Can Public International Law Effectively Moderate Contemporary Warfare - Essay Example

? Can public international law effectively moderate contemporary warfare? Introduction International law, as a body of guidelines regulating the associations between nations, is based on numerous principles that countries should uphold in order to keep peace and guarantee the quality of their associations (Armstrong et al, 2007). Principles of International law are the doctrines contained in the “Declaration on principles of International, friendly relations and co-0peration among states in accordance with the charter of the United Nations” of 1970 (Brownlie, 1999). The principles that regulate International law include the duty to resolve disagreements peacefully, prevention of the risk or use of force, duty to collaborate, duty of non-intervention and the standard of good faith. International law is made by international treaties, which generates directives binding upon the parties, and accustomed laws, which are essentially state practices accepted by the community at large as establishing patterns of demeanor that have to be followed. Countries that are signatories to the international law do observe it, and infringements are relatively low (Basak, 2010). Nonetheless, such infringements such as racial oppression and armed attacks are exposed and attack the heart of the system, which is the generation and protection of international peace and justice. Just similar to normal assaults on national legal systems such as rapes, incidences of murder and robbery, corresponding attacks on international law show the weaknesses of the system devoid of their disparagement. In spite of the infrequent gross violation, the vast common requirements of international law are adhered to. This paper will seek to determine the effectiveness of the principles of international law in moderating the contemporary warfare. In order to determine the effectiveness of international law in moderating contemporary warfare, it is significant to analyze the principles confined in the “Declaration on principles of international law, friendly relations and co-operation among nations in line with then Charter of the United Nations” and their efficacy in governing state practice from an acute viewpoint. Proscription on the threat or use of force Proscription on the use of force is the most significant principle that regulates International law, because of the magnitude of war, deeds of hostility and their consequences on the international system and associations between countries (Brownlie, 1999). This prohibition applies not only to the member states of United Nations but also to every nation. Additionally, this proscription is applicable to not only territories but also to borders and international distinction lines, because of the sensitivity of such lines in the cold war perspective (Armstrong et al, 2007). Most significantly, this principle forbids the indirect use of force. This is particularly significant since failing to include indirect use of force would mean that nations would indirectly do what they were prohibited to do. On one hand, it is clear that many nations respect this proscription. Additionally, this principle has been modified to include “lawful” use of force in numerous instances using the powers of the UN Security Council. For instance, the Security Council Resolution 678 (1990) that permitted alliance forces to apply “all necessary means” including the use of armed force to sojourn Iraq’s illegitimate seizure of Kuwait (Dixon & McCorquodale, 2005). On the other hand, however, this principle has been the most challenged and breached principles of the international law. For example, the use of force for self-defense intentions, which is accepted in the customary international law as a “lawful” application of force, has been wrongly applied by the United States as an effort to validate illegitimate hostility (Basak, 2010). The USSR and US used “self-defense” to justify their use of force during the Cold War. In this regard, although this principle was more frequently than not applied properly, it was considerably breached under the pretense of “self-defense”. On a different note, this presents the question of the legality of the “pre-emptive” application of force, a conception presented by United States when promoting the post 9/11 annexation on Iraq (Dixon & McCorquodale, 2005). Additionally, the application of force for sovereignty, for example, by freedom fighters, presented new question: is the application of force by the Palestinian government in order to attain sovereignty “legitimate”? On the proscription on “threat” of force, this principle has been breached by numerous nations, such as the USSR after the U-2 instance, when United States was threatened by Kruschev. A similar instance can be seen when United Kingdom and France issued a proposition, supported by the threat to use force, to Israel and Egypt (Dixon & McCorquodale, 2005). From these instances, the principle of prohibition on the threat or use of force has been breached in numerous occasions and might not satisfactorily moderate contemporary warfare. This is because the arbiters of the world order are the states themselves (Basak, 2010). Duty to settle disputes peacefully This principle is fairly understandable and can be asserted as the “mirror edge” of the principle of proscription to threat and application of force. Remarkably, the Declaration on Principles of International Law appends a restraint that a nation that accommodating third party arbitration, for instance, by the international court of justice, on a certain disagreement does not imply surrendering its sovereignty and that by this means subliminally dismissing the dispute of irreconcilability between municipal law and international law (Brownlie, 1999). Perceptibly, the breach of the preceding principle on the prohibition on threat or use of force means a breach of the principle of resolving arguments peacefully (Ku & Diehl, 2009). Subsequently, it implies that all nations that entered in illegitimate acts of hostility against other countries breached this same principle. For example, in the case of Eritrea and Ethiopia boundary disputes, the countries failed to resolve their disputes peacefully and breached the principle on peaceful resolution of disputes. Instead of seeking assistance from a neutral international arbitrator such as the ICJ, the countries went to war with each other. However, on the other hand, the existence of International Court of Justice and other sovereign international arbitration bodies has facilitated peaceful resolution of disputes, such as the post-world war II disputes, for example, boundary and territorial disputes (Dixon & McCorquodale, 2005). Therefore, the principle of peaceful resolution has been applied by countries. Duty of non-intervention Just like the principle on prohibition on the threat of use of force, this principle is also one of the most breached and challenged principle. The reason for his breach is that this principle is susceptible to numerous exemptions, particularly from judicial decisions and customary law. Such exemptions would be that interference in a country’s internal undertakings could be legal to permit humanitarian intervention; to guarantee collective self-defense (Basak, 2010). Humanitarian intrusion, in order to stop serious infringements on human rights, can also be a basis for legalizing a violation of the duty of non-intervention. This was the case when the Security Council urged Iraq to let humanitarian relief organizations into the country and to cease its suppression. In this case, the breach appeared genuine and relational to the momentousness of the human rights defilement in Iraq at that time (Dixon & McCorquodale, 2005). Possibly the most renowned ICJ case-law on nations violating their duty of non-intervention is the Nicaragua case, where United States offered technical and financial help to the Contras in order to takeover power from Ortega, the then Sandinista president. Nicaragua brought this case to the International Court of Justice arguing that United States had violated the proscription on the use of force and the duty of non-intervention (International Court of Justice, 2002). The United States claimed that it had done so in order to safeguard El Salvador, a friend of the United States, that the US had asserted had been dupes to guerillas assisted by Nicaragua. As a result, this case straightened out the convolution of the duty to non-intervention as it questioned if the interference in a country’s internal activities as a reprisal against preceding interference in a friend-country’s internal activities could establish “collective self-defense”. Nonetheless, the court determined that evidence of “armed attack” from Nicaragua on El Salvador was lacking and that United States did not have a right to interfere through the use of force in the pretext of self-defense (International Court of Justice, 2002). The Duty to co-operate Cooperation, accompanied by integrity, is one of the principles of the reasons for the existence of United Nations and international law (Brownlie, 1999). Without collaboration, the subsistence of an international community as we understand would be endangered. However, two aspects of the principle as delineated in the Declaration on Principles of International Law necessitate attention (Armstrong et al, 2007). The first aspect is the fact that nations should cooperate, “irrespective of the differences in their political, economic and social systems”. This was significant during the Cold War, particularly because of the strong resentment between the capitalists and the communists. On the other hand, it would seem to be an unenlightened wish that collaboration would not be affected by the variations in systems. For example, in the Amoco International Finance Corp vs. Iran Case, the recent variation in political, social and economic systems, generated by the Islamic Revolution, between United States and Iran dealt a big blow to cooperation and led to a legal action because of Iran’s nationalization of its oil fields (Dixon & McCorquodale, 2005). The second aspect is that nations “shall carry out their international associations in the economic, cultural, social, and technical fields in accordance with the principles of sovereign equality and non-intervention”. However, this principle seems to be blatantly breached by countries that impose trade sanctions and interfere with the internal matters of a country (Basak, 2010). Therefore, one can deduce that, similar to the duty of non-intervention, the duty to cooperate can be violated in the pretext of collective fears such as those afore stated. Principle of Equal rights and Self-Determination of people This principle rationally has to be apprehended within the perspective decolonization (Brownlie, 1999), even though some people may contend that it is still a binding principle applicable to some of the modern world cases of warfare as witnessed in East Timor and Palestine. The most significant aspect in contemporary perspective is the application of the principle of self-determination to people within an existing independent nation. An application of the principle would generate challenges for nations possessing distinct people and for the nation with prospect secessionist groups within the region. As such, the authors interpreted the article in a negative way. This makes the use of self-determination in sovereign nations an outcome to the people’s autonomy in these nations, regardless of their ethnic and cultural backgrounds (Armstrong et al, 2007). This presents momentous questions on the renunciation of pertinence of the self-determination standard to Palestinians and Tamils, as some people may contend that they are not satisfactorily represented and cannot practice and enjoy their sovereignty. Additionally, obvious breaches of the principle of self-determination have been done even after the expiration of decolonization, for example, the Indonesia’s seizure of East Timor from 1975 to 2002. Portugal presented this breach of the standard of self-determination before the ICJ, and it was held that it had no authority since Indonesia was not a member to the case and that its rights and responsibilities were the contents of the decision. In this regard, the standard of self-determination and equal rights of people is a particularly subtle principle, since it might be used in secessionist groups in sovereign nations or other groups in argufied territories (Ku & Diehl, 2009). The solitary measures left by the Declaration are if or not such groups contribute to the state and are sufficiently represented, which is overtly not the case in argufied regions where unitary government is absent. Principle of Good Faith This principle functions together with the duty to collaborate and is an establishing principle of international associations between countries (Brownlie, 1999). It engrosses the obligation to satisfy in good faith the responsibilities arising from the legal tools of international law, not only agreements and treaties but also “generally accepted standards and regulations of international law. However, this principle is not often adhered to by nations (Basak, 2010). Countries violate their responsibilities to adhere to “authoritative” principles of international law such as the duty to non-interference. The challenge here is that in some instances it happens that the principles of international law are conjointly high-class. This implies that, when a country validates its interference on the grounds of self-determination, it may be challenging to strike equilibrium between the principles. Conclusion The principles of International law constitute the sincere termination of regular codification of regulations essential to sustain friendly associations between countries. Needless to say, the fact that these principles are mutually exclusive makes the susceptible to alteration and twisting by the countries, which can entreat them to shield otherwise unlawful contemporary practices. However, on the other hand, the existence of International Court of Justice and other sovereign international arbitration bodies has facilitated adherence to some of the principles of international law such as prohibition on threat and use of force and the duty to settle disputes peacefully. Therefore, the international law is effective to some extend and ineffective to some degree in moderating contemporary warfare. References Armstrong, D., T. Farrell and H. Lambert. 2007. International Law and International Relations, Cambridge University Press, Cambridge. Basak, C. (ed.) 2010. International Law for International Relations, Oxford University Press, Oxford. Brownlie, I. 1999. Principles of Public International Law, 5th ed., Oxford University Press, Oxford. Dixon, M. and R. McCorquodale. 2005. Cases and Materials on International Law, 4th edn, Oxford UP, Oxford. International Court of Justice. 2002, September 10. Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras) | International Court of Justice. Retrieved November 2013, from http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=esh&case=127&k=2e&p3=0 Ku, C. and P. Diehl. 2009. International Law: Classic and Contemporary Readings, Lynne Rienner, Boulder. Read More