Public International Law in the Context of Politics and Morals - Case Study Example

Public International Law: “It no longer makes sense to talk of International law prohibiting the use of Armed Force by s as the law contains toomany exceptions and excuses.” Introduction: The necessity of providing a strong focus on international law has been realized since different nations started coming to a close proximity irrespective of national and socio-cultural boundaries. With the progress of time, human activism within the domain of global boundary gradually became complicated and consequently, conflicts between states became inevitable. Such conflicts also initiated several others other issues, namely, abundant abuse of human rights, deprivation of states and their inhabitants from enjoying their rightful claims and most importantly, a continuous socio-political disturbance that affected the desired peaceful situation within the arena of international politics. The scope of international law, compared to the earlier times, has increased to a considerable extent mainly due to the reason so that it can ensure a balanced existence by finding a way of avoiding such factors, leading to socio-political instabilities. One of the greatest challenges that international law is encountering in the recent times is guaranteeing proper protection of human rights and secure the basic human need of enjoying a peaceful social existence so that every individual can enjoy and exercise their basic rights as enshrined by respective constitutions as well as society. Imperialist aggression was one of the most important factors that restrained the common people from attaining the state of a stable existence in the earlier times. However, inception of the 20th century intellectual movement introduced a dynamic change in the arena of perceiving and respecting human rights but consequently, imperialism also changed its previous form and took the new shape of economic imperialism. The economic superpowers of the world, by this method, did not casted direct dominance over their weaker counterparts; rather they became more focused on controlling the entire economy of their subjects. Through this method the superior countries wished to enhance their supremacy in international politics. A new and unobserved struggle for power commenced to attain the position of undisputed political and financial superiority in the international context. Out of this situation a state of socio-political inequality reemerged that finally led the entire humanity to experience the devastating results of two consecutive Great Wars. In 1945, when finally the state of anarchy was over, both intellectuals and common people realized the importance of casting more serious focus on expanding the international law’s power of governance. Several legal institutions and juristic tribunals were formed so that peace can be maintained - human rights can be secured, but, unfortunately, the undercurrent of the struggle for power so strong that out of it emerged the Cold War. Aftermath, it was succeeded by series of incidents in different parts of the world, leading to pervasive exploitation of human rights and threat to world peace. The international law laid down numerous provisions to apply armed forces in case there would be definite proof in favor of exploitation of human rights but such provisions also included different exceptions and excuses. One of the main reasons for including so many restrictions has been that jurists of such legal structure, perhaps, were not very sure about the consequences if the superior nations would have been provided with the permission of using armed forces. The history of human civilization, even of the quite recent times, clearly provides evidence in support of the observation that use of armed forces is permitted the ongoing situation of anarchy might end but at the same time there is always a risk that democratic structure of the state would be exploited by foreign forces. Thus, keeping in mind the situation of extreme socio-political jeopardy and lack of effectiveness of the international law, several sociological, political and legal scholars have started pointing out that the current legal structure is incapable of handing international turmoil and the situation will not change unless a complete restructuring of provisions regarding use of armed forces can be done, keeping a close proximity with dynamically changing socio-political condition in the international context. Private and Public International Law: According to the functioning of the international law, it can be divided into two sections, namely: private and public international law. Public international law takes care of such issues that are generated from a specific legal system but needs consideration of foreign laws, mostly in case of contractual obligations among individuals having separate national citizenships1 (Shaw 1-2). The scope of public international law, which is generally known as international law, is much vast as it encompasses within its scope different layers of state affairs and the elements of disputes that need to be addressed, “Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of many international institutions. It may be international or general, in which case the stipulated rules bind all the states … or regional, whereby a group of states linked geographically or ideologically may recognise special rules applying only to them …”2. Such observation makes it clear at once that public international law functions on the foundation of basic human morality and any such issue that possibly generate violation of such moral base, international law, with its legal empowerment attempts to solve that factor under question. In the current situation of global politics, challenges for international law to protect the aspect of common morality are increasingly becoming complicated. The philosophical foundation of globalization may seem to be extremely noble as it professes distribution of equal socio-cultural, political and financial benefits to all nations and their inhabitants. It also suggests that under the situation of mutual cohabitation every individual will have the liberty to express their opinion regarding a proper system of governance and the issue of democratic equality can only be ensured under this system. However, in reality what comes out, is quite far removed from such philosophical observation and the process of globalization has actually become an effective instruments for economic superpowers to dominate over other nations. It is more unfortunate to see that in order to strengthen their grips of dominance over weaker nations the stronger ones are keen on using globalization as a source to affect socio-cultural roots of less developed countries. Thus, “One of the major problems of international law is to determine when and how to incorporate new standards of behavior and new realities of life into the already existing framework, so that, on the one hand, the law remains relevant and, on the other, the system itself is not too vigorously disrupted”3. The domain of international law, in the context of incorporating new standards of approaches and guidelines to control social anarchy and different forms of impending danger on humanity has come up with various peacekeeping organizations. At the same time, the issue of assuring security to lives of common people, property and their basic rights also has received adequate attention by the international legal provisions; consequently, adequate attention has also been provided over the issue of collective security, which means during a situation of crisis within a state or between two conflicting states, in order to maintain peace and protect rights as well as lives of common people from rage of violence, other nations will deliver armed forces that will work under the banner of international legal institutions, such as UN. Aim of the armed force would exclusively be protection of civil rights and lives of commoners and under no circumstance such armed force would take control of the sovereign structure of the state. However, no matter how noble the idea behind use of armed force is but use of such device can easily raise the situation of war as the opposite party can always view use of armed force as a situation of waging war, “… this can only be the intention to perform acts of war, that is to say, to use armed force, with all the consequences international law attaches to the use of armed force”4. Even if an attempt is made to justify the use of armed force with the intention of enhancing scope for collective security that also may give birth to the situation of war, “Since collective security in international relations means primarily protection against the use of armed force, which is called war, and since international law does not prohibit war … international security can be established only by treaties imposing upon the contracting states the obligation to restrain from restoring to war”5. In course of this discussion one observation becomes quite important that international law does not contain any provision that would stop a situation of war from being generated. One such a situation is raised, it is clear that one state wishes to exaggerate its power over the other: automatically two parties are developed, one is aggressive and the other is defensive. Thus, the defending party, with perfect intention of self-defense reacts against illegal or unjustified use of armed force by the other party, occurrence of war becomes inevitable6. Thus, in either ways, there is a high possibility, that use of armed force would lead to war and consequently, international legal institutions as well as the decision makers also suffer from a great deal of dilemma whether the use of armed forces should be permitted or not. Such dilemma is also one of the important reasons that on several occasions use of armed force has not been permitted as the international legal institutions thought undertaking such action would ultimately worsen the entire situation. Consequently, the efforts to commit crimes against humanity and peace were only tried in the international law tribunals but when it comes to direct interference of the armed forced in ensuring peacekeeping process, it is due to restrictions over use of armed force the situation remained out of control, costing lives of innocent people and destruction of huge property. Consequently, failure to guarantee protection of peace and human rights can also be regarded as failure of the global governance to ensure protection of a democratic set up within a civilized society. Legal Restrictions on use of Armed Forces and Failure of Humanity: One of the primary aims of the International law has always been to provide highest degree of security to common people. Legal framework of the public international law, after witnessing the massive violation of human rights during the two Great Wars, aimed at providing maximum security to common people in terms of protecting their civil rights, scope to enjoy their rights to the best extent possible and protection of property. It was also been realized that coming up with legal provisions to restrict such acts against humanity are not enough unless these legal provisions are properly implemented. Emergence of the Nuremberg and Tokyo Tribunals play important parts in strict implementation of the provisions of international law, regarding crime against humanity. People, who were found guilty of committing crime against humanity, by misusing the power of armed forces were accordingly punished and at the same time such trials also received “… a recognition of individual responsibility under international law without the usual interposition of the state ….”7 Consequently, strong appreciation and claim in favor of upholding the principles of human rights also clearly provided that not only Great Wars, rather civil rights of common people and scope of human rights are mostly exploited during times of war. Thus, though human rights and laws of war have different origins but within the arena of functionality they intersect each other, “The laws of war and international human rights evolved as distinct bodies of law although they intersect and overlap at certain points”8. Freedom from torture by the military force is one of the most important factors that attracted considerable amount of attraction of the jurists and they have come up with immediate steps so that the magnitude of individual suffering can be lessened. How important is the provision “Freedom from Torture” in the context of International Human Rights movement? Apart from legal scholars, leading jurists also have provided extreme importance to the aspect of protecting this provision. Observing the kind of importance that Universal Declaration of Human Rights has thrust over this provision, legal scholars like, Henry J. Steiner, Philip Alston, and Ryan Goodman have even gone to the extent of commenting, “If one were to ask a representative number of people committed to human rights values which if any right among, say, those declared in UDHR had priority in importance, torture would surely rank high in the list …. ‘If anything is a human right, then it’s the right not to be tortured.’”9 Looking at the kind of humiliation, insult and abuse that common people are encountering throughout the world in every aspect of their lives, there is no scope to deny this aspect. According to the principles of natural law, which has its roots deep within the Holy Lessons of Ten Commandments, God is the creator and sovereign of the world as well as its creatures, including human beings. Consequently, it also suggests that each human being is expected to fulfill three basic duties, namely, “towards others, towards oneself and towards God.”10 The modern discipline of natural law has differed to certain extent from the ancient observation but it has not differed over the issue that each human being needs to fulfill his/her respective duties towards self as well as to others. Finally, the aspect of preserving physical life becomes one of the major pillars for the foundation of natural law.11 Despite several innovations in the field of modern legal systems across the globe the universal appeal of legal jurisprudence is standing on this very basic assumption that primary duty of law is to secure lives of the common people and make the world a better place to survive. Unfortunately, if a rational individual carefully analyzes the history of mankind since the inception of 20th century only, he/she will find that the way law has been used by the State against its people, has no connection with what it holds at the ideological level. On each of the occasions legal implementations have been made by the State with a prior declaration that certain steps are required to be taken for overall benefit of the mass. However, in reality, such implementations were made to deprive people from their basic rights under a typical masquerade so that people in power can attain further political or financial benefits. Political arbitrariness is not something new that plagued common people in the 29th century but the most astonishing aspect is that despite huge progress in the fields of political and moral philosophy human beings have fund out so diverse range of ways so that their fellow human beings can be exploited easily. The wars and political conflicts of 20th century shows how millions of people were maltreated conspicuously; what it does not show is that these different forms of torture made life of even more people a living hell. The Universal Declaration of Human Rights is definitely one of the most progressive steps taken by the International Human Rights movement against such arbitrariness. The kind of torture that common people across the globe encountered during the era of Enlightenment cannot be regarded as an essential feature of the civilized world. Thus the Universal Declaration of Human Rights is widely considered “…the first step towards the abolition of torture in modern times.”12 There is a common notion that torture is essentially physical and any such action that aims at disturbing the mental condition of an individual does not come under purview of the term. In this context, it needs to be remembered that any such actions that disturbs the normal mental condition of an individual will amount to torture, “Torture is a serious violation of the psychical and mental integrity of the person.”13 Inception of the new era has witnessed torture of common people by several means that amounts to both physical and mental torture. It is due to this reason the Universal Declaration of Human Rights has handled the issue of torture, both physical and mental with quite seriousness. At the same time, several other statutes have also been formulated that provide a further stronger foundation to the issue, in the same line with that of the Universal Declaration of Human Rights. Article 5 of the UDHR clearly states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”14 Article 7 of the International Covenant on Civil and Political Rights (ICCPR) has also conveyed the same philosophy almost in the equal terms and in a more specific manner, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”15 If we shift our focus to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), a dimension opens before us in the context of interpreting the term ‘torture’. The Article reads, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”16 Development of this new interpretation; rather interpretation of the term ‘torture’ received a stronger foundation in the landmark case of Ireland v United Kingdom. In order to protect individuals from undergoing inhuman and rigorous treatment from the State, the Commission clearly identified the techniques adopted by the state as degrading as those were capable to “arouse in their victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them and possibly breaking their physical and mental resistance.”17 The most remarkable aspect of this case has been that the Court clearly differentiated between torture and degrading, cruel or inhuman treatment of the victims. According to observation of the Court, torture is nothing but intentional and aggravated form of inhuman treatment of the victims.18 The scope of human rights- its legal purview, for the protection of human rights and providing immunity to them from all kinds of abuses, extended to such an extent that head of the states were also not excused. Prosecution of Augusto Pinochet and his subsequent appeal for immunity from prosecution is a brilliant example that conveys the explicit truth that no matter how much powerful an individual is but his place status cannot be larger than universal nature of human dignity and he does not have any right to violate that dignity by the means of inflicting torture over people. During the military regime (1973-1990), headed by Augusto Pinochet, he was accused of abusing human rights as he inflicted torture, murdered the common people of Chile and took hostage entering the boundaries of universal jurisdiction. During his stay in the United Kingdom a petition was launched, claiming his extradition after arresting. The cases, R V Bow Street Metropolitan Stipendiary Magistrates, Ex P Pinochet ugarte and R V Bow Street Magistrates, Ex P Pinochet, were initiated as he claimed his immunity from prosecution.19 In these cases several issues have been discussed by the jurists, appointed to deliver judgment on this case. However, when it comes to discussion of these cases under the light of “freedom from torture” provision, whether Pinochet received immunity or not that becomes a secondary issue; rather the most important aspect that attracts highest attention that he had been tried and proved to be a guilty of abusing humanity, breaching the provisions of human rights. Thus, in the final case R V Bow Street Magistrates, Ex P Pinochet, (2000), Lord Phillips of Worth Matravers vehemently criticizes Pinochet in the following words, “There can be no doubt that the conduct of which Senator Pinochet stands accused by Spain is criminal under international law. The Republic of Chile has accepted that torture is prohibited by international law and that the prohibition of torture has the character of jus cogens and or obligation erga omnes. It is further accepted that officially sanctioned torture is forbidden by international law. The information provided by Spain accuses Senator Pinochet not merely of having abused his powers as head of state by committing torture, but of subduing political opposition by a campaign of abduction, torture and murder that extended beyond the boundaries of Chile.20 This landmark case clearly points out to the fact that power, political supremacy or military power does not immune an individual from being immune in the eyes of human rights. Freedom from torture and enjoying a peaceful social existence are basic rights of every individual. Any power that aims at violating such rights will automatically become a criminal in the eyes of legal purview of human rights and their conviction will be delivered accordingly. Implementation of statutes like, the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights definitely proved to be effective in the context of providing extra boost to the International Human Rights movement. The provision, freedom from torture, became an efficient instrument in the hands of common people as well as for human rights tribunals so that protection can be provided to common people to a greater extent. Keeping in mind effectiveness and impact of both these statutes it also needs mentioning that none of these provided a clear definition of torture. Quite naturally, there could have been several ambiguities regarding the fact whether a particular action amounts to torture or not. In order to avoid such confusions and vagueness, the term ‘torture’ has been provided with an internationally acknowledged legal definition. According to this definition, “…an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”21 What actually comes up from the entire scenario that no matter how much international law has spoken about protecting the human rights and abuse over basic exercising of such rights by common people, the use of armed force is restrained by several legal clauses. It is not that philosophical rational of the international law has been completely ignorant about use of such force but application of this provision has been limited keeping in mind the kind of abuse that human rights as well as the issue of peaceful existence might encounter. Works Cited Goodman, Ryan. Alston, Philip. and Steiner, Henry J. International human rights in context: law, politics, morals : text and materials. Edition: 3. New York: Oxford University Press US. Kelsen, Hans. Principles of international law. New Jersey: The Lawbook Exchange, Ltd. 2003. Kelsen, Hans. Collective security under international law. New Jersey: The Lawbook Exchange, Ltd. 2001. Rhona K. M. Textbook on International Human Rights. Edition: 3. Oxford: Oxford University Press 2007. Saunders, Phillip Martin. Kindred, Hugh M. and Brunnée. Jutta. International law, chiefly as interpreted and applied in Canada.Edition: 7. Toronto: Emond Montgomery Publication. 2006. Schröder, Peter. and Hochstrasser, Tim J. Early modern natural law theories: contexts and strategies in the early Enlightenment. Berlin: Springer 2003. Shaw, Malcolm Nathan. International law. Ed: 5. Cambridge: Cambridge University Press. 2003. Sunga, Lyal S. Individual responsibility in international law for serious human rights violations, Volume 1991. Massachusetts: Martinus Nijhoff Publishers. 1992. “CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment”. Available at: http://www.hrweb.org/legal/cat.html. Accessed on: 05.05.2010. “Universal Declaration of Human Rights” (United Nations Human Rights), New York: United Nations Department of Public Information, available at: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng. Accessed on: 05.05.2010. “The United Nations INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS”. Available at: http://www.hrweb.org/legal/cpr.html. Accessed on: 05.05.2010. European Court of Human Rights, 1978, 2 EHHR 25. R V Bow Street Magistrates, Ex P Pinochet, (2000) 1 AC 147 House of Lords Delalic (IT-96-21- T¬) Trial Chamber, 21 February 2001. Read More