Political Actors Role in International Public Law - Research Paper Example

?International law Introduction Countries wanting to protect their territorial integrity and also to ‘dominate’ other countries could take aggressiveposture, indulge in violent activities. There will always be strong beliefs against violence initiated by countries or by its leaders; because it is nothing but an authorized killing, mass-scale murder and thereby clear human rights violation. On the other hand, if a common citizen or another country exhibits their ‘opinion’ through violence, again using violence to suppress them could also be constructed as an incorrect act and could lead to more destruction. At those times, restraint can be the best option. At the same time, another best case scenario is approaching proper channels to punish as well as restraint the aggressors. So, if a nation or its leader or group of people indulges in violent activities, it has to be countered not through another cycle of violence, but through a sound legal approach. If a leader or certain individuals of a country initiate and indulge in violence or other criminal activities, they will have to be punished by the legal system, practiced in their country. However, some times, if that leader or individuals manipulate and negatively influence the domestic legal system in their favor, its purpose will be defeated. In that scenario only, the international legal system comes into the picture to rein that specific nation or leader or individuals. This positive avenue could also be blockaded, if they refuse to cooperate or being trialed under the international legal system. So, this paper will analyze the international legal systems, its effect on human rights and importantly on a country’s sovereignty with specific focus on United States of America (USA). Vestiges of multilateralism There are only few institutions which can be considered as the last vestiges of multilateralism in this unilateral leaning world. These seats of multilateralism provides countries a forum where they can come together to share and solve their problems. David Held focuses on these ‘multilateral avenues’ and comes up with philosophical assumptions relating to the legal aspects of those avenues. That is, in the article, Law of the States, Law of People, Held states that the international political system is changing fundamentally, with the emergence of international legal order, applicable to all nations. This legal order equates all the nations and disciplines the nations in all aspects especially human rights. Even while focusing on this multilateral perspective, there is also the other side of the coin, as certain countries are skeptical about this international legal order particularly United States of America. These countries abhor the participation of international institutions in their domestic affairs, and instead state that their local legal system is apt enough to handle those affairs. “…they hold that States remain the leading source of all international rules—the limiting factor that ensures that international relations are shaped, and remain anchored to, the politics of the sovereign state” (Held, 2002). Most countries of the world would not want or allow outside interference in the internal affairs of their country. Moreover, if it is a military form of intervention they will oppose it or even fight against it. “Few countries of the world, large or small, would agree to entrust their security or other vital national interests entirely to a multilateral institution” (Jayakumar, 2003). They will not trust the international institutions and would not allow them to mediate or put their citizens under trial or even prosecute them. Based on the leverage, nations give to these international institutions regarding their ‘internal affairs’, Held had formulated three models, classic sovereignty, liberal international sovereignty and cosmopolitan sovereignty. The model ‘classic sovereignty’ gives the countries a free reign regarding their internal affairs without outside interference, and so it is also the law of states. (Held, 2002). The second model, liberal international sovereignty, exhibits a balancing act as it delimits political power and at the same time extends international influence. So, it embodies elements of both the law of states and the law of peoples. Finally, through cosmopolitan sovereignty Held “conceives international law as a system of public law which properly circumscribes not just political power but all forms of social power.”(Held, 2002). Apart from these political centric aspects, the ‘clash’ between nation’s sovereignty vs. international legal order is also visible in the environmental aspects like the Kyoto Protocol. The relation between environment and legal aspects has a broader perspective, because this issue affects not just the citizens of a particular country, but has an impact on the world population. Human Rights It is clear that there is a direct ‘clash’ between the sovereignty of a country and the human rights of the people, with international legal order being the central factor. That is, when human rights in a particular country is compromised (with domestic legal setup unable to take worthwhile steps), the international legal institutions has to intervene, but that intervention for positive causes could be constructed negatively as an attack on the nation’s sovereignty. So, international legal institutions have to thread a fine line, so they do not infringe on a nation’s sovereignty, even while safeguarding human rights. Thus, nations should care for human rights by themselves and also by allowing international institutions, but at the same time protect its sovereignty. The human rights are of universal nature. “Human rights, because they rest on nothing more than being human, are universal, equal, and inalienable” (Donnelly, 2006). Prior to the World War II, international protection of human rights was minimal and the people were protected only through very few treaties and conventions. Major human rights protection treaties, convention and measures were initiated and expanded after the World War II as a reaction to the destruction, caused by World War II. Also, the post-World War II Nuremberg trials formed the basis for further concentration on the subject of human rights. “A turning point in this regard was the decisions taken by the International Tribunal at Nuremberg (and the parallel tribunal in Tokyo). The tribunal lay down, for the first time in history, that when international rules that protect basic humanitarian values are in conflict with state laws, every individual must transgress the state laws.” (Held, 2002). Further, a slew of domestic commissions focused on truth and reconciliation were set, for example, creation of war crimes tribunals to investigate and punish former Head of states of Yugoslavia, South Africa, Rwanda, Chile, etc. These series of steps only led to the creation of International Criminal Court at Hague, as the site to investigate and rein in the delinquent countries and its leaders, and importantly as the place for human rights protection. Although, importance to human rights is a key factor and it only played a key role in the formation of international legal order, nation’s sovereignty should not be compromised. Thus, it is important that all the three aspects of human rights, nation’s sovereignty and international legal order has to be balanced USA’s opposition to ICC Certain countries will want to suppress and nullify the role of international institutions in their internal affairs, with USA being the main proponent of this theory. International Criminal Court (ICC) was established mainly to punish and correct the wrongs committed by nations, its leaders, its individuals and also its legal system. “…International Criminal Court (ICC) that officially came into existence in July of 2002… attempts to address the war crimes, crimes against humanity, the crime of genocide, and the crime of aggression…the Court seeks to remedy the spectacular failures of national courts that often accompany weak states” (Krasnor, 2004). Since its inception, it has been able to fulfill its objective, but with mixed results. That is, non-acceptance and non-ratification of ICC by USA has made it less powerful. Although, former American President Bill Clinton signed the Rome statute for the establishment of the ICC, his successor George W. Bush decided to “unsign” it. USA due to certain internal pressures withdrew from ICC and this negatively affects both USA as well as ICC. By withdrawing from ICC, USA is acting against its national interests and indirectly ignoring the important issue of human rights. This is ironical because USA’s foreign policy puts a lot of stress on maintaining human rights all over the world. However, by snubbing ICC and shrinking from fully engaging in international law, USA disregards human rights. Americans do not accept ICC because that could elevate ICC into a superior body, which could undermine its preeminence and importantly as it would not ‘dance’ to the tunes of the American government. “The American ‘nay’ vote at the Rome Conference was partly a result of the US realization that the court would neither be subject to the manipulation of the Security Council nor part of a system of justice that must bow to the consent of a state in order to proceed with the investigating of a national.” (Krasnor). The other important point is the concern of Department of Defense that US soldiers involved in war or combat in sensitive locations could be trialed in ICC. “To have a court ready to investigate U.S. officials for war crimes or crimes against humanity might inhibit officials from sending forces into combat and using aerial bombardment that might kill many civilians” (Johansen, 2001). Positive role of ICC ICC cannot compromise the sovereignty of USA or any other nation, as it actually strengthens sovereignty of nations by strengthening the domestic legal systems. ICC indirectly motivates national courts, particularly in weak or transitional states to give honest justice. That is, the ICC encourages domestic courts to try all the war crimes and crimes against humanity in a genuine manner, without any scope for sham trials or false proceedings. “ICC is not universal jurisdiction but a system of universal justice with the Court actively behaving as a check on the functioning of domestic justice” (Krasnor, 2004). When one focuses on the fledging democracies or fragile states, it is clear that their existence and even the formation of strong domestic legal system in those countries is indirectly relational to the acceptance of ICC by developed countries specifically USA. That is, only if the ‘superpower’, USA favors ICC, those countries will also exhibit their commitment to ICC, leading to the formation of international legal order. “If the International Criminal Court is not considered fair and is not recognized by superpowers, it will be of limited use to the society that wishes to send an abusive leader to this international forum. “ (Krasnor, 2004). However, “United States appears to be exempting itself from rules of the game that it believes should apply to others. This is singularly inappropriate when the game involves allegations of crimes against humanity, genocide and war crimes” (Kahn, 2003). These countries should delimit their power and give a lot of autonomy to its legal institutions. Implications The main implication that arises because of USA’s non-conformation of ICC is that, USA could turn into a place where international criminals could be protected from the purview of ICC. “These agreements open up the possibility that U.S. territory will become a safe haven for international war criminals or perpetrators of grave human rights abuses”. (Krasnor, 2004). USA’s self-interests regarding ICC and also in other issues are negatively affecting other global institutions and conventions. USA’s undermining of international or multilateral institutions can be seen, when it launched pre-emptive strikes against Iraq in 2003, without the fullest sanction of UN. In order to rein in on the dangerous activities of one leader, USA launched attacks on a sovereign country without UN approval. “…the world is being threatened by a very aggressive and militaristic form of imperialism bent on world domination” (Naylor, 2002). Along with the support of few of its Western allies and also Middle Eastern allies, the U.S. marched into a sovereign country of Iraq under the pretext of finding the supposed Weapons of Mass Destruction (WMD). “The term “international consensus” thus referred, not to the actual body of opinion in the world, but the opinion of those powers that agreed with the US.” (Chibber, 2009). Although, it could not find any WMDs, on the positive side, it dislodged the persecuting regime of Saddam Hussein. Because of this unilateral action by the USA, UN seems to have been made irrelevant, quite ironically, by one of its main founders. With, USA being at the vanguard of this questioning action, the relevance of multilateral institutions like UN and ICC are questioned. The other action of USA impacting the vestiges of multilateralism and more importantly on the well being of this planet, is its dampening role in the passage of Kyoto Protocol. The Kyoto Protocol, an international agreement linked to the United Nations Framework Convention on Climate Change, stipulates that 37 industrialized countries including USA and the European community has to reduce greenhouse gas (GHG) emissions. (“Kyoto Protocol”). However, USA in contradiction to popular opinion is not taking positive steps in that direction. This non-confirmatory stance of USA by can be visible in how George W. Bush refused after his election in 2001 to ratify the Kyoto agreement on greenhouse gas omissions. Krasnor (2004) also raises this disregarding attitude of USA towards international legal conventions and protocols. “United States has also stood out alone in its opposition to the 1997 Mine Ban Treaty, the Optional Protocol prohibiting the use or recruitment of Child Soldiers as well as the Kyoto Protocol addressing global warming”. This stance of USA is not only affecting its citizens, but also the people of the world, as global warming is proved to wreck various aspects of people’s living from raising the temperature to raising the sea levels in various low laying countries, leading to floods. Although, many countries including the developing ones like China and India are also not accepting Kyoto and other protocols and conventions, which wants to limit their industrialization, USA seems to be major catalyst. If USA is able to follow these multilateral conventions and protocols relating to global problems like this, it can facilitate or even force other countries to follow the same. Conclusion The world has started becoming more organized as well as civilized and also controlled, after the world population from the middle of the 20th century started segregating themselves into different nations, regions, etc and more importantly as a formulated various laws to govern them. As a country’s citizens, they became liable to the law of their land, and that made them live in a more disciplined and positive way. However, that is the not the case all the time, as apart the common individuals, nations and its leaders in total disregard to their local legal systems and importantly international legal order started indulging in aggressive actions. This non-confirmation to the international legal order is main issue with many countries particularly USA not wanting to be part of it. “The U.S. opposed the ICC from the beginning, surprising and disappointing many people.” (Shah, 2005). Their main grouse is it will compromise their sovereignty and also it has other set of reasons. Many countries have succeeded in juristically protecting their free will in the guise of sovereignty. Although, sovereignty has to be an integral part of every nation’s existence, sometimes it clashes with the nation’s duty of protecting human rights. In that scenario, the important and ethical point is, nations should no longer demand sovereignty in lieu of human rights, with the shield given by international legal order. Thus, the role of ICC and other multilateral bodies in safeguarding human rights is more important, than USA’s concern about compromising sovereignty. At the same time, it would be better if all the three factors of human rights, sovereignty and also the International legal orders are balanced and given due importance. References Chibber, V. (2009). American militarism and the US political establishment: the real lessons of the invasion of Iraq, Socialist Register. 23-53 Donnelly, J. (2006). International Human Rights, 3rd edition. Boulder: Westview Press. Kahn, P. W. (2003), Why the United States is so opposed. Retrieved from: http://www.crimesofwar.org/icc_magazine/icc-kahn.html Krasnor, E. (2004). American Disengagement with the International Criminal Court: Undermining International Justice and U.S. Foreign Policy Goals. Retrieved from: http://www.trinstitute.org/ojpcr/6_1krasnor.htm Held, D. (2002). “Laws of State, Laws of People: Three Models of Sovereignty.” Legal Theory, 8 (1): 1-44 Jayakumar. S. (2003). Exaggerated Hopes and Exaggerated Fears – Towards Balanced view of United Nations. Retrieved from: http://app.mfa.gov.sg/2006/press/view_press.asp?post_id=895 Johansen, R. C. (2001). U.S. Opposition to the International Criminal Court: Unfounded Fears. Retrieved from: http://www.nd.edu/~krocinst/polbriefs/pbrief7.shtml Naylor, K. (2002). “The Present State of the Movement and the Challenges We Face.” Canadian Dimension, 36 (2): 36. Shah, A. (2004). International Criminal Court, Retrieved from: http://www.globalissues.org/issue/102/international-criminal-court “Kyoto Protocol”, United Nations Framework Convention on Climate Change. 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