International Law Issues - Essay Example

?Question Critically evaluate the role of treaties within the international law and the extent to which they represent a positive alternative to custom. Customary international law is complex as it is derived from uncertain sources. Moreover, there is no centralized judicial body creating customary international law capable of binding the world at large. As a result there is significant uncertainty regarding whether or not a rule of customary international law is created and where a rule of customary international can be found.1 Even so, it has been argued that custom is a valid source of international law because it is derived from state agreement. Treaty law essentially entails the same binding nature as custom, and is only distinguished from custom because it is more formal than the former.2 However, treaties are generally written law and as such is a more certain source of international law.3 Although some international law scholar refer to treaties and customary international law interchangeably, there is a clear distinction since customary international law is bereft of written law and treaties are identified with written instruments. For example, Article 2(a) of the Vienna Convention on the Law of Treaties 1974 proves that: ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.4 In this regard there are two types of treaties under international law that represent important sources of international law. The first kind of treaties is law-making treaties that establish rules that are universally and generally applicable. The second kind of treaties at international law are “treaty-contracts” which are concluded between two or more states and cover specific issues relative to the contracting states.5 Law-making treaties are direct sources of international law, while contract-treaties merely outline treaty obligations between the contracting states and thus circumvent the need to identify and apply customary international law, unless the treaty requires the application of customary international law.6 Since the mid-19th century there has been an unprecedented proliferation of law-making treaties which have come to be known as “international legislation”.7 The proliferation of international law-making treaties was responses to the inefficiency of international customary law in meeting the immediate needs of the international community for the regulation of mutual interests. The immediate needs of the international community arose out of developments at the economic and industrial levels which were increasingly tightening the interconnectedness of states. Thus relationships between states became more complicated and diverse.8 Law-making treaties can be viable alternatives to customary laws because as history informs, law-making treaties typically serve to main functions. First they may articulate crystalized rules of international law, thus making customary law more visible and essentially codifying customary law into an identifiable source of law. Secondly, law-making treaties may identify new issues and formulate new rules of international law designed to respond to new issues or to change current practices by states.9 For instance, UN Law of the Sea Treaty 1982 establishes new rules relative to jurisdictional parameters applicable to the seas.10 The UN Law of the Sea Treaty 1982 also codifies some customary rules of international law. However, the 1982 Treaty also provides new provision such as the creation of the International Sealed Authority for controlling the distribution of marine resources. Moreover, transit passages were established for replacing the concept of innocent passage via coastal states’ territories. Thus states ratifying the 1982 Treaty would necessarily be bound by new international laws relative to the distribution of marine life and transit passages.11 Thus law-making treaties perform an immediate function that customary international law cannot perform. Law-making treaties give expression to a rule of law immediately whereas, customary international law requires consistent state practice and recognition in order to become crystalized. Self-executing treaties are particularly important for articulating new laws with immediate effect. A self-executing treaty “imposes immediate obligations.”12 Moreover, no additional action is required by contracting states when a treaty is characterized as self-executing. The self-executing treaty immediately upon being ratified becomes part of international law and the domestic laws of the contracting states. Bilateral treaties are typically self-executing. However, a majority of multilateral treaties are declaratory rather than self-executing. As declaratory instruments, multilateral treaties identify standards of behaviour and usually bind contracting states to make the necessary national legislative changes to incorporate these standards of behaviour.13 Therefore as sources of international law, treaties are more visible and identifiable sources of international law than customary international law. It is the immediacy of treaties that ensure that current issues are identified and responded to in a regulatory framework urgently. Thus the international community does not have to be concerned about the time it takes for national courts to crystalize customary rules of international law. Bilder, Schachter, Charney and Mendelson argue however that international customary law and treaty laws are “entangled” and together perform important functions for the articulation of international standards of behaviour.14 Treaties may “influence or lead to new customary law” or treaties my prevent “the development of new customary international law”.15 Treaty law may prevail over customary law, but there are times where it may not. Moreover, even when Treaty law replaces customary law or prevails over it, customary law may nevertheless arise at some subsequent time to close gaps left by Treaty law or to assist in interpreting provisions contained in Treaties.16 It therefore follows that while treaties may act as important alternatives to customary international law, customary international law remains an important part of international law. Treaties do not always contemplate every issue that might arise in the relationships between states. Thus, a number of gaps may be expected to follow from the implementation and ratification of various treaties. Customary international law therefore arises to fill in those gaps. Thus, rather than an alternative to customary international law, treaties are supplemented by international customary law and vice versa. In other words, customary international law and treaties function together to ensure that standards of behaviour and obligations among the international community are established and regulated. Question 2: Diplomatic Premises The Rutarian Embassy in London is governed by Article 22 of the Vienna Convention on Diplomatic Relations 1961. By virtue of Article 22 provides that the “premises” of a diplomatic “mission shall be inviolable” and “the agents of the receiving State may not enter them, except with the consent of the head of the mission”.17 Moreover: The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.18 In addition, diplomatic premises may not be the subject of “search, requisition, attachment or execution.”19 It therefore appears from the wording of Article 22 of the Vienna Convention on Diplomatic Relations 1961 not only prohibits the police entering the Rutarian Embassy in London, but also prevents a search of the premises for the persons who are responsible for firing the shots into the demonstrators and killing four of them. It would also appear from the wording of Article 22 of the 1961 Convention, that the UK may have failed in its duty to protect the Rutarian Embassy from disturbances. It may be argued however, that the disturbances could not have been prevented by the UK since it originated from outside of the building. Therefore appropriate steps to prevent persons appearing outside of the Embassy would have necessarily involved a breach of Article 11 of the European Convention on Human Rights 1950 which protects freedom or assembly provided it is peaceful.20 The European Convention on Human Rights 1950 was incorporated into UK law by virtue of the Human Rights Act 1998.21 Although the demonstrators did throw stones at the Embassy, the Rutarian Embassy did not give local law enforcement an opportunity to respond to the fray as someone inside the building retaliated by firing on the assembled crowd. Thus the authorities’ responsibility was immediately shifted from protecting the diplomatic premises from demonstrators to protecting demonstrators from the occupants of the diplomatic premises. Although the inviolability of the diplomatic premises is not accompanied by exceptions in the text of the Vienna Convention on Diplomatic Relations 1961, it has been established that there are exceptions to this general rule of international law. When diplomats have been caught in the commission of violent acts, that diplomat may be detained by the receiving state’s police for the purpose of preventing more violent acts. These kinds of exceptions have been observed by the International Court of Justice in US Diplomatic and Consular Staff in Tehran (US v Iran).22 Moreover, the principle of absolute inviolability as prescribed in Article 22 of the Vienna Convention on Diplomatic Relations 1961 is doubtful when read together with Article 41. Article 41 provides that all persons enjoying immunities have a responsibility to “respect the laws and regulations of the receiving State” and also have a responsibility “not to interfere in the internal affairs of that State”.23 Retaliating against the protestors certainly demonstrated a dereliction of the duty to respect the laws of regulations of the UK and certainly demonstrated a dereliction of the duty not to interfere in the internal affairs of the UK. The dereliction of both duties was manifested by taking the law into their own hands. While it is not certain whether or not diplomats themselves fired the shot, the shots were fired from their premises which enjoy privileges and immunity. However, Article 41(1) is prefaced by the words “without prejudice to” the immunity and privileges accorded diplomats. It can therefore be assumed that despite the duty to respect the laws and not to interfere in the internal affairs of the receiving state, immunity and privileges continue throughout. In this regard, Article 41(3) is perhaps more instructive. Article 41(3) of the 1961 Convention provides that: The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law...24 Article 41(3) is not prefaced by words retaining the right to diplomatic immunity or privileges. Thus impliedly, once the premises are used in a manner inconsistent with its Convention purposes, the extra-territorial nature of the diplomatic premises is lost and thus the police may enter the building for the purpose of making an arrest or at the very least making inquiries. Even so, it is not altogether clear what authority the police may have in terms of an abuse of inviolability of the Rutarrian premises. Boczek noted that there have been instances, although extremely rare in which the authorities of the receiving state have forcibly entered “diplomatic premises” in instances where the sending state’s diplomatic premises have abused the inviolability privilege.25 This is particularly true in cases where the actions taken on the premises create a security risk for the receiving state.26 A similar incident occurred in London in 1984. During an anti-Qaddafi protest in London outside of the Libyan embassy, shots were fired from inside the Libyan embassy killing a police officer. However, British authorities did not force their way inside the building. Instead, the UK subsequently terminated diplomatic ties with Libya. However, this situation is far more serious as four persons were killed and just as many injured. Moreover, pursuant to the United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons Including Diplomatic Agents, 1974, the UK has a duty to investigate and ensure that diplomats are not under threat of harm from those within the Rutarrian Embassy firing the shots on the protestors.27 Since Article 22 of the 1961 Convention provides that entry can be made with the consent of the head of the mission, police should first obtain permission from the head of the mission. Failing that, the police may enter the building to make inquiries and to make an arrest pursuant to their duties to protect the mission and the duty of the mission to ensure that the mission’s premises are not being used in an abusive manner and to prevent further acts of violence on the part of the Ruttarian diplomats. Question 3: War Crimes at International Law Until the creation of the International Criminal Tribunal at Nuremberg in the aftermath of the Second World War, only members of the military had been tried for war crimes.28 For the first time, political leaders were held responsible for the commission of war crimes, thus introducing into international criminal law a new offence attributing responsibility to political leaders under the guise of command responsibility.29 As a result of the Nuremberg trials 7 principles of international criminal law were developed for the identification and prosecution of war crimes. The principles of international law established in the Charter of the Nuremberg Tribunal and its subsequent tribunal were adopted by the International Law Commission of the United Nations in 1950.30 The 6th principle identifies war crime offences as “violations of the laws or customs of war” including “but not limited to, murder, ill-treatment or deportation to slave-labour,” “ill-treatment of prisoners or war, of persons on the seas,” killing hostages, “plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”31 Principle VII goes farther to provide for the creation of secondary offences which has subsequently developed into offences of command responsibility. Principle VII provides: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.32 These offences are entirely broad and leave room for interpretation. It is obvious that the Military Tribunal at Nuremberg and the International Law Commission of the UN were informed by the atrocities of the Second World War and the lack of precedent for creating and prosecuting offences. The intention was to establish a wide net so that atrocities not previously identified could be caught regardless of a lack of previously established offences. For example, Principle II provides that even if domestic laws do not create an offence for a specific act constituting a crime pursuant to international law, the person committing such an act will not be relieved of “responsibility under international law.”33 The problem with Principle II is identifying offences pursuant to international law. Dinstein suggests that there are two sources of war crimes under international law. The war crimes listed by the Nuremberg Military following the Second World War which are encapsulated in Principle VI and also include the use of unlawful weapons such as chemical weapons and the Geneva Conventions for the Protection of War Victims 1949.34 The 1949 Geneva Conventions list a number of war crime offences against property, civilians, prisoners of war, the sick and the wounded.35 Other offences are listed in Article 85 of the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts (Protocol I) 1977. Essentially the Additional Protocol identifies a number of grave breaches which create offences out of attacks on civilian populations and civilian objects.36 The list of war crime offences are decidedly comprehensive with the intention of casting a wide net intended to catch any contemplated or unanticipated act of aggression. Thus the right to a fair trial encapsulated in Principle V37 is virtually a misnomer as many war crime offences can be defined and created without after the commission of an act. Moreover, Principles III and IV identifies two broad categories of individuals who might be responsible for war crime offences. In this regard Principle III creates complicity for the persons who act as “Head of State” or Government officials.38 Principle IV provides that: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.39 International criminal law has thus developed to create war crime offences that are divided into two categories: primary and secondary offences.40 Primary offences assign direct responsibility for actors committing the actual war crime offences and secondary offences assign criminal liability for those in a position of control and command and thus can assign responsibility for war crime offences to commanders, political leaders and more recently to civilians who commit war crimes.41 Developments emanating from the establishment of the ad hoc tribunals such as the International Tribunals for Yugoslavia and Rwanda have expanded on the number of war crimes and criminal responsibility particularly in regards to command responsibility which now includes successor responsibility.42 The Rome Statute of the International Criminal Court 1998 codifies the trends in international criminal law and casts just as wide a net in identifying offences of war crimes at the international level.43 War crimes identified under the Rome Statutes of 1998 are derived from a variety of sources and essentially replicate the Hague Convention respecting the Laws and Customs of War on Land, Protocol 1 Additional to the Geneva Conventions 1977, the Hague Declaration (IV, 3) Concerning Expanding Bullets 1899 and the Geneva Gas Protocol, 1925.44 War crimes also capture acts of aggression in international and non-international armed conflict and include all kinds of violence to life and limb especially murder, mutilation, torture and cruel treatment.45 Offences of war crimes are thus restated in Article 8 of the Rome Statute of 1998 and informed by the experiences of war, the Rome Statute casts a wide net intended to ensure that both anticipated and unanticipated acts against international and national customs are caught by the Rome Statute 1998. The main difficulty from the perspective of commanders and their subordinates is not knowing in advance when an offence is committed or when criminal liability will be attached. In the final analysis the offences constituting war crimes are broad and as a result uncertain and unpredictable. The elements of the offences are similarly unknown and are subject to adoption by a majority “of the members of the Assembly of State Parties” and “may be proposed by “any state party, the judges acting by an absolute majority and the prosecutor.”46 Essentially, the offences of war crimes and the elements constituting those offences can be invented to fit a particular situation or event thus certainty and predictability usually associated with the concept of a fair trial are lacking. Question 4: Concept of Humanitarian Law International humanitarian law forms a part of international law which is aimed at resolving issues “of a humanitarian character during armed conflict”.47 The main treaties dealing with international humanitarian law are the four Geneva Conventions for the Protection of War Victims, 1949 and the two subsequent Protocols applicable to international and non-international conflicts.48 The main purposes of international humanitarian law are to limit “the use of force and to protect victims of warfare”.49 Since the implementation and ratification of the Geneva Conventions and its two additional Protocols, the world has witnessed a number of armed conflicts, both non-international and international. In more recent times, international armed conflicts occurred in Afghanistan and Iraq. Non-International conflicts have occurred in Africa, Europe, Asia and Latin American with military operations on-going in the Middle East. A majority of the conflicts have been overlooked as increasing attention is placed on the so-called war against international terrorism.50 Regardless of whether these conflicts can be justified, there is no doubt that when international humanitarian laws are observed, human suffering is great. Where international humanitarian laws are not observed, human suffering is even greater.51 It can therefore be argued that international humanitarian law is inadequate for limited the use of force and for preventing or at the very least minimizing human suffering. This is evidenced by the fact that even where international humanitarian laws are observed human suffering is great. Also the fact that international humanitarian laws are at times unobserved indicates that there is a weakness in terms of enforcement under the international instruments creating international humanitarian law. Realistically, international humanitarian laws were codified in the Geneva Conventions may be adequate for protection against human suffering in circumstances where state actors are held accountable. However, in contemporary conflicts there are a greater number of offenders which include non-state actors who are primarily the responsibility of national jurisdictions and this becomes more problematic when non-state actors are acting in furtherance of and in complicity with belligerent states.52 In order for non-state actors to fall under the long arm of international humanitarian law there are specific requirements that must be met. First they must be recognized as “insurrectional groups” by the state that they are fighting.53 The problem with this requirement is that many states are reluctant to admit that they have lost effective control of their respective territories and will often deny recognition.54 Secondly, non-state actors can only fall under international humanitarian laws if they have “effective control over some part of the territory” and, that the “civil commotion” has reached a specific level of “intensity and duration.55 Apart from the difficulties of establishing international status of non-state actors in times of conflict, many of the non-state actors are organized into what is described as “irregular forces” which are difficult to monitor and regulate.56 These irregular forces are well hidden and have little or no respect for international humanitarian law. They often engage in practices involving attacks on civilian populations and organized armed forces. As Rogers observed, “one would find it hard to justify many of the methods” used by irregular forces “if international humanitarian law is applied”.57 Thus these non-state actors typically operate out of the reach of international humanitarian laws and systematically violate international humanitarian laws indicating that the law as it is presently constructed does not bind non-state actors and as such does not adequately protect against human suffering and does not restrict the use of force. David however argues that theoretically, international humanitarian laws do apply to and should be enforceable against non-state actors. According to David, when a state ratifies the Geneva Conventions, they are binding the state and all human beings within the state to the Conventions and thus the obligations and rights contained therein.58 While it is theoretically possible to bring non-state actors under the umbrella of international humanitarian law, it is far from certain when and how non-state actors are accountable to international humanitarian laws.59 Non-state actors for the most part do not regard international humanitarian laws as applicable to them.60 This attitude is driven by the fact that non-state actors do not play a role in the international humanitarian law-making process. Complicating matters relative to permitting non-state actors to participate in the international humanitarian law-making process, states are increasingly reluctant to share law-making responsibility with non-state rebel and armed groups. This reluctance is influenced by attitudes that groups hostile to the states should be accorded legitimacy.61 Non-international conflicts and the relevant international humanitarian laws as reflected in the Geneva Conventions and its subsequent Protocols contemplate the behaviour of non-state armed groups. However, given the attitude of non-state armed groups and the isolated incidents of belligerence and hostilities by various irregular forces and individuals, international humanitarian laws have proven inadequate for responding to the realities of contemporary conflicts. This is particularly problematic because much of the international humanitarian laws are focused on the conduct of state actors and interstate conflicts.62 Until such time as states come to the realisation that non-state rebel groups should necessarily participate in the law-making process, the attitudes of non-state actors will continue to be problematic. Non-state actors will continue to take the position that international humanitarian laws do not bind them and as such will continue to attack civilians and civilian objects and thus continue to inflict grave human suffering on civilians at the expense of the state involved. As for irregular forces and individual rebels and insurgents, international humanitarian laws are wholly inadequate for dealing with these state actors who are generally hidden and commit crimes against humanity in ways that are virtually impossible to monitor and measure. It must therefore be left to the individual national criminal justice systems to invest the necessary resources to the identification, detection and prosecution of these non-state actors. In the final analysis, there is no justification for states to protect sovereignty against non-state organized armed groups at the expense of its own citizens. International humanitarian laws would be more effective if states would be more committed to the safety and security of their respective citizens over national sovereignty. Bibliography Textbooks Boczek, B. A. International Law: A Dictionary. (Lanham, MD: Scarecrow Press, Inc., 2005). Cassese, A. International Law. (Oxford, UK: Oxford University Press, 2005, 2nd Edn.). Martin, F. International Human Rights and Humanitarian Law: Treaties, Cases and Analysis, (Cambridge, UK: Cambridge University Press, 2006). McCormack, T. and McDonald, A. Yearbook of International Humanitarian Law – 2003 Vol. 6, Volume 2003. (The Hague, The Netherlands: T.M.C.Asser Press, 2006). Rothwell, D. R., Kaye, S., A-Khavari, A. and Davis, R. International Law: Cases and Materials with Australian Perspectives. (Cambridge, UK: Cambridge University Press, 2008). Shearer, I. A. Starke’s International Law. (Sydney, Australia: Butterworts, 1994, 11th Edn). Slomanson, W. R. Fundamental Perspectives on International Law. (Boston, MA: Wadsworth, 2011). Articles/Journals Bilder, R. B. Schachter, O. Charney, J. I. and Mendelson, M. ‘Disentangling Treaty and Customary International Law,’ (April 8-11, 1987) 81 Proceedings of the Annual Meeting (American Society of International Law, 157-164. Cali, B. ‘On Interpretivism and International Law.’ (2009)20(3) The European Journal of International Law, 805-822. Clapham, A. ‘Human Rights Obligations of Non-State Actors in Conflict Situations.’ (September 2006) 88(863) International Review of the Red Cross, 491-523. David, Prof. E. ‘International Humanitarian Law and Non-State Actors: Synopsis of the Issues.’ (Spring 2003) 27 Proceedings of the Bruges Colloquium/Relevance of International Humanitarian Law to Non-State Actors, Special Edition, 27-40. Dinstein, Y. ‘The Distinction Between War Crimes and Crimes Against Peace,’ Cited in Y. Dinstein and M. Tabory, (Eds). War Crimes in International Law. (The Netherlands: Kluwer Law International, 1996) 1-18. Herr, S. ‘Binding Non-State Armed Groups to International Humanitarian Law,: Geneva Call and the Ban of Anti-Personnel Mines: Lessons from Sudan.’ (2010) Peace Research Institute Frankfurt, Report No. 95, 1-42. International Committee of the Red Cross. ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’. (March 2004) 86 (853) IRRC, 213-244. Kammerhofer, J. ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of its Problems’. (2004)15(3) EJIL, 523-553. Kellenberger, J. ‘Respect for International Humanitarian Law: A Majour Challenge, a Global Responsibility.’ (16 September, 2008) Speaking notes of Dr. Kellenberger President of the International Committee of the Red Cross, Conference at the European Parliament, Brussels,1-4. Ratner, S. R. ‘Corporations and Human Rights: A Theory of Legal Responsibility.’ (2001)111 The Yale Law Journal, 443-545, 491. Roberts, A. and Sivakumaran, S. ‘Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law.’ (2012) 37(1) The Yale Journal of International Law, 108-152. Rogers, Gen. A. ‘Asymmetric Warfare: Some Personal Reflections.’ (Spring 2003) 27 Proceedings of the Bruges Colloquium/Relevance of International Humanitarian Law to Non-State Actors, Special Edition, 15-26. Tomuschat, C. ‘The Legacy of Nuremberg.’ (2006) 4 Journal of International Criminal Justice, 830-844. United Nations, ‘Principles of International Law Recognized in the Charter of Nuremberg Tribunal and in the Judgment of the Tribunal, with Commentaries 1950,’ (2005) II Yearbook of the International Law Commission, 374-378. Wenqi, Z.‘The Doctrine of Command Responsibility as Applied to Civilian Leaders: ICTR and the Kayishema Case.’ Cited in H. Li; S. Yee and T. Wang (Eds). International Law in the Post-Cold War World: Essays in Memory of Li Haopei, (New York, NY: Psychology Press 2001) 373. Statutes European Convention on Human Rights 1950. Geneva Conventions for the Protection of War Victims 1949. Human Rights Act 1998. Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts (Protocol I) 1977. The Rome Statute of the International Criminal Court 1998. United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons Including Diplomatic Agents, 1974. UN Law of the Sea Treaty 1982. Vienna Convention on the Law of Treaties 1974. Vienna Convention on Diplomatic Relations 1961. Cases US Diplomatic and Consular Staff in Tehran (US v Iran) (1980 ICJ Rep. 3). Read More