law Working Paper 2015/014 accessed 20 August 2019] [20: B.S. Chimni, ‘Asia, International Law, and International Institutions: A Comment’ (Opinio Juris, 17 January 2017) accessed 20 August 2019] [21: Teemu Ruskola, ‘Where Is Asia? When is Asia? Theorizing Comparative Law and International Law’ (n.d) 44(879) the University of California, Davis < https://lawreview.law.ucdavis.edu/issues/44/3/Concept%20of%20Asia%20in%20International%20Law/Ruskola.pdf> accessed 20 August 2019]

To sum up, the international law nowadays is still eurocentric, which it is neglecting Asian social and cultural values. Asia countries are still in low participation in the law-making of international law and even the acceptance of international law. The involve of Asian countries in law-making process and the removal of euro-centricity in international law should be put into effort. As Asian tradition has its own, culturally distinct notions of rights, duties, and sovereignty, which differ from those of Western liberalism, should be notable. For example, so-called Confucian capitalism has been taken quite seriously as an economic phenomenon — as a major competitor and even a possible model for the West to emulate. In order to remove the euro-centricity of international law, the Third World Approach of International Law had come into picture.

References

Online Journal

1. A.A. Fatouros, ‘International Law and the Third World’ (1964) 50(5) Virginia Law Review accessed 19 August 2019
2. Antony Anghie, ‘Finding The Peripheries: Sovereignty And Colonialism In Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal accessed 20 August 2019
3. David P.Fidler, ‘Revolt Against or From Within the West?: TWAIL, the Developing World, and the Future Direction of International Law’ (2003) Articles by Maurer Faculty < https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3126&context=facpub> accessed 19 August 2019
4. Hannah Franzki, ‘Eurocentrism; InterAmerican Wiki: Terms – Concepts – Critical Perspectives.’ (Universitat Bielefeld, 2012) accessed 19 August 2019
5. James Thuo Gathii, ‘International Law and Eurocentricity’ (1996) 9(98) EJIL < http://www.ejil.org/pdfs/9/1/1476.pdf> accessed 19 August 2019
6. Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ (2011) 19 University of Heisinki accessed 19 August 2019
7. Simon Chesterman, ‘Asia’s Ambivalence About International Law & Institutions: Past, Present and Futures.’ (2015) NUS Law Working Paper 2015/014 accessed 20 August 2019
8. Teemu Ruskola, ‘Where Is Asia? When is Asia? Theorizing Comparative Law and International Law’ (n.d) 44(879) University of California, Davis < https://lawreview.law.ucdavis.edu/issues/44/3/Concept%20of%20Asia%20in%20International%20Law/Ruskola.pdf> accessed 20 August 2019

Websites

1. B.S. Chimni, ‘Asia, International Law and International Institutions: A Comment’ (Opinio Juris, 17 January 2017) accessed 20 August 2019
2. Ben Willis, ‘The Arguments For and Against the TRIPS Agreement’ (E-International Relations Students, 23 December 2013) accessed 20 August 2019
3. Mohammad Shahabuddin, ‘The ‘Standard of Civilization’ in International Law’ (Volkerrechtsblog, 12 December 2018) accessed 19 August 2019
4. Richard Cavendish, ‘The Treaty of Westphalia’ (Months Past, n.d) accessed 19 August 2019
5. Shenali D Waduge, ‘International law is Euro centric and Colonial – Time to change’ (Lankaweb, 23 March 2016) accessed 19 August 2019

Journal

1. R.P. Anand, “On the Influence of History on the Literature of International Law” Essays in Legal Philosophy, Doctrine and Theory (1983) 341

Book

1. Basil Davidson, Africa In History (Simon & Schuster 1991).