International Law and Globalisation - Essay Example

International Law and Globalisation 1.0 Introduction In the words of a realist, International politics is a world free from all legal ad moral restraints, where the powerful, and the not so-powerful states possess the freedom to act in instinct, at their own leisure and liberty, and ultimately to use force with impunity (Dino Kritsiotis, Introduction, The power of law as international language). A world devoid of a law would be catastrophic to mankind itself. International law is the law for the states of the world. The world is a mixture of the good, the bad, and the ugly. The world is synonymous of the rich and poor nations. While some nations have the power to throw its might, there are numerous others who find it hard to sustain themselves. Such is the economical imbalance, that unless there is a uniform law to protect the weaker states from discrimination, the world would turn into a battle ground. International borders are make-believe of the society that we belong to. It is this society that formulates laws to protect ourselves from perpetuators. In order to safeguard sovereignty and freedom, societies around the world joined together to enforce laws to bring equality and peace. How and why are these laws enacted? We live in a world guarded by rules and laws designed by us (read society) to bring order and security to its members. Without these, the world would be one big battle field. The spread of weapons of mass destruction, global climatic changes, violent religious extremism, human rights violations, trade deficits, and others are all man made and still evident despite a new world order to reign in terrorism and human right violations (Porter, 2006). International law is made by society for the benefit of society. Unless the world that we live in has laws to abide by, lawlessness would have cleansed this world of humanity. International law is, simply, the law of international society. The whole human race uses social processes to build its future to be in accordance with what it wills that its future should be (Philip Allott, p.111, New International Law). These problems are not just of national interest, but international as well. Terrorism has no boundaries, and terrorists can inflict damage to property, besides taking innocent lives in the name of pretence. The menace of such drastically barbaric acts of terrorism makes the news headlines in papers around the globe everyday. Slavery and child labour is a major cause for concern in third world countries. So much so that, whatever happens before our eyes today are man-made. Natural calamities aside, anything and everything that is reported in the papers, television and radio are all a consequence of human activities. To protect and guide civilisation through such unpredictable and barbaric acts of terror and destruction, all states from around the world, combined to form a common law agency, called the United Nations Organisation (UNO). Head Quartered in New York. The UN is the police of world affairs. International laws are formed to curb the menace posed to society. It is laws made by societies to protect them form lawlessness. International Administrative law oversees the use and misuse of power delegated by international law. It ensures that all states abide by the laws recommended by the states are abided and that, if and when, an intentional misdemeanor occurs, laws are enforced to block any damage to society. International administrative law is designed to ensure that powers under international laws are used in accordance with the international social objectives which they are designed to serve, that’s to say, that they are used in the international public interest ‘The actual is not natural and inevitable. The actual was made by us and can be remade by us. The actual is the possible. The function of international lawyers is to change the course of human history’, said Philip Allott in 'New International Law' in British Institute of International and Comparative Law (edition) 'Theory and International Law: An Introduction' (Allott, 1991). International law aims at regulating the behaviour of states. States (countries) represent the principal actors of the world. They are legal entities, drawn by boundaries and rules, with aggregates of human beings dominated by an elected government that wields authority over them. It has its own political, economic, cultural, ethnic and religious identity (Cassese, 2001). There are laws for different fields. International laws cover most aspects of human interests. Laws that are more familiar and in practice to us are: International Labour Law, the International Economic Law, and International Public Order. This paper focuses on the implementation of these laws in world politics today. 2.0 Executive Summary The responsibility for violation of rules governing the behaviour of a state lies with the state itself and not individuals belonging to it. In the case of a state, it is governed by its constitution, duly elected by its society. As seen in the earlier chapter, the totality of the systematic process of the society is presented to society in what is called constitution. The constitution of a society is a bit like the personality of a human person. It’s a structured summation of a particular functioning identity, evolving over time. Constitution forms the society as the society forms its constitution. We see that, whatever the action of the constitution, it is an act constituted by the society that formed it. It creates great semantic force-fields for itself and its society. Religion, mythology, morality, philosophy, art and so on are all part of its own creation. These inputs create an image with which it is identified by societies elsewhere. The systematic adherence to these principles determines the specific outputs of the given society, the interactive effect between the society and its members, and between the society and other societies. This is what constitution is all about (Philip Allott, p.109, New International Law). Constitution forms society as does society forms its constitution. Society is a system constituting itself as a system. Constitution enforces its influence upon its society. Society is a creation of human consciousness. It is this consciousness that emphasizes what is right and what is wrong for the society. The same is the case with international law. Unlike state laws, where the state involved takes action against the perpetuator(s), in international law, the laws formed by combined societies of the world, are enforced on perpetuators who bring acrimony and lawlessness to another society. This is more than evident in the following sequence of events that happened in the recent past, internationally. In International law, if a State official breaks a law; a military or civil aircraft is directed to fly over a no-fly zone, a national court disregards an international treaty granting certain rights to foreigners, or a law officer infringing diplomatic immunity by arresting a diplomat, the State to which the official belongs will be targeted for no fault of their own1 The State that became victim to the official’s transgression can claim compensation as reprisal. The incident that took place in Corfu in 1923 is a prime example of such actions2. Under normal process within a State, if an individual were to violate the law and cause harm to an unsuspecting victim, the State enforcement agency (read police), will punish the guilty alone. He is taken to court and sentenced to undergo punishment. These laws were made by the society to which it belonged, and they thought that by such external actions, the sovereignty and security of its people were being provoked. If there were no law to identify the right from wrong, such actions would have been termed as atrocious, or just bullying. Laws identify the right from wrong. Unless there is a distinction between these two traits, lawlessness would prevail and the world would become a slaughter house. Having seen the above example of a state, in the international arena, there is a difference. An individual’s action can bring his country to task. Take for example the Taliban controlled Afghanistan under Osama Bin Laden. He and his loyal lieutenants began to terrorise other countries, using the local population as shields. Russian independence was put under severe test through armed rebellion from across the border. The Russians retaliated, but gave up in fear of killing innocent lives. The terrorists went a step further and using hijacked commercial airlines, slammed them into the World Trade Centre, killing thousands of innocent people. The Americans, with the support of its allies, launched an attack on the Taliban ruled Afghanistan. Though the Taliban was displaced and a democratic leadership was established there, lose of property and human lives was unimaginable and irreplaceable. The cause for such an action was man-made. The law needs to deal more firmly with such perpetrators of crime. International law needs to be rewritten to deal more firmly with such dastardly acts of human sabotage. The law needs to be amended in such a way that terrorism does not raise its ugly head again. Globalisation has opened up new vistas to economic development. Though many pundits believe this to be true, there are those who will swear by its discrimination. Many countries believe that by opening up their border to foreign investment, those countries will drain the natural resources available with them and also eat into the country’s economy. The rich countries will become richer, and the poor, poorer. This theory is true to some countries, but has been a boon to others. With globalisation, countries such as China and India have grown rapidly economically. Infrastructural developments have increased employment opportunities, and reduced unemployment and poverty. Healthy local and international competition, accessibility to quality products, better and cheaper local markets, is all a part of global direct investment and production. This is what globalization is all about. Unless there were rules to govern the functioning of such a process involving direct foreign participation in a third country, the whole process would have been termed differently and rebuked. The law-makers were there to make laws that identified what is right, and what is not. Now, consider the two cases aforementioned. Lawmakers need to interpret what is right and what is not. Similarly, lawmakers need to formulate stronger laws to curb the menace of terrorism and discrimination. With globalisation, many countries have enjoyed economic growth and prosperity. China and India are strong examples of economies enjoying greater economic development than most developed countries today. Exports have grown and China is today the largest exporter of steel products. India leads in software exports and development, so much so that, Microsoft has opened a development centre in India, and is actively contemplating on opening another one there soon. They are now in a position to dictate and compete on equal terms with advanced nations. The United States, Canada, the European Union, and other major developed nations are now talking of taking China to the World Trade Organisation (WTO) for trade embargo. The law on anti-dumping is being used to curb the influx of Chinese goods into these countries. In order to curb the practices of such unfavorable trade ethics, the International economic law protects the rights and discrimination of unfair trade. Most of the developing countries in Africa and Asia have challenges in eradicating poverty, illiteracy, unemployment, human rights, and child labour. Most of the poor live on a budget less than a dollar a day. The United Nations has come up with master plans to support the eradication of these social stigmata. Laws to protect the under-privileged against labour and human rights abuse, funding non-government organizations to help remove illiteracy and unemployment are some measures planned and in execution by the world body. However, some measures employed by this representative body are far from satisfactory. The international labor law helps monitor and correct unethical prejudice against poorer section of society. International law, under the legal constitution, organizes the interactive willingness and acts of two or more member states in society. If one were bound by a legal relation, then it is mandatory that it acts in conformity of this legal relation, a civilized act that has no motive to disturb, hurt or dislodge normal life. Legal relations socialize one’s behaviour. Any individual, group or state that deviates from this theory is accountable for its actions. The international society to which we all belong, watches the way its legal relations take place. International law monitors both social and legal accountability and will initiate action to curb such activities that may be deemed harmful to society. Terrorism is a menace to society. Cold-blooded and barbaric methods to destroy democratic life are their motto. Ever since the Taliban ran the country in Afghanistan, pockets of terrorist training centres began to crop up all over the country and neighbouring Pakistan. Mercenaries were taught to use sophisticated weaponry and brain-washed to launch attacks on civilisation as human bombs. Terrorism was now at its height and presented its ugly face to the world. The attack on the World Trade Centre in New York, the series of explosions that rocked London on a working day, the attack on the Parliament House in New Delhi, and the numerous attacks on harmless human beings are stark reminders of their operative. The United Nations Resolution 34/145 (1979) states: Measures to Prevent International Terrorism which Endangers or Takes Innocent Lives or Jeopardises Fundamental Freedoms, and Study the Underlying Causes of those Forms of Terrorism and Acts of Violence which Lie in Misery, Frustration, Grievance and Despair and which Causes Some People to Sacrifice Human Lives Including Their Own in an Attempt to Effect Radical Changes (Elagab. Dr. 1997). The law on international public order acts on crimes and violent abuse of power by rouge states and groups against other members of the society. 3.0 Why Law? Law is a combination of rules and regulations that a constitution lays down for protecting and welfare of its society. If these rules are broken, the law takes action against the perpetuator of the crime. As in international law, state law seeks to see a state free of all legal and moral restraints, where powerful (and the not so-powerful) member of the society possess the freedom of speech, action, and right. This freedom will not be misused under any circumstance to hurt or injure another member(s) of the society to which he/she belongs. The perpetuator will not act in instinct, at his/her own leisure and liberty, to cause harm or disruption. The law is made by society to protect society. International Administrative law is concerned with the use and abuse of all power delegated by international law. International administrative law is designed to ensure that state powers under international laws are used in accordance with the international social objectives which they are designed to serve, that’s to say, that they are used in the international public interest (Philip Allott, p.112, New International Law) In the backdrop of these activities, the United Nations, in compliance with the majority votes of its permanent and non-permanent members draft resolutions to prevent damage to property and lose of lives. Before we move further on this subject, it is logical to understand what are the fundamental principles governing International Relations. Most States have constitutions that are made by their respective societies for the society. The constitution then formulates fundamental principles, guidelines that must be adhered to by the society. These are intended to serve as basic guidelines for the life of the whole community where they live in. Besides imposing general obligations, they also set clearly defined policy lines and goals to be adhered to. International laws are quite different. When States came into being, there were no agencies to write constitutional laws, nor were there any State that could dictate terms to others to follow. A body of law gradually evolved under the impulse of convergent interests and exigencies of States. Gradually, there was an increase in the number of corpus of rules by accretion of new norms based on a few fundamental postulates, such as freedom, equality, and effectiveness (Cassese, 2001)3. Right from the beginning of the international community, States had evolved two principal methods to create legally binding rules: 1. Treaties 2. Custom Both these suited the basic need of being passive principals, not enforcing themselves on the States that did not wish to be bounded by them. The law was brought into being by States that wished to be bound by them. Treaties, applicable only to the contracting parties, reflected the individualism prevailing in the international community. Custom on the other hand, gave rise to rules that bound all members of the community, but rested on mutual consent. The emergence in the twentieth century of new States through independence, many of whom had different ideological, political, and cultural backgrounds meant that the international regulation of treaties had to become more certain, and detailed with the demands of these States. This was the platform for the formation of the 1969 Vienna Convention on the Law of Treaties between States and the International Organisation. This was followed by the Treaty Convention again in 1986 in Vienna (Cassese, 2001)4. Custom has been on the wane after the end of the Second World War, with the exception of three important areas: Emerging Economic Interests: Solutions to specific problems at sea due to rapid economic growth of new economic demands may not find favour within treaties. Such a situation warrants satisfying the interests and needs of the groups of States involved in this conflict. Solutions to such problems can be brought about by the emergence of customary rules. Major Political and Institutional Conflicts: This refers to the development of new needs of the international community, giving rise to disagreements among States, which might prove to be extremely difficult to achieve through treaties. The modified Article 27.3 of the UN Charter, wherein a decision may be made even if one or more permanent member abstained is a prime example. The third area is Updating and Elaboration: This includes those parts of the body of the customary law which newly independent States have considered to be acceptable, but require a few changes and clarifications. Several rules on warfare come under this area. Treaties are the conclusion of agreements. A major feature of treaties is that they only bind the parties that have agreed to be bound by them (Treaties, p.126, Para 2). Thus, treaties may impose obligations, or create legal claim on non-conforming States. There are two types of treaties: Bilateral & Multilateral In olden days, there was no central authority to enforce law on warring factions. Self-help prevailed; only the aggrieved State was authorised to react to a breach of its rights made by another State. There are two categories of enforcement measures in such a scenario. Armed intervention is the act of protecting one’s interest against the aggressor, and armed reprisal, wherein there are strong reactions against wrongful acts by the aggressor. In any case, States were authorised to use force to pursue their interests and it did not matter whether they engaged in conflicts as a stance to unlawful conduct by the other (Cassese, 2001)5. Force and the threat of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations are prohibited by the ban laid down in Article 2.4 of the UN Charter and a corresponding customary rule. If armed reprisals are ruled out, the weakness and the frequent failure of the UN system and economic sanctions, the Victim State will be left at the mercy of the State (s) bent on violating international law. The UN collective security system was formulated to maintain and restore international peace and order, and not to enforce international law (Cassese, 2001)6. War crimes mounted to; serious infringement of an international rule, a rule belonging to the corpus of customary law, or be part of an applicable treaty, and violation under customary or conventional law. To understand the intensity of the crime, it is mandatory to consider the content of the rule that has been allegedly breached. Since no list of war crimes exists in customary law, crimes can be inferred only from international humanitarian law being assertedly violated (The objective and Subjective elements of the crime, p. 247). Crimes against humanity are punishable regardless of whether they were perpetrated in time of war or peace. The mental equilibrium of the perpetrator at the time of the crime is hard to prove and stands controversial. Courts insist on three things to come to a conclusion. They are, the offender’s criminal intent, the second is the link between his misbehaviour and practice, and finally, the awareness of the perpetrator on the consequences of his action on them (Cassese, 2001)7. Genocide is intentional killing, destruction, or extermination of an individual or groups of people, and conceived to be a crime against humanity. Genocide acquired autonomous significance as a specific crime in 1948, when the UN General Assembly adopted the Genocide Convention. Article IV of the Convention suggests trials before the courts of the State in which the crime took place, or before an international penal tribunal. Article VIII asks any contracting party to call upon a competent member of UN to take action under the Charter (12.2.3 Genocide, Para 5-6, p.252-253). In the subsequent chapter we take a look at some more pronounced laws that are billed in the UN. These laws are chartered by member states of the UN that have identified and executed the draft for law in international relations. 4.0 International Laws and their Relevance Universal Declaration of Human Rights (1948) Article 2 of the UN Charter declares that every individual born on earth is entitled to all the rights and freedom set forth, without distinction in the name of race, colour, sex, language, religion, birth, nationality, political opinion and property. Article 3 refers to right to life, liberty and security, Article 4 says that no individual will or should be subjected to torture, inhuman and degrading treatment or punishment. Under Article 9, no individual shall be subjected to arbitrary arrest, detention or exile. Terrorism At its 105th plenary meeting in December 1977, the General Assembly, on the recommendations of the sixth committee, adopted the Resolution 32/147, titled, ‘Measures to prevent international terrorism which endangers or takes innocent human or jeopardises fundamental freedom, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance, and despair and which causes some people to sacrifice human lives including their own, in an attempt to effect radical changes (Elagab. Dr. 1997)8. Hijacking and Related Attacks on Civil Aviation: In the face of the September 11 hijack and attack on WTC in New York, it may be appropriate to throw some light on what the UN Charter proclaimed of that catastrophe. The UN has adopted a number of rules to deal with terrorist acts related to civil aviation. The principal instruments and rules were at: 1. The 1963 Tokyo Convention, where offences and other Acts committed on board aircraft. Article 3(2) of the 1963 Tokyo Convention imposes an obligation on States to assert their own jurisdiction over crimes committed on board aircraft of their nationality wherever they happen to be. 2. The 1970 Hague Convention for the suppression of unlawful seizure of aircraft, which was prompted by the disturbing figures of hijacking incidents .The Convention reached a consensus that: A. The implementation of a duty on the Contracting State to punish or extradite the offenders. This is widely known as the Hague extradition/prosecution formula. It is because of this formula that any putative hijacker will realize that he or she will have no safe haven in any part of the world. B. It requires the Contracting State to make the commission of the offences described in the Convention, attracting severe penal sanction under their respective domestic rules. C. It required the contracting State to exercise their domestic jurisdiction over individuals committing such offences anywhere in the world, regardless of the country of origin 3. The 1971 Montreal Convention was noted for its consensus reached on Suppression of Unlawful Acts against the Safety of Civil Aviation designed to stem the increasingly frequent tide of cases of sabotage against aircraft and air navigation facilities. 4. The Protocol for the Suppression of Unlawful Acts of violence at Airports Serving Civil Aviation deals with acts of violence which can endanger the safety of people at airports serving international or domestic flights or which can jeopardise the safety of airport operations. Article II protocol, amended from the earlier Article I Convention, sets to punish any person or persons who unlawfully commits with intent to cause harm or death by any device. Article III deals with the jurisdiction of the offenders, and require extradition (Elagab. Dr. 1997)9. 5.0 Conclusion Ever since the world became civilised, man has made rules to affect effective governance. With advance in technology, crimes have become far more sophisticated. Efforts to rope in terror have not met with much success. The UN Conventions brought forth several treaties and custom to encounter eventualities. Despite these measures, terrorism has grown alarmingly. International laws on extradition are promising. A majority of nations have joined hands to combat this menace, which is now showing signs of improvement. International laws must be created and amended from time to time to combat uncertainties. The challenges are huge, yet there is a speck of light at the end of it all. Without laws, the world would have been a battlefield of barbarism. Society creates semantic force-fields for itself, such as its religion, mythology, morality, philosophy, art and so on. The systematic principles of society determines the specific outputs of the given society, determines the interactive effect between the society and its members, and between the society and other societies. The totality of the systematic process is called as the constitution. The constitution of a society is somewhat a reflection of person’s personality. It’s a structured summation of a particular functioning identity, evolving over time forming itself over time. While constitution forms society, society forms its constitution. Society is a system constituting itself as a system. The law, under the legal constitution, organizes the interactive willingness and acts of two or more members of the society. If one were bound by a legal relation, then it is mandatory that he/she/they act in conformity of this legal relation, an act, the way society wants one to act in. The law of property contract, money, corporate law, and so on are sets of legal relations which are designed to organize particular forms social transformation, especially economic transformation. International Administrative law is concerned with the use and abuse of all power delegated by international law. International administrative law is designed to ensure that powers under international laws are used in accordance with the international social objectives which they are designed to serve, that’s to say, that they are used in the international public interest. Law of international public order are used to stop all sorts of crimes and violent abuse of power to, including the many kinds of violence governments are tempted to use against each other and against other human beings whom they are supposed to serve. International Economic law provides the legal relation necessary to make possible the economic transformation of the planet for the survival and prospering of all its inhabitants, human and non-human. International economic law includes environment protection too. 6.0 References 1. Keith Porter, Globalization Issues, Failed States Spread Chaos, Newsletter, November 28, 2006, About.com, http://globalization.about.com/About_Globalization_Issues.htm. 2. International Monetary Fund, Globalization: Threat or Opportunity? January 2002, https://www.internationalmonetaryfund.com/external/np/exr/ib/2000/041200.htm 3. Dr. Omer Y. Elagab, International Law Documents relating to Terrorism, 2nd Edition, UN General Assembly Resolution 34/145 (1979), p. 27, Cavendish Publishing Limited. 1997. 4. Antonio Cassese, International Law, 1st Edition, 2001, Oxford University Press. 5. Philip Allott, New International Law 6. Dino Kritsiotis, Introduction, The power of law as international language Read More