International Rule of Law: A Work In Progress - Essay Example

? International Rule of Law: A Work In Progress? Introduction Is there an international law? The short answer is that sovereignty, the concept that a state has the right to be left alone, trumps any kind of international concern. That said, there are certain ways that the international community attempts to police the nation-states that make up the global community. Treaties are one way, although treaties are not prescriptive they exhort principles that nations are to follow, but how these nations actually implement laws that comport with these principles is up to the individual nation-states. Even if laws could be passed, there is such a complex web of international courts that have conflicting decisions, there would never be a consensus on how to interpret and enforce a given law. The possible exception is the Responsibility to Protect, which means that if a nation-state is committing atrocities, the international community may intervene. However, as shown in this essay, even this doctrine often is toothless. There are just too many pragmatic concerns which are paramount over the Responsibility to Protect citizens from atrocities. This essay will examine the international law idea, and show that it is a work in progress, but that, in reality, having a true international law would be a practical impossibility. State Sovereignty             The main reason that the UN has not been able to implement any kind of international law that has any kind of ?eethto it is because of state sovereignty. State sovereignty is a concept that has a strong tradition. It has been consistently the underpinning of international relations.1 The concept of state sovereignty is relatively simple every state can decide their own rules and law for themselves. Every state also has the right to issue edicts and dispose of its own resources, without the international community dictating to each individual state how they are to rule themselves.2 What this mean, in essence, is that the standard policy held by the United Nations, the default position, is non-intervention in the rules and policies of the individual nations. In fact, since the concept of non-intervention is such a strong one, the attempt to violate a state's borders, in an attempt to coerce a state to follow an international rule or law that the state itself has not adopted as its own, would give the state reason to defend itself. The UN would give the state this right.3 There are exceptions to state sovereignty, however. And, state sovereignty, overall, as a concept, has grown increasingly flimsy throughout the years. The reality is that each of the state has more porous borders than they used to, because of globalization. Each state has influences from other states, and each state is connected to other states through advances in technology and communication. 4 What this means is that the borders for the states are often illusory, because every state has influences from others around the world. This, however, does not negate state sovereignty, so much as it makes each state a little less autonomous. Responsibility to Protect What does negate state sovereignty, however, is the fact that the United Nations, and the world community, has a duty to protect the people around the world.5 What this means is that the concept of state sovereignty may be negated if a nation-state is engaged in active atrocities against its peoples.6The way that people are protected, despite the presence of state sovereignty, is through international treaties, development actors and security actors.7 There is a complex system of human rights treaties that protects human rights, and the international community also imposes strict codes of conduct on the nation-states.8 The security actors, including the UN Security Council, are the ones who enforce the treaties and the codes of conduct.9 The security actors acts as the wing for the development actors, which includes the donor states. Human rights are also protected by other means, according to Chesterman (2008).10 For instance, Chesterman (2008) states that the international community's actions in reducing or eliminating the immunity that was enjoyed by the heads of state is one way that the international community has protected human rights. Another means of protecting human rights, according to Chesterman (2008) is through the judiciaries that are in the nation-states. The UN and other international law-making bodies implement principles and guidelines, and the independent judiciary is charged with actually enforcing these principles upon the people of their nation. The concepts of protection for people, and how that principle negates state sovereignty, is encompassed in the overall principle known as the responsibility to protect.11 This is a doctrine which was established in the year 2000, through a commission by the Canadian Government. The Canadian Government organized the International Commission on Intervention and State Sovereignty (ICISS) in response to the atrocities in Rwanda, Somalia, Srebrenica and East Timor during the 1990s. Because of the issue of state sovereignty was so strong, the ICISS was formed to study how state sovereignty intersected with the issue of human rights, and how states could intervene in the event that a nation-state was committing atrocities against its people.12 Out of the report that the ICISS submitted, the doctrine of Responsibility to Protect (R2P) was formed.13 The R2P doctrine is a doctrine that may be used by nation states when intervention is necessary because of the atrocities occurring in another nation state. The doctrine may only be used if that nation-state that is committing the atrocities cannot or will not protect its own citizens.14 Moreover, states cannot just invade another state, if that state is not protecting its citizens. Rather, the international community has the obligation to try to prevent further atrocities and must attempt some kind of conflict management with the state.15Under the R2P doctrine, the nation states who are tasked to enforce the Responsibility to Protect are considered to be agents for the international community, and are able to act on a moral basis.16 States may also act against another state, by invoking the R2P doctrine.17 The ICISS was the way that states effectively were able to circumvent the traditional concepts of state sovereignty. One of the ways that this occurred is because the actions against the offending nation states was no longer termed the right to intervene.18 This is important, because the shift in language signaled another shift in the focus of the intervention. The right to intervene focused upon the state that was intervening. The responsibility to protect, however, focused more upon the state that is offending. In other words, the Responsibility to Protect is more focused upon the rights of the citizens of the offending state, and less on the rights of the intervening state.19 Moreover, there was another way that the R2P doctrine was able to circumvent the traditional principles of sovereign immunity, and that was by stating that the intervening state has a responsibility to the citizens of the offending state. What this means is that the intervening state has more of a right to intervene than it did prior to the doctrine's formation.20 The R2P doctrine is a limited one, however, which is further evidence that the international rule of law is a work in progress a true international law would not have severe limitations. Moreover, the R2P is really the only instance where there is an effective international rule of law, as will be discussed below. The limitations of R2P are that it may only be invoked when there is a large-scale killing, genocide, ethnic cleansing and other serious violations of international humanitarian law.21 Another limitation is that it may only be authorized after the UN Security Council has allowed it to be authorized, and then only when the threshold genocide, large-scale killings, etc. - has been met, and the state has shown to the international community that it cannot or will not act.22 These are not the only limitations on the doctrine. Other limitations are that the action that is taken against the offending state must be multi-lateral in other words, there cannot be one nation that is intervening on another nation.23 Moreover, the stated purpose of the intervening nations must be that the end of human suffering would be the only goal, and the intervention itself must be supported by the people of the offending state, and the region surrounding the offending state.24 So, if, say, the multilateral community decides to intervene in Iran, the international community must first get the ?ermissionof the people of Iran, including the alleged victims, and must also get the blessing of the countries surrounding Iran. Moreover, the doctrine must only be invoked after all other efforts had failed, and there also must be a reasonable chance that the intervention would be a success.25 Therefore, the duty to protect citizens is one way that the UN has promoted international law, and it is probably the closest thing that the UN has to international law. The edicts, rules, principles and laws that encompass the responsibility to protect is the way for the international community to provide some measure of peace and stability in the world, although, as shown in this essay later, with regards to nations like Darfur, even this principle is not entirely perfect. While other measures of the rule of law, as shown below, are even more difficult to implement, the responsibility to protect is one reason why the international rule of law would be considered to be a work in progress, as opposed to a total failure. Other Reasons Why It is Difficult to Establish Effective International Law Aside from the concept of state sovereignty, there are other reasons why it has been exceedingly difficult for the UN to establish an effective international rule of law. These are the reasons why an international rule of law has been limited to the R2P doctrine, at least in the traditional sense. The UN is at the focus of the makings of the international law, as well as the enforcement of these laws. They accomplish the international law through a system of treaties.26 These treaties are imperfect as a system of international law, however, for several reasons. First, they are often contradictory and conflict with the UN Charter. Different treaties have different definitions of whatever the subject of the treaty is, and they conflict with one another. Because of the conflicts between each other and, sometimes, with the Charter of the UN, the international courts have had to interpret which treaty language prevails.27 This, in turn, brings in another issue, and that is that the international courts are not equipped to deal with the interpretations of international law. The international law system has many courts, each of which have a particular jurisdiction. Each of these courts have the right to interpret international law according to their own patterns of stare decisis (prior court decisions) and according to their own autonomous judicial decisions. The result of this is that the courts may have rulings with completely conflict with one another. Moreover, there are some areas of the law, including human rights and immigration, that is not subject to court authority, or may only be subject to minimal court authority. Courts may also have jurisdiction which is only partial the European Court of Justice and International Bodies and the Human Rights Committee are examples of this and the actions that these courts take are not coordinated with one another, or to the larger system of the International Law System.28 Moreover, these treaties do not operate as law, necessarily, as much as they operate as a series of guidelines and principles. A treaty might have the principles of justice and respect, and might outline how these principles should be carried out the states bound by the treaty. However, these are not prescriptions for the states, just recommendations. Moreover, the states are not involuntarily bound by international courts, such as the International Court of Justice. Rather, their participation in these courts is strictly voluntary.29 Because of these reasons, one could say that the international community is not bound by international laws at all. There is another mechanism by which the international community, represented by the UN, has attempted to bind its members by a law, and that is through the use of customary international law (CIL).30 The problem with the CIL, however, is that there are many different bases for the origins of these laws. These laws are created through resolutions which are non-binding; treaties; and juris writings. Each of these sources have different bases, and often are conflicting. There is little hope for reconciliation of these sources.31 Therefore, the CIL is ostensibly a ?ule of law,but, like the treaties, which is the other mechanism for international law, the CILs are non-binding. Moreover, the CILs do not have as much weight as a treaty, because the CILs are often based upon documents which are themselves based upon principles, not law. Therefore, aside from the Responsibility to Protect, the method of enforcing some kind of international law has been incomplete, at best. The laws that are imposed upon the international community are really principles, which means that the nation-states are free to interpret the principles as they wish, and they are also free to craft laws which comport with these principles as they wish. There is no ?awthat is binding upon the international community. There are treaties and there are customary international laws, but both of these are based upon principles, not law. Moreover, the international legal system is a patchwork of legal systems. There are different international courts, with different jurisdictions, different court rules, different court decisions, etc. A decision made by a court may conflict with a decision made by another court, and there is not a way to reconcile the issues, because the jurisdiction and stare decisis of one court has as much weight as the jurisdiction and stare decisis of another. There is not a way to reconcile all the rules, laws and judicial interpretations that nation-states may put forth regarding any one issue. So, while the UN may make treaties and establish principles, it cannot establish law in any real way. And, even if it did attempt to establish law, the different courts would interpret the law differently, which would mean that each court would have a different result for any given issue. This makes the enforceability of any kind of international law problematic at best. Darfur Darfur is a case study that shows how difficult it is to implement the Responsibility to Protect, even in the worst of circumstances. This is because the principle of state sovereignty is still a concept which has a lot of international sway, and is still considered to be the default position of the international community. Darfur experienced widespread genocide from early 2003 to mid 2004. The Sudanese government and the militias which were backed by the Sudanese government destroyed hundreds of African villages. They also killed and raped the inhabitants of these villages and displaced millions. Yet, the world community did, essentially, nothing about this. The only actions that the UN took against the government of Darfur and the militias was to demand that the Sudanese government disarm the Janjaweed militias. The UN Security Council had claimed, for months, that the genocide of Sudan was at the very top of its agenda, and this was essentially the only action that it took, for months.32 Other actions that the UN Security Council took were just as toothless. For instance, they passed a ban on arm sales to the rebels and the Jajaweed militias, yet the government, who supplied the arms to the rebels, could still buy arms. They also passed a resolution, resolution 1564, which stated that people who were responsible for the genocide would be brought to justice, and the African union expanded. If the Sudanese government did not comply with these measures, then they would be sanctioned with efforts that would effect their petroleum industry.33 These were the only measures that the UN Security Council took against the Sudanese government, five months after the atrocities began threats, entreaties and investigations.34 The reason why the UN Security Council was so impotent against the Darfur tragedies, Clough35 believes, is not only because of the concept of state sovereignty, but also because some of the countries with veto power on the Security Council China, Russia, the United States, France and the UK has powerful economic interests in Sudan, and passing a more substantial resolution against the country would affect those economic interests. What veto power means, essentially, is that if anyone of the above-listed countries did not approve of a given action, then that action would not be taken. So, since China owned some 40% of the Sudan's oil fields, the United States had potential oil revenue from the area, and Russia was supplying arms to the Sudanese government, these three countries had strong economic incentive not to pass a tough resolution against the Sudanese government.36 The threatened economic interests of three of the Security Council members was one of the reasons why the UN Security Council failed to install tough measures against the Sudanese government for the atrocities in Darfur. Another reason, according to Bellamy (2006)37 is because the world became less inclined to get involved with other countries' affairs after the disastrous 2003 invasion of Iraq. In the case of Iraq, the international community saw the invasion as an example of a country which is powerful and strong the United States urging the international community to support invading a country which is weak, but has oil fields. In other words, the invasion of Iraq was supposed to be a humanitarian venture, but the international community surmised that the ultimate objective in invading that country was so that the strong country of the United States could gain control of the weak country of Iraq's oil fields. Bellamy (2006)38 argues that the invasion of Iraq caused a shift in norms. The UK and the United States, prior to the Iraq invasion, were the deciding countries on the UN Security Council if these two countries want an intervention, then the Security Council would probably authorize an intervention. However, after Iraq, this changed, as these two countries were widely seen as abusing their privilege. Therefore, what the UN and the United States want, with regards to intervention, is no longer what the international community will authorize. And, as of the time of the Darfur genocide, a new norm was not in place. So, the Security Council essentially had no way to order intervention the old norm proved to be problematic, and a new norm was not yet formed. The UN Security Council thus was ineffective against the atrocities of Darfur. Conclusion International law is a work in progress, but there are many pragmatic challenges that signal that international law, a true international law, may never be possible. Basically, with the concept of state sovereignty, implementing any kind of international law by which all countries must abide would be problematic at best, impossible at worst. States basically cannot be told what to do how to run their government, what laws by which their citizens must abide, what laws by which their government must abide, etc. Treaties are in place, and this is probably the closest thing to international law, but treaties are principle-based, not prescriptive. A treaty may say, for instance, that human life is sacred, and that discrimination is wrong. However, the treaties also leave it up to the individual countries how these countries would interpret these principles, and what laws these countries would pass to eliminate discrimination. Customary international law is even more ineffective than treaties. The CIL is the law that is customarily implemented in some countries, but, again, all countries do not have to implement this law. And, even if an international law could be passed, enforcement and interpretation would be up to the individual nation-states. Each state has their own court, and the international courts are overlapping and contradictory. One international court would make a decision regarding a law, and another international court would make a different decision, and there would never be a clear consensus on whose interpretation would be correct because each of these court's interpetation would carry equal weight. Perhaps the exception to the above rule is the Responsibility to Protect. But, again, this is not a law so much as it is a principle. The countries in the international community have a responsibility to citizens who are experiencing atrocities. This is the international principle. The doctrine is based upon this principle, but the doctrine is also very limited. The intervention must be the last resort, there must be large-scale atrocities, and the offending country must not be willing or able to protect its own citizens. All that said, the reality of this doctrine is that it, like international law in general, is often ineffective. The UN Security Council must authorize intervention, and the hard truth is that the countries on the UN Security Council may not authorize intervention, even when millions are being displaced, raped, and dying, if the countries on the Council have economic interests that will be threatened by intervention. Moreover, the folly in Iraq has made the UN Security Council even more hesitant to intervene. These pragmatic concerns are layered on the concept of State Sovereignty itself. Therefore, even the R2P often is ineffective. Nations are paralyzed because of fear that intervention is really bullying, and also paralyzed because of the reality is that intervention might affect their economic interests. This is really the bottom line international law sounds good in theory, but, in practice, it is not realistic. Sources Used Axworthy, L & Rock, A. (2009).  ?2P: A New and Unfinished Agenda,Global Responsibility to Protect, pp. 54-69.   Bellamy, A. (2006).  ?hither the Responsibility to Protect?Ethics and International Affairs, 20(2): 143-169.   Bellamy, A. (2006).  ?reventing Future Kosovos and Rwandas: The Responsibility to Protect After the 2005 World Summit.”  Available at: http://www.carnegiecouncil.org/media/Bellamy_Paper.pdf   Bellamy, A. (2008).  ?he Responsibility to Protect and the Problem of Military Intervention.”  International Affairs, 84(4): 615-639.   Bellamy, A. (2009).  ?ealizing the Responsibility to Protect.International Studies Perspectives, 10: 111-128.   Bellamy, A. (2010).  ?he Responsibility to Protect: Five Years On,Ethics and International Affairs, 24(2): 143-169.   Bellamy, A. (2009).  Responsibility to Protect. Cambridge: Polity.   Brown, A. (2008).  ?einventing Humanitarian Intervention: Two Cheers for the Responsibility to Protect,House of Commons Library. Available at: http://pustakahpi.kemlu.go.id/dir_dok/Reinventing-Hum-Int-Two-Cheers-for-%20the- %20R2P.pdf   Chandler, D. (2004).  ?he Responsibility to Protect? Imposing the Liberal Peace,International Peacekeeping, 11(1): 59-81.   Charlesworth, H. (2010).  ?eminist Reflections on the Responsibility to Protect, Global Responsibility to Protect 2: pp. 232-249. Available at: http://docserver.ingentaconnect.com/deliver/connect/mnp/18759858/v2n3/s4.pdf expires=1301954883&id=62108454&titleid=75004686&accname=University+of+ California+San+Diego&checksum=D5B59C4D91DDF6FDB0F0886BAD1FDB71   S. Chesterman (20008) ?n International Rule of Law?American Journal of Comparative Law, 56: 331-361. M. Clough. ?arfur: Whose Responsibility to Protect?Available at: http://www.responsibilitytoprotect.org/files/HRW_Darfur-WhoseResponsibilitytoprotect.pdf Cooper, R.H. (2009).  Responsibility to Protect.  New York: Palgrave Press.   Gheciu, A. & Welsh, J. (2009). ?he Imperative to Rebuild.”  Available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1747-7093.2009.00203.x/pdf   J. Goldsmith & D. Levinson (2009) ?aw for States: International Law, Constitutional Law, Public Law.Harvard Law Review, 122: 1791-1850. ICISS.  ?he Responsibility to Protect: Report of the International Commission on  Intervention and State Sovereignty. Available at: http://www.iciss.ca/pdf/Commission-Report.pdf   Luck, E.C. (2010). ?he Responsibility to Protect: Growing Pains or Early Promise?Ethics and International Affairs, 24(4): 349-365.   Shukla, K. ?he International Community? Responsibility to Protect,Available at: http://www.fmreview.org/FMRpdfs/FMR30/7-9.pdf   Stahn, C. (2007). ?esponsibility to Protect: Political Rhetoric or Emerging Legal Norm?The American Journal of International Law, 101(1): 99-120.   United Nations General Assembly (2004). ?ollow Up to the Outcome of the  Millennium Summit.Available at: http://www.un.org/secureworld/report.pdf   Weiss, T.G. (2007).  Humanitarian Intervention. Cambridge: Polity Press.   Read More