Category: International Law

Is international law Really a law?

The most seen to; issue regarding those who study international law is whether or not it can be seen as ‘real law’. There are two different types of thoughts that can be perceived through this, one being from the realist view and the other from a liberal view. I will be looking at both then coming to a conclusion on whether or not I believe International law is really a law.

To being tackling this question, it is vital to comprehend with some of the more basic schools of thought based around what ‘law’ is and this will then in tern help us to understand what international law really is; thus, enabling me to create an unbiased argument and reach a conclusion. Perhaps the inability to answer the question as to whether international law is real law or not stems from the fact that the concept of law itself is quite a difficult and controversial concept to define. Thus, the law has been defined in different ways by different scholars and as such, there is no universally accepted definition of what law is. The entire concept of law is challenging to define and has meant different interpretations are open for discussion, one interpretation can be taken from [John Austin (1885) “Lectures on Jurisprudence: or the Philosophy of Positive Law”]

He defined law to be as this; ‘A rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”

Looking at this definition I can extract that in Austin’s eyes Law was seen to be a set of rules and principles that over time were enforced and created recognised authority.

Another extract I used is by

He explained the law as a system made up of rules in order to regulate and control behaviour within communities, in some senses giving people a way of life in order to behave; also, setting some sort of expectations for them, furthermore adding consequences if they were to perhaps do the contrary.

Lastly, I will use a piece of literature I read from [“St Thomas Aquinas called (2006) “Summa Theologica: Part I-II”] his interpretation of the law was “Nothing else than an ordinance of reason for the common good, made by him who has the care of the community and promulgated.” From this piece of literature, I can see that law is seen as that to promote the common good, allowing people to abide by these laws set in place for them.

Law can be seen as a set number of rules that are to be followed by members of societies in effort to regulate behaviour and call for more of a harmonious community. Law is used to reach a common goal and has somewhat basic characteristics such as its universal application and how it is coercive and liberal.

Now that the fragment of ‘Law’ has been explained and differing views from literally scholars have been extracted in order for you the reader to view the interpretation of the word ‘law’ in an unbiased perspective, we can now delve into why there may be a need for law.

Besides the countless obvious reasons we see the law as a necessity, if we were to somewhat tear open the fundamentals in why ‘Law’ is such a prominent act within our own lives and why it effects those within our societies and communities we would be able to reach a conclusion that it is specifically put there in order to regulate the behaviour of those within our societies. However one may say without Laws put in place there is the extreme likelihood of chaotic behaviour and violence to florish; without laws, we would be living in a constant state of violence. If I was to refer back to a scholar I would to Thomas Hobbes he believes that “laws are essential when trying to govern and regulate the behaviour of societies and preserve life within a community”. – [Thomas Hobbes (2002) – Moral and Political Philosophy]

Laws inevitably make things easier when living in a community everyone, knows what laws they should abide by as well has the punishments that occur when the contrary is done, thus, in a way forcing our community to abide by these laws enabling them to live harmoniously.

So now that I have defined law and it has been made clear that we need it in order to shape and mould our societies, we must now delve into what I think international law is.

International law has differing characteristics when compared to domestic laws. When trying to answer the question on whether or not international law is really considered real law. We should view the differing arguments posed by two different schools of thought, enabling us to debate this question thoroughly.

If we are viewing this from a realist point of view, then International law will not be considered a ‘real’ law. Whereas domestic law is considered a ‘real’ law. Some of the arguments used to back this school of thought idea are the following; Firstly, a realist school of thought believes that national interest is above all in terms of importance when regarding states. States will most likely never bargain their national interest for international law. So, in a fact, if there was per say some sort argument or rift caused between the national interest of a country/state and international law, it is paramount that all states would rather their national interest be met above all compared with international law.

A countries foreign policy has one main driving force, and that is the national interest; thus, meaning that some states will only comply with international law when and if it is in accordance with their national interest, however when posed with a conflict involving the national interest of a country and international law the obvious answer, that being national interest will be picked. Realists believe that real law should replace all interests and compliance should be given to it regardless. Realists further believe that a real law should replace all interests and compel compliance regardless of whether it is in one’s interest or not, but since national interest supersedes international law in the relations of countries among themselves, then international law is not a real law.

Furthermore, international law when compared to the strong power and stature that comes with ‘real law’ realists believe that it has an almost unsteady structure. This, meaning that from a realist point of view they would be somewhat unable to enforce their legislation in the same effective way domestic laws can. Somewhat coercive power in needed to compel force among individuals and frankly realists don’t believe that is possible for this to be done by international law.

Lastly, the issue of authority and power is a firm problem when considering international law and whether or not it can be considered a ‘real’ law. As there is no seen to be legislature it becomes uncertain where these laws are coming from. Now if we were to view things from a liberal point of view they believe the complete and total opposite, that international law is in fact a ‘real law’. The main argument the liberals pose is that even though international law is seen to be violated by some more coercive states, it does not however make international law invalid, as all states know that there is such thing as international law and in their best efforts try to abide by the legislation set in place. We can take the 2003 invasion of Iraq by the USA, as an example. Social security were contacted to in order to find some sort of a resolution in order to give the war the go ahead, the reason why this is a good example is the USA had to seek some form of approval in terms of international law in order to continue. This shows that indeed International Law holds some stature and even super countries like the USA needed approval.

Furthermore, when talking about law, if said laws are breached usually punishments are placed to realign the unlawful. Now there are plenty of cases where countries have breached international laws and there have been punishments put in place. However, we can admit that there have been some cases where international law has been breached and those countries have managed to get away with it, however, this has happened in a mere handful of occasions.

Finally, before I conclude I will mention that in terms of this argument on whether international law is or isn’t a ‘real’ law international law is seen to be less utilisable when compared to domestic law, as it has more prevalence in our day to day beings then the contrary.

To conclude this debate, both realists and liberals have made good points in regards to whether or not international law is really law, however, I believe that this debate will not come to an abrupt halt after this essay is published; as quite frankly there are too many variations when it comes to how law is defined, and the question of international law being real law or not is simply definitive of what the reader’s personal views are and their outlook on law and its definition.

In terms of my own personal views; I do believe that international law is a real law, and just because some countries don’t abide and breech these laws, this doesn’t necessarily make it any lesser of a coerce then domestic laws are, as even those are broken daily by citizens.

When these international laws are repetitively broken by states it is more of an economic ‘put off’ then anything else, for other states to be involved in terms of investing and thus leaving them (the offender) in an economic predicament. So just because there are no ‘international police officers’ per say, doesn’t mean that international law can’t be effective and coercive, as it can and it has the capabilities and just as much backing as domestic laws do.

Bibliography

1. John Austin (1885) “Lectures on Jurisprudence: or the Philosophy of Positive Law”
2. ·Professor Hart (1963) “The Concept of Law” – Duke University School of Law
3. “St Thomas Aquinas called (2006) “Summa Theologica: Part I-II”
4. Thomas Hobbes (2002) – Moral and Political Philosophy

Why has international law found it difficult to find a resolution to the Syrian conflict?

In 2018, Russian and Iran supported Syrian government to recapture areas in eastern Ghouta in Damascus countryside and Daraa governorate. Syrian government used different methods to make anti-groups in these areas to surrender. In Syrian conflict for a particular time chemical attacks were taken place, the organization for the prohibition of chemical weapons (OPCW) was authorized to attribute responsibility for those attacks.

ISIS and AL Qaeda kills the civilians of Syria and even abuse and kidnaps them. As of march 2018, the Syrian observatory for human rights (SOHR) a monitoring group in UK estimated the death toll since the start of the war be as high as 5,111,000. At the end of the year a new UN special envoy was appointed. As active conflict partially decreases, Russia and Syria called for refugees to return and Syria passed law to facilitate reconstruction. Despite this, government forces continued to violate human rights and international humanitarian law, arbitrarily detaining and mistreating people, and imposing onerous restrictions on freedom of movement. UK and Netherlands stopped their support for stabilization and resilience in northwest Syria and US froze its funding for recovery and stabilization in areas captured from ISIS, asking UAE and Saudi Arabia to step into support local authorities.

Syria is a Muslim country which was supposed to be protected by all gulf countries but if any countries tries to support Syria ISIS will not let that country go free. ISIS power is beyond the law nowadays. ISIS people are surrounded worldwide. We can’t even trust the people who is close with us because we doubt them, we have to be careful if we want to survive in this world. Now law start to take its attempt to surrender ISIS by arresting people who have visited their site and who commented or supported for them. Still ISIS is growing day by day and no one could stop them unless all government all together join a force and cooperate with each other and destroy ISIS people. We all know ISIS is destroying world, they brainwash normal people and ask them to join their force.

In Syria, ISIS has killed many innocent people and captured them. Syrian people have suffered a lot because of these groups. ISIS kept Syria under their control, even Syrian government couldn’t save people life. But if all country together have to make a special strategy and have to make ISIS surrender them self. Seven years of war made Syrian tiered, half a million died, more that 5 million refugees. Has anyone ever though from were these ISIS get their weapons, I wonder how, and from who. If they never had weapons how will they fight, they have their own strategies too.

Is the US above the law?

If the US has a agreement with the other nation, US has to follow that treaty but at the same time turning over an individual accused of a crime that would be a crime in the US. At some case US refuse to turn someone over for trial for political reasons. The US is notorious around the world for only abiding by international agreements when it finds them convenient. For example, when the United States invaded Iraq despite a vote against such action by the United Nations Security Council. That vote should have precluded military action by the United States, but the US proceeding anyway, later seeking the support of several other nations to legitimize the move. Other examples have included conducting military actions on the sovereign soil of foreign nations during peacetime, engaging in espionage, and disregarding agreements regarding the environment.

International law is really just a conglomeration of treaties, precedents derived from international dealings, and contracts. There is no international body that truly enforces international agreements, except to the extent that the United Nations may authorize member states to use coercive or even military sanctions. Even then, some nations, such as those on the Security Council have broad de facto immunity. Many international laws only apply to these countries to the extent that they agree to be bound by them.

Some countries doesn’t agree with these international laws at such cases. At some situations foreign laws can take into action in American courts. Most commonly, these cases deal with contractual disputes where parties agree to be bound by the laws of a foreign nation, but where the transaction occurs on American soil. In some cases, it can also happen when foreign governments engage in business in America with American citizens.

Parties in those kinds of cases must ask the court whether they can apply those foreign law in the American court. If the foreign law doesn’t affect US domestic law violation only then foreign law can be applied in the court. A contractual agreement based on sharia law may be entirely valid but agreement based on human trafficking would not be valid. These cases will become complicated and goes for appeals. Thus, it is critical to contact an attorney if dealing with this type of dispute. An attorney will be able to help the party to understand the legal and political aspects based on the case and will prepare the best to reply the opposite, whether on appeal or issues with enforcement.

Why are countries like China and Russia allowed to breach laws and not be punished while Iraq and Afghanistan get punished?

The Treaty of Nerchinsk of 1689 was the first treaty between Russia and China. Sino-Russian and China secret treaty of friendship is of a twenty years strategic treaty that was signed by Zemin and Vladimir Putin on 16th July 2001.

China and Russia has their own way for everything, they don’t depend on any other country. They have their own rules and regulations. No country can stand against China Nuclear power which can destroy whole world. Compared to US and other countries China is not that developed country but no other country could stand against China, not even USA. India is heart of its military power still China could destroy any country in minutes if they wished to.

US is scared of China and Russia because of this. So, years before US president Obama put a treaty in front of Russia “new Start” treaty in which Russia will help US to make nuclear weapons. On 2011 this treaty was signed and now its going to expire on 5th February 2021. Will they renew the treaty?

China has the world largest navy. Even US can’t be compared with it. China’s maritime power has been multiplied by shore-based, anti-ship missile systems. The PLA Rocket force has developed on the mainland a new generation of medium range, anti-ship missiles, the DF21-D (with a nine hundred-mile range) and the DF26-D (a thousand-six-hundred-mile range). They are believed to be potentially capable of hitting naval targets, including Nimitz class carrier battle groups, up to two-thousand-five-hundred miles from China’s coast. Now China’s development is a lot powerful, they have a wonderful metro tunnel and metro stations. No one can touch China and Russia that easily, if anyone does, be ready to die that’s all what I can say from what I have heard.

War in Afghanistan is now 16 years old and with Iraq its 14 years old. Iraq had the best health care system, not after the war. On 2013 half of the doctors fled away. Afghanistan and Iraq is in a bad condition after the war, they have nothing to offer to other countries, they are not powerful like China and Russia.

To what extent are all countries equal in the eyes of the law.

It is a principle which states all individuals must be treated by the law equally and that is with the same law of justice. Law give an guarantee that all individuals or group of people should be treated equally in front of law, there should not be any discrimination. Everyone have there right for the justice. Everyone must be treated equally under the law regardless of race, gender, national origin, color, ethnicity, religion, disability or other characteristics, without privilege, discrimination or bias.

All countries have this principle of law but still in some cases or in some countries its being violated. Gender equality is nowadays so popular. It is said that women and men should have equal right in every place but still its not happening, specially in work place etc. only 6 countries in the world gives equal right for men and women survey says.

In some countries women have special rights than men. She is supported by the law for example India, UAE etc. even though in India women are protected by the law, still women rights are being violated, some women are not protected by the law specially if the women is raped. If a women is raped she should shut her mouth up and live like how she used to be and act as if nothing happened. If she want justice she need to go to court, even if she goes to court may be she get the people who raped her to get punished but at the moment the society comes to know she is raped they see her in a different way. Is that a sympathy or criticizing or whatever we can’t understand them, some says “oh poor girl, now how can she look others face, how will she survive in this society, some says she deserve it why does she have to do job at night”. Why is that “if a men do late night duty or shift – he is good, taking care of his family, hardworking, good”, – but at the same time if a women is working at late night society says: “Why does she have to do that, can’t she go home early, does she have no family, is she not married?” Why is that, why should society criticize them. But at some country women and men are well protected, they does late night duty and goes home late at night, no worries other than lots of work duties. Each countries have their own rules and regulations, even based on their culture and tradition too.

Is the use of force ever justified by international law?

The use of force by states is controlled by – customary international law and by treaty law. This principle is now considered to be a part of customary international law, and has the effect of banning the use of arm force except for two situations authorized by the UN Charter.

Law is made when there is disagreement, each country have there own view point, some country agrees and some disagree at that time the law is made, so that it can protect the people, it give justice to people who need it. If a country is not giving justice to people and supporting money power, and doing things against international law, then the international law can take action against that particular country. A law is law, its not just for a country its for all the world. So sometimes international law can be forced upon to some countries. If a new types of case raised in a country and that country have no law to be against that action at that time that country can meet with other all countries at meeting and apply a new law to be against it or protect it. Women have restriction to drink in those Muslim countries because it gave value to its culture and tradition, some law can’t be forced on any country. We have human right system too.

Definition

International law is a set of principles or norms in the shape of treaties and agreements which countries accept as binding with respect to their dealings with other nations. It defines the ways in which nations would interact with other nations, people and organizations.

Introduction

International law is generally categorized into two classes, i.e. Public and Private law. Public international law governs dealings among states including laws of seas, economy, diplomacy, human rights and global conduct etc. It is derived from written laws in the form of agreements, e.g. Vienna Convention and international customs recognized by civilized nations. On the other hand, Private international law deals with disagreements between people and businesses. There are certain institutions, most notable being United Nations with 195 members which recommend measures, however no international organization truly enforces international law.

Early Origin of International Law

Some historians trace earliest origins of international law to ancient world and the middle ages, however more active evolution started in the classical age with remarkable work of Grotius and Hobbes. At the end of Napoleonic wars, formation of the Congress of Vienna was the dawn of this era which laid foundations of the doctrine of international law. In this era, European states started defining the laws of new international order which later became universally recognized in other regions of the world. Many historic events in the 19th century further shaped the discipline including rise of democracy & nationalism, French & Industrial Revolutions in Europe, establishment of international institutions like Red Cross and rise of European theorists emphasizing rules for international law.

Modern History

The significant development after 1st World War was the formation of League of Nations to preserve peace. In spite of some success and laying ground work for a new international system, the institution could not survive due to non-inclusion of US & Soviet Union and various conflicts and aggression which eventually led to 2nd World War. Establishment of United Nations withstanding the realities of power has finally succeeded in the form of a stable international order. Since then, International Law has strengthened and various institutions including International Court of Justice, Interpol, Security Council etc. have been established.

Vienna Convention

International law evolved as treaties or agreements among member states and later accepted by other states. The Vienna Convention on the Law of Treaties, often called the “treaty of treaties” is an international accord which defines elaborate directions and guidelines on defining, amending and interpreting the treaties, e.g. the Vienna Convention on Diplomatic Relations established in 1961 outlines establishment, maintenance or termination of diplomatic dealings between sovereign nations and privileges & immunities of the diplomats. It has been ratified by 116 states and another 15 signatories include US and Pakistan while 65 states including India have not ratified or signed the convention.

Indo-Pak Territorial Disputes: Kashmir Conflict

Since partition of sub-continent in August 1947, India and Pakistan have maintained different territorial disputes most significantly that of Kashmir which has resulted into three wars fought between two countries since then. The roots of Kashmir conflict existed before 1947 and the way partition happened where solution of princely states’ accession was interpreted by India & Pakistan differently. The ruler of Kashmir Maharaja Hari Singh, a Hindu acceded to India in the face of growing unrest in Muslim majority state which resulted in notice of international community. India took the matter to United Nations and the matter has since been one of the longest unresolved disputes. Since then India maintained article 370 in Kashmir till 2019 with some degree of autonomy to the state while Pakistan has consistently insisted on outcome of the conflict as per UN resolutions.

Application of International Law & its Limitations

The case of Kashmir needs to be reviewed in historical perspective and its legality in International Law. As per International law, right of self determination is an important custom which also existed in UN Charter in some form in 1945 but was not effective at that time. Due to ineffectiveness of a newly formed organization at that time in backdrop of Cold War era, it had many limitations due to its limited stature at that time. Another important factor is that provisions of UN Security Council resolutions are not binding on states in terms of enforcement. Moreover, silent rivalries of permanent member states especially China, USA, Russia & Britain regarding their interests in the region also resulted into indecisiveness on Kashmir. History of conflict reveals that both India and Pakistan have not been able to make meaningful endeavors for political or diplomatic solution of the dispute rather domestic legislation prevented the conflict towards solution. Moreover, Shimla agreement has further complicated the circumstances where mediation by another country is only possible if both sides agree.

Role & Importance of International Law in Kashmir Dispute

Although Kashmir conflict has been further clouded due to inaction by various players, however the solution is possible through application of international law in its essence. First and foremost, relevant norm of international law is the right to self-determination to establish will of the people which may be in favor of India, Pakistan, power-sharing formula or an independent status. Role of UN has significantly evolved and it is a more vibrant forum now than half a century before. It can play a dominant role by consistent commitment to resolve the issue and by asserting its influence through Security Council. Other states can also play the role of intermediation though unwilling response of either India or Pakistan in the backdrop of Shimla agreement can derail the process. Hence, it may continue to hinder any diplomatic progress unless superseded by another agreement. Recent response of India to President Donald Trump’s mediation offer can be seen in this regard.

Conclusion

International law has the potential to provide a framework of negotiation and interaction between states to resolve the disputes mutually as per their agreements or through relevant international organizations. However, the non-binding nature of the enforcement of international law hinders progress as in case of Kashmir dispute. Despite these challenges, only workable solution appears to be inter-state cooperation and bilateral agreement to negotiate a solution keeping in view the principle of self-determination.

Introduction

While a law is a set of rules that govern the behavior of people in a certain country or geographic boundary, International law is the law that governs the behaviors of states and other international persons.

Because international law is applied at the international level, this analytical article will be different from the other law papers, it will not contain constitutional laws or other national laws as it applies. This article focuses only on the nature of international law, what it has been doing well, and the areas that it hasn’t been doing well including the areas that it hasn’t been acting on or paying attention to and it should. For all those things as written in Vaughan Lowe’s book entitled “international law a very short introduction,” I will then present an analysis and prediction of what the future of international law is and if indeed it does have a future.

Vaughan in his book presents us with an amazing introduction to international and its nature. I will be analyzing only chapters 6 and 7 where he provides an analysis of International Law explaining what it does badly, and the areas that it does well.

A summation of what international law does well and what it does badly based on Vaughan’s book in chapters 6 and 7, Vaughan starts chapter six explaining that the simple existence of international law that removed international anarchy is already a victory, so, although we state the goods and bad deeds of it, it is not in the intent of overshadowing g it’s significance. To summarize chapters six and seven, here is an outline of the strengths and weaknesses of international law.

Strengths:

1. The removal of anarchy in the international realm: Before international law, there were no laws governing all state’s behaviors besides the customs that also varied. Thomas Hobbes in the book Leviathan explains how a lawful state is better than a state without law or the state of nature that he describes as a brutal and short life.
2. Its existence of International law is the key to cooperation between states.
3. International law has been praised for its success in the realm of statistics logistics and especially in health investigation.
4. International law has been very successful in bringing to our attention issues that were primarily ignored but are very important. A good example of this is the issue of climate change. In this area, the Scandinavian states are a good example.
5. There are issues that can only be effectively solved on the international level and international law is the forum to address them. Some examples of these issues are mass migration drug trafficking human trafficking and others.
6. International law has found a way for states to obey international norms even though there are many reasons why states obey.
7. International law brings justice even to the most powerful people, showing that no one is untouchable. A good example of this is the Charles Taylor case and the ICC.
8. Brought equality amongst states and people: international law brought equality amongst states giving them all a voice in international decisions but also, it brought equality amongst all the citizens of the world. Only the consecutive human rights already made us all equal and established a basic living standard for all regardless of their sex, religion, country, race, and other differences.

The weaknesses of international law:

1. Enforceability: One primary weakness of international law is the lack of a specific body to enforce international laws, the lack of an international military force is one of the biggest failures of international law. Without enforcement it is almost impossible to have success, I personally believe this is the biggest failure of international law.
2. Application of that enforceability is sometimes blocked for political reasons: because international law is applied first at the international level and states are the key agents, they can be biased in their decisions and enforce only laws that benefit them and try to stop laws that may not be so beneficial for their state interests.
3. The use of humanitarian intervention to reach state goals/interests.
4. States can opt to not sign treaties and they are not bound by them. This idea makes it hard to regulate international behaviors since not all states abound by the same treaties, it sounds a bit like a buffet where countries can choose what to eat. There are certain exceptions of course.
5. Structural Inequality amongst States in International Organizations: international organizations are the key lawmakers in international law, and most of these key governmental organizations have an unequal structure in terms of the weight of the state’s decisions. A good example is the UN and the security council and the WTO, which have a similar structure. These are the key failures I could extract from Chapter 7.

The future of international law:

First of all, it is important to highlight that international law does have a future, and with a lot of effort and cooperation above all, it can have a bright one.

Unfortunately, while most of the problems with international law and the international system as a whole have to do with its nature, it is thus almost impossible to change and it isn’t correct to compare it with national law since they have different objectives. However, there is a very large room for improvement, especially in the area of enforcement. International law would be way more effective if we had specific laws and sanctions or punishments gif states who break them and a clear procedure for their application and implications, that would change a lot.

International law has for example achieved in preventing another world war and that alone makes it worth its existence.

The importance of law can never be expressed enough, the truth is that even though it is not so effective, it is better than no law, and international law has managed to fill that void of lack as well described by Hobbes and in this case, it is applicable even at the international level.

Each year that goes by, we see more and more improvements, more states are part of the UN now and more states are signing treaties and fighting for its enforcement, more radical customs are being eliminated due to the country’s exposure to the international world. Just based on this increased cooperation, we can conclude that the future is bright and better.

References:

1. Vaughan Lowe – international law pages 114 – 140
2. Thomas Hobbes – Leviathan
3. Slaughter, Anne-Marie, and William Burke-White. “The future of international law is domestic (or, the European way of law).” Harv. Int’l LJ 47 (2006): 327.
4. Chimni, Bhupinder S. “The past, present, and future of international law: a critical third world approach.” Melb. J. Int’l L. 8 (2007): 499.
5. Goldmann, Matthias. “We need to cut off the head of the king: Past, present, and future approaches to international soft law.” LJIL
6. Oppenheim, Lassa. The Future of International Law. Good Press, 20194.

ABSTRACT

This paper focuses on the major problem of refugees and analyses the Principle of Non-refoulement in this regard. The paper focuses on the nature, scope and history of this principle. It also indulges into whether non-refoulement can be treated as a jus cogens norm by going through the criteria that have been laid down by the International Law Commission’s Report on Jus Cogens. The paper also deals with whether the principle casts a strenuous obligation upon states by looking at in the context of the European Union- Turkey Agreement of 2016. The also focuses on India’s approach towards this principle and sees what implications India’s stance has on the Rohingya Muslims, who have fled from Myanmar.

INTRODUCTION

The world is facing several challenges today. From natural challenges to man-made challenges, world leaders have a lot of work to do. Out of these challenges, another challenge that is standing tall is the refugee crisis. War, turmoil, instability and persecution has led to many people fleeing from their countries to other countries, in order to live peaceful lives. This situation is not only problematic for those who are fleeing their nations (refugees), but is also problematic for the countries to which such people flee to. What makes it very different for refugees is that they have a well-founded fear of returning back to their nations .

One point that must be taken into consideration is that refugees are different from internally displaced persons (IDP). Refugees flee to other countries, i.e., they cross international borders. However, internally displaced people, even though they flee their homes, do not cross international borders. Therefore, internally displaced people will still be under the purview of their nation’s municipal law, while international law plays a major role in the case of refugees.

The UNHCR states that a staggering 79.5 million people were displaced at the end of 2019, with about 26 million of them being refugees . What is even more depressing is that out the total number of people displaced, about 40% of them are children. Another fact that emerges is that 85% of the refugees are in developing countries, which puts even more burden on the governments of these nations.

Turkey is the country which houses the most number of refugees. The number is approximately 3.6 million refugees in Turkey alone . Other countries that house the most number of refugees are Jordan (2.9 million), Colombia (1.7 million), Lebanon (1.4 million), Pakistan (1.4 million) and Germany (1.1 million) .

RIGHTS OF REFUGEES

Refugees are entitled to several rights that have been granted to them through different legal documents. The Universal Declaration of Human Rights (hereinafter referred to as “the UDHR”), the foremost declaration pertaining to human rights, applies to all individuals. Therefore, all the rights granted by the UDHR will apply to refugees. Similarly, the Convention Relating to the Status of Refugees, 1951(hereinafter referred to as the Refugee Convention), A.K.A as the Geneva Convention, plays a major role in bestowing rights upon refugees. The Refugee Convention, which is the most important convention pertaining to refugees, grants several rights in the context of refugeehood. The Refugee Convention is the second convention of its kind, with the first convention being the 1933 convention relating to the International Status of Refugees (hereinafter referred to as the 1933 Convention). A protocol was entered into in 1967, which complements the 1951 Convention. Even the European Convention on Human Rights is applicable to individuals residing in Europe. However, the scope of this paper extends only to one specific right, the Right of Non-refoulement, which is also a principle under international law.

THE PRINCIPLE OF NON-REFOULEMENT

The right of Non-refoulement is a right that grants a person protection from being sent back to a state where they will face torture, cruel or inhumane treatment, punishment or irreparable harm . It simply refers to not sending a person back to the state where they flee from, or sending them to another place where they will face the same trauma again. For example, if an individual flees a country due to religious persecution from a country, the state to which he is requesting for refuge, should not send him back to that state. Hence, this rights gives a corresponding duty to states to not refuse to give protection. This principle extends to those who are asylum-seekers as well, but the paper restricts its scope only to refugee law.

The principle has been believed to be a part of customary international law . It was first emanated in the 1933 Convention under Article 3(2). The convention was entered into by the members of the League of Nations on 28th October, 1933 . The article prevented states from refusing to give refuge to those who sought it at the frontiers of their states . Based on this, the Principle has been enshrined under Article 33 of the Refugee Convention:-

Article 33. Prohibition of Expulsion or Return (‘refoulement):-

• No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
• The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

The article also prescribes an exception to this principle. The exception for those individuals who create an apprehension of danger to the security of the country where they are residing. During the drafting stage, it was agreed upon by all the members that giving a person back to where he came from would be, “be tantamount to delivering him into the hands of his persecutors” . The principle does not only apply to recognised refugees, but also to those who have not had their status of formally declared . Under the Refugee Convention, the prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or “renditions”, and non-admission at the border . From this, one can clearly infer the difference between the scope of the principle under the 1933 Convention and the Refugee Convention. In the 1933 convention, it extended only to non-admission at borders, but in the Refugee Convention, it extended to refugees who have also been given refuge and are residing within the territory of the state.

The principle has also been enshrined under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and under Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance.

CAN THE PRINCIPLE OF NON-REFOULEMENT BE SEEN AS A JUS COGENS NORM?

As aforementioned, Non-refoulement has been touted to be a part of customary international law. However, whether it classifies as a peremptory norm is something that is very ambiguous at this point of time. Before going into whether non-refoulement can qualify as jus cogens, it is important to understand what jus cogens is. Jus cogens refers to the principles of international law that are considered to be so fundamental that they cannot be set aside . A jus cogens norm has been defined as ,” a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Though there is no list which clearly stipulates what is a jus cogens norm and what is not, it is accepted that prohibition of slavery, genocide, etc. are jus cogens norms.

The International Law Commission Report on Jus Cogens (published in 2015) has laid down the following criteria that must be satisfied in order to be called a jus cogens norm:-

1. The norm must be a norm of general international law and must be accepted by the international community as such ;
2. The norm could have arisen as a result of customary international law or as a general principle of law ;
3. In order to be accepted as a jus cogens norm, there must be clear evidence that no derogation is permitted ; and
4. The norm must be accepted as a jus cogens norm by a very large majority of states .

Evidence in the 4th criteria refers to public statements on behalf of states, official publications, government legal opinions, diplomatic correspondence, legislative and administrative acts of states, decisions of municipal and international courts and works by expert bodies of states or international organisations .

The principle of non-refoulement satisfies the first two criteria quite easily. It is a general rule of international law and it is a part of customary international law. Secondly, there is evidence to suggest that the principle of non-refoulement is a jus cogens norm. For example, the report of the international Law Commission itself acknowledges that non-refoulement has been seen as a jus cogens norm by many states. It also refers to the case of Prosecutor Vs. Germain Katanga , a case in which the International Criminal Court noted that “peremptoriness [of the principle of non-refoulement] finds increasing recognition among States” .

As for the last criteria, it is very difficult to establish whether a large majority of nation states have accepted the principle of non-refoulement as a jus cogens norm. Several members of the European Union have accepted refugees in large numbers, but there is no clarity over whether they recognize non-refoulement as a principle of paramount importance.

Hence, one can conclude that non-refoulement satisfies the first three criteria, but there is no clarity over whether it satisfies the fourth criteria, especially in continents like Asia. Therefore, one can conclude that non-refoulement has not yet reached the stage that is required to be treated as a jus cogens norm.

IS THE PRINCIPLE BURDENSOME?

Albeit the principle is in place to safeguard the rights of refugees, it can be argued that it casts a very strenuous obligation, which states must adhere. As aforementioned, many states that are housing refugees are developing countries. Developed countries like the United States of America took a deplorable move in which it capped the number of refugees that it was willing to allow to 50,000 refugees a year . This transfers the burden of taking care of refuges to other states. Having this in mind, the European Union entered into an agreement with Turkey, famously known as the European Union- Turkey Refugee Agreement, in which Turkey agreed to take all refugees who entered into Europe through Turkey (with Greece being the most affected country in this regard) . In return, Turkey received 6 Billion $ from the European Union . The members of the EU also agreed to take one Syrian refugee for each Syrian refugee who was returned back to Turkey . This agreement was entered into in the light of the mass refugee flow into the European Union. This agreement would not have been entered into had all the nations been more than capable and ready to accept refugees. The members of the European Union had to do this in order to reduce the burden of refugees.

The question that arises right now is whether this agreement strikes at the core of the Principle of Non-refoulement. In order to answer this question, one has to examine the treatment of refugees in Turkey, as the principle states that a refugee should not be returned a territory where their “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. However, that goes beyond the scope of this paper.

INDIA AND ITS SITUATION WITH THE ROHINGYAS- IS THE PRINCIPLE BEING VIOLATED?

India’s problems with the Rohingyas has been raging on for a long period of time. Rohingyas are a highly persecuted Muslim minority group in the state of Myanmar. The Rohingyas have been facing systematic persecution in the state of Myanmar for a very long time . Owing to this, rather inevitably, many people started fleeing to Indian and Bangladesh. As of September 2017, the number of Rohingya refugees touched 40,000 . In the light of this, the Indian government decided to deport some of them . In August 2018, the government deported 7 Rohingyas and a family of 5 Rohingyas in 2019 . The Indian government has supported this stance by saying that since India is not a party to the Refugee Convention, the principle would not apply to it . However, since the principle is a part of customary international law, it can be seen as a binding principle.

After the enactment of the Citizenship Amendment Act, 2019 (hereinafter referred to as “the CAA”), India made it equally clear that it would start taking action to deport Rohingyas as they do not fall within the purview of the CAA . This has resulted in severe criticism from different corridors. However, those who are criticising this move must also take into consideration the security of the nature. Had the Indian government been blinded by hatred towards Muslims, then it would have deported large numbers of Rohingyas long ago, not 12 Rohingyas in total. Therefore, when people approach this topic, they must do so with greater care and must also see the security of the nation.

CONCLUSION

The Principle of Non-refoulement is very important. It gives refugees the chance to live life with dignity by preventing states from sending them back to territories where they might have to go through more abuses all over again. This principle is the cornerstone of refugee law, and it has been treated as being sacrosanct. However, the international community must also see whether the principle is being burdensome. Even though the principle does permit states to transfer refugees to those states that do not persecute refugees, it does add a lot of trouble. India’s position with the principle is pretty delicate and whether its actions towards the Rohingyas is right or wrong is certainly something that will come out in the daylight. However, for now, it is undeniable that the Principle of Non-refoulement epitomises the qualities of compassion, humaneness and upholding dignity.

Transnational policing is most frequently quoted as a solution to organized crime. Organized crime is a global phenomenon beyond the scope of any one agency or jurisdiction to deal with alone. So cooperation, international law enforcement, mutual legal assistance and transnational criminal investigation and knowledge or information helps to control the risk of such crime across the world. The capacity to communicate around the world has radically increased through personal computers and mobile telephone and opens up new possibilities for horizontal communication and collaboration among police officers in the field. Organized crime as its name indicate, illegal activity which is done by the coordination of more than one country criminals and therefore, to tackle it successfully, police need to seek cooperation partners across borders to share intelligence, coordinate operations, secure evidence, and track down suspects. In general the main cause of the development of transnational policing is due to the increased problem of transnational organized crime and terrorism across countries from time to time.

The Purpose of the Review

The main purpose of this article review is to examine the influence of transnational policing on organized crime and its development in international context.

The General Overview of the Articles and Its Critics

When the world is becoming economically, politically, socially and technologically connected and, then organized crime becomes beyond the competence of the traditional criminal justice investigative agencies such as police forces and customs agencies and the national government also unable to control it by itself (Ben Bowling, 2009). And it follows, therefore, that collaborative and coordinated effort is required to translate different and differing national capacities and capabilities into an effective multilateral mechanism against organized crime and establish policing in its international context is an obligatory (Clive Harfield, 2008).

In the world police officers share a distinctive attitude and their job is well established. In any one police organization there is no single police culture; they share a set of assumptions, values, modes of thinking, and acting. Perceptions of occupational commonality are nowadays reinforced by the widely shared conviction that police forces must cooperate if they are to respond effectively to the crime and insecurity facilitated by globalization and form intergovernmental organizations such as European Union and Interpol with shared professional standards to tackle organized crime across countries (Alice Hills, 2009).

Transnational policing in the past decade was neither well organized nor systematized and policing on organized crime is an ambitious. The co-operative development has been connected to the post 9/11 responses in the so-called war on terror that have reinforced the context of collaboration amongst certain partner nations. It is characterized by defensive in its widest sense. However, todays transnational policing is highly planned, coordinated, systematized and transnational networks have become more extensive, intensive and faster flowing, global forces are having a greater local impact (Clive Harfield, 2008).

In general, the current transnational policing develops itself through different mechanisms such as in the light of UN peacekeeping, by developing National Intelligence Model which helps to apply intelligence led policing to collect and evaluate information and problem oriented policing to analysis, identify the problem and effective use of resources, and by connecting the local, the national and international police based on the concept of threat and harm, rather than geography (Hills, Harfield, Bowling and Gilmour).

Even if today’s transnational policing is highly organized, coordinated, technologically advanced and shift its nature from time to time; in my critical point of view for I see no such convinced evidence of such cooperation’s of transnational policing practically reduce the risk of organized crime because its inhuman consequences increases from time to time and it is also a conspiracy of the states and a business for many states, its influence goes forever unless they stop their political conspiracy as well as egoist interests. Indeed my assessment relies on subjective evidence, rather than a systematic evidential basis, but so, too, do the claims made on behalf of transnational policing.

In addition in my stand, using policing models especially zero tolerance policing model can play a great role in controlling organized crime in combination with other models.

The methodologies which were used by authors when they prepared the articles is Qualitative method that are: Descriptive, explanatory and normative design to understand transnational policing practices and sketch out an agenda, Descriptive design to describe the developments of transnational policing in different decades, Case study to discuss the problems associated with a crime management model and Explanatory design to offer an explanation of transnational policing limitations based on the primacy of sub state practice over international standards (Hills, Harfield, Bowling and Gilmour).

The methodologies they used were correct, but in my stand for the purpose of deep understanding, to discover and describe the culture of organized criminal groups and assist us greater insight into organized crime, it is better to use ethnographic research design study.

In general the articles assessed the development of transnational policing in the past decades and todays, the way it develops, the information it uses and it’s changing due to increasing global criminal activity.

My argument is that even if indeed, there is a great change in different ways, its effectiveness is on question mark, because organized crime becomes beyond its capacity and still debatable.

These articles review policing in international context by showing the experiences of different countries across the world in combination and or the experiences of the nations, taken as an example to apply in other countries. In general, the articles analyzed policing at international, national and local context then coordinate each other to tackle organized crime.

The major questions rose by the authors: What are reasonable conditions in the coordination of organized crime policing? What are prerequisites of policing of organized crime in international context? What are problems associated to crime management model and the merits of different models of policing that work to counter transnational organized crime? To what extent the coordination of transnational policing can be effective and efficient at all nations? How to link local policing activity with the effort to tackle national and transnational criminality? And the perspectives used by authors include social constructive perspective, community perspective, human right perspective, and national and international perspectives (Hills, Harfield, Bowling and Gilmour).

In my understanding the articles undergo with some weaknesses: explanations of transnational policing mostly focused on the experience of power full states, the articles mostly explored reactive measures to control organized crime, and the articles are not clearly show the effectiveness of the coordination of policing of organized crime and the coordination mostly focused on police organization, it should be consider other sectors.

Conclusion

The world becomes full of challenges, policing needs to solve such challenges through cooperation and coordination with different concerned bodies’ especially international crimes should need an integrated system of transnational policing. In the past decades transnational policing was not as much coordinated to tackle organized crime but the modern transnational policing are highly organized, coordinated and systematized but its effectiveness is not such satisfactory. Generally, the articles were extensively focused on the coordination and cooperation of transnational policing in different ways in order to block organized crime across different countries. While in addition to this; the future researchers will first identify the root causes and pushing factors that leads to commit organized crime and try to devise strategies to prevent it before the commission unless the world might become under the control of it. Generally, transnational policing is a basic instrument to tackle organized crime.

Recommendation

It is recommended that Organized Crime is a risk for every one or every nation forever, so adopting common criminal code should be homework for the world or each nation and researchers should show this gap every time which is obstacle to apply transnational policing in coordination to reduce the risk of such serious crime. It is recommended that future research will be focused on creating trust between the states that the issues is not a political rather security. The transnational policing should be held as a policy in every nation to address issues rose by organized crime and employed highly intellectual individuals will be preserved.

References

1. Alice Hills, (2009). The Possibility of Transnational Policing, Policing and Society: An International Journal of Research and Policy, 19:3, 300-317, DOI:10.1080/10439460902871363
2. Ben Bowling, (2009). Transnational Policing: The Globalization Thesis, a Typology and a Research Agenda London CSF Associates: Publius, Inc.
3. Clive Harfield, (2008). The Organization of Organized Crime Policing and Its International Context Australia SAGE Publications.
4. Stan Gilmour & Robert France, (2011). Local policing and transnational organized crime, International Review of Law, Computers & Technology, 25:1-2, 17-26, DOI:10.1080/13600869.2011.594644