The International Rule of Law - Essay Example

?Introduction The United Nations has attempted to implement an international rule of law, however, it has not been entirely successful. The reasons why it is difficult to implement are manifold. One reason is that states traditionally have sovereignty, explained below. Another reason is that the UN operates with a system of treaties, and these treaties often have overlapping and contradictory provisions, which are difficult to reconcile. The courts which are taxed to reconcile these contradictory and overlapping provision are themselves contradictory and overlapping, and each of these courts have limited jurisdiction. This means that the decisions made do not have precedents on the other courts, which means that the provisions of international rules will continue to be applied inconsistently. A good example of a rule, however, is the responsibility to protect doctrine, which necessitates intervention in cases of genocide and other widespread human rights abuses. That said, even this doctrine is applied inconsistently, as seen in the case of Sri Lanka, a nation which has been at war for 30 years. This nation has not been the target of R2P intervention, and has, for many years, been largely ignored by the United Nations. This case study shows the limits of international rules of law, and demonstrates the need for a more comprehensive approach to be taken on the international stage. The Traditional Meaning of Sovereignty The United Nations' attempts to establish an international rule of law meets a stumbling block in the form of the concept of state sovereignty. State sovereignty is a powerful and traditional concept, and has traditionally been the bedrock of world order and interstate relations. (Supplement to the International Commission on Intervention and State Sovereignty). What state sovereignty means is that every nation-state has the right to rule its people, and dispose of its resources, by its own independent edicts (International Commission on Intervention and State Sovereignty, p. 12). Because of the concept of state sovereignty, the protected and respected norm, even by the United Nations, is one of non-intervention. State sovereignty is such a paramount concept that, if one nation violates it, then the offended nation can defend itself by right, and the United Nations protects this right to defend (International Commission on Intervention and State Sovereignty, p. 12). That said, state sovereignty is not absolute, and is subjected to international rules and regulations. Moreover, in today's globalized world, state sovereignty has become ever-more tenous. The reality of today's world is that national borders are often breached by environmental, cultural and economic influences through technological and communication advances (Supplement to the International Commission on Intervention and State Sovereignty). State sovereignty is also limited in that nations agree that, in order to maintain their sovereignty, to protect their citizens, and this enables the international community to hold wayward nations accountable for their own actions towards their citizens (International Commission on Intervention and State Sovereignty, p. 12). In other words, if a nation is committing atrocities against its citizens, then that nation effectively relinquishes its own sovereignty, and the international community has the right to step in and intervene when this occurs. International Rule of Law The other concept that should be understood in this context is the concept of an international rule of law, and the brief historical basis for this. Chesterman (2008) has explored this concept in depth. He states that the international rule of law has been promoted through international treaties, development actors (including donor States), and security actors (such as the U.N. Security Council). The latter has promoted the rule of law as a form of conflict resolution, claims Chesterman. He sees the international rule of law operating to protect human rights by issuing human rights treaties, as well as international codes of conduct. Independent judiciary principles and guidelines on what constitutes discrimination are other ways that the international community has promoted human rights. The immunity for heads of state has also been substantially reduced by the international community, which is another way of protecting human rights. The rule of law has further been used to further economic development in developing nations, such as those in Africa, and Chesterman uses the example of the United States efforts in 1960s and 1970s to reform the legal and judiciary systems of African, Asian and Latin American nations to illustrate this concept. Peace and security is another focus of the rule of law, and Chesterman states that peace operations, such as those used in Guatemala, Liberia, Haiti and Cote d'Ivoire, have rule of law components (2008: 28). Chesterman goes on to specifically focus on the United Nations, and their efforts in implementing and enforcing the international rule of law. He states that the United Nations operates through a system of treaties and legal mechanisms. Chesterman also states that there is uncertainty as to whether or not the United Nations itself is subjected to its own treaties and laws. The treaties and laws are meant to bind the member-states, not the UN body itself, according to Chesterman. This has resulted in the Security Council not generally being subjected to an international tribunal that might review its actions, although that has happened on occasion (2008: 29). Chesterman views the international rule of law, as established by the UN, as being more hortatory than declaratory. In other words, the rule of law establishes principles more than it establishes rules. For instance, Chesterman states that the United Nations Charter expresses a determination to establish conditions for justice and respect for obligations to manifest. A Declaration of Friendly relations similarly promotes principles, stating that its focus is on promoting the rule of law among nations. Chesterman states that, because the UN focuses upon principles, and that the judicial institutions established by the UN, including the International Court of Justice, are marked by voluntary jurisdiction, whether the international community is governed by laws is in question (2008: 34). Goldsmith and Levinson (2009) also have expounded upon international law. They state that international rules are created by treaties and customary international law (CIL). Both of these – treaties and CIL – are limited by the uncertainty of international legal norms. This is especially true with CIL, as there is not a clear rule of recognition with CIL. The sources of CIL are diverse, and range from treaties, nonbinding statements and resolutions, moral and ethical claims and writing of jurists. These sources also point in different directions and there is little hope of reconciling them, according to Goldsmith and Levinson (2009: p. 1804). Likewise, Goldsmith and Levinson state that treaties are imperfect as well, even though they are more recognized than CIL. This is because even the treaties are not subjected to settled rules. Moreover, important treaty obligations might conflict with the UN Charter, and different human rights treaties often contain contradictory rights. Which of the contradictory rights prevails has been a conundrum for courts, legal institutions and scholars, and there has been much disagreement between these bodies over this issue. This is also the case with World Trade Organization obligations (2009: 1805). Therefore, Goldsmith and Levinson state that, since there is little consensus on how to reconcile contradictory and overlapping obligations, there is a “proliferation of contradictory norms” (2009: 1805). Courts have to sort these issues out, and there are multiple courts within the international system, and each of these courts have a narrow and segmented jurisdiction, which complicates matters still further. As with the treaties and CIL themselves, these courts also make rulings which contradict one another and overlap, and there are certain areas, such as immigration and human rights, over which there is little or no court authority. This even includes the International Court of Justice, as it has limited jurisdiction and no stare decisis. Other courts, such as the European Court of Justice and international bodies, such as Human Rights Committee, have only partial jurisdiction and no mechanisms which coordinate their actions (2009: 1807). These scholars contend that the rule of law is more principle based than rule based, perhaps because sovereignty complicates the enforcement of rules. Moreover, the treaties form a patchwork of often inherently conflictual provisions which are difficult to reconcile, and no doubt confusing to the states who try to implement the different provisions. International courts are not necessarily a help, either, as they have limited jurisdiction, do not establish stare decisis precedent for other courts to follow, and make conflicting resolutions on the international rules which are not reconciled on any kind of consistent level. Because of this, establishing and enforcing the international rule of law is difficult for the United Nations to do. The Responsibility to Protect All of that said, there is a principle which has formed a basis for state intervention, which can be qualified as a rule of law that UN member states follows, and that is a doctrine known as The Responsibility to Protect. This doctrine is perhaps largely responsible for establishing global order and stability around the world, at least in theory. The Responsibility to Protect doctrine is a doctrine which originated in 2000, with the International Commission on Intervention and State Sovereignty (ICISS), which was commissioned by the Canadian government. In response to the atrocities in Rwanda, Somalia, Srebrenica and East Timor during the 1990s, the ICISS was commissioned to examine the relationship between human rights, intervention and state sovereignty (Brown, 2008, p. 8). The Responsibility to Protect (R2P) doctrine originated from this report (Bellamy & Williams, 2005, p. 28). The R2P was different from humanitarian intervention in the traditional sense, as R2P was grounded in the perspective of those who need help (Stahn, 2007, p. 103). R2P may only be invoked with the targeted state is unwilling or unable to protect its citizens, and the intervention must be accompanied by efforts are prevention and oost-conflict building (Bellamy & Williams, 2005, p. 28). The nation states were, under R2P, enabled as moral agents (Chandler, 2004, p. 62), and R2P may serve as a catalyst for action (Luck, 2010, p. 357). After this report, the United Nations prepared their own report in 2004, which stated that, since genocide threatens all nations, it would not be tolerated. The language shifted from the right to intervene, which was fraught with controversy, as it conjured scenarios where powerful nations invaded weaker nations for pretextual reasons, to the responsibility to protect (United Nations General Assembly, p. 56). This language shift accomplished two things. The first is that the emphasis shifted from the right of a country to intervene to the responsibility to protect, therefore the focus is more on the well-being of the targeted nations' citizens and less on the right of the intervening country. The other accomplishment was to promote the right of the country to intervene from a right to a responsibility, which means that countries are more exhorted to actually intervene when necessary than before. R2P is only invoked, however, in cases of genocide, large-scale killing, ethnic cleansing and serious violations of international humanitarian law (United Nations General Assembly, p. 57). R2P was further limited, in that it must be authorized by the UN Security Council, and the Council may only authorize it under certain conditions. These conditions include that the target country is unwilling or unable to act, and that a certain threshold has been met (Bellamy, 2006, “Preventing Future Kosovos,” p. 4). This threshold is that the country has experienced a large loss of life which has resulted from deliberate state action or that there is large scale ethnic cleansing carried out by expulsion, terror or rape (Bellamy, 2009, p. 56). The other limitations are that the doctrine must be carried out by multi-lateral operations, that the nations involved must have the intention to halt human suffering, and that the victims and region support the intervention. Moreover, the doctrine may only be invoked as a last resort, after the failure of non-military options. There must also be a reasonable chance of success (Bellamy, 2009, p. 56). The Effect of R2P The R2P doctrine has had limited success, in part because of its inconsistent use. Kofi Annan used the doctrine as part of a diplomatic strategy in Kenya, and Russia used it to justify unilateral action in Georgia. The Russian action was widely criticized and rejected because Russia had a lack of evidence of genocide, therefore the international community suspected subterfuge on this issue (Bellamy, 2010, p. 148). The limits of R2P have been tested by Russia in their claim of Georgian ethnic cleansing, as the international community roundly rejected Russia's action, and stated that Russia's response to the Georgian actions of launching assaults against people in the South Ossetia region was disproportionate. (Bellamy, 2010, p. 151). Myanmar, in which the military regime refused humanitarian aid to suffering people after a devastating cyclone, and refused needed supplies and medical assistance, was another case was R2P was rejected by the international community, despite the urging of France for the doctrine to apply. That said, diplomacy eventually forced the Myanmar regime to relent, under international pressure, and there was some speculation that the threat of R2P was enough to make this happen (Bellamy, 2010, p. 152). Case Study: Sri Lanka Sri Lanka has been in conflict for the better part of the last 30 years, and over 80,000 lives have been lost during this time, and another one million Tamils have been displaced, while another one million Tamils have voluntarily migrated into India and Western nations, as a conflict rages between the Liberation Tigers of Tamil Eelam and the government. Rajakulendran (2007) states that, despite the suffering and evidence that genocide was being carried out against the Tamil during the period of 1982 to 2000, there was not intervention by the United Nations, and that nobody was even talking about the atrocities committed there. Rajakulendran states that, according to a 2007 Security Council report, insufficient attempts have been made to hold the perpetrators of the conflict responsible, and that there was little progress being made investigating the human rights abuses there. Rajakulendran urged the United Nations to act, stating that the genocide and crimes against humanity gives authority to act and intervene, in the same manner that the intervention has proceeded elsewhere in the world. Rajakulendran also states that the R2P doctrine should take effect in this area, fearing that Sri Lanka would reach the levels of atrocities seen in Darfur, and alleging that Sri Lanka is not able or willing to protect its citizens. However, the UN shelved the intervention approach in Sri Lanka in favor of allowing non-governmental organizations a chance to work on the peace process (Rajakulendran, 2007). However, the Sri Lankan government has resisted attempts to intervene, stating that such intervention interferes with its state sovereignty. Despite the country's history of child abductions, displacement, disappeared persons and genocide, the international community has still failed to use the R2P to intervene on the country, thus far (Kronstadt, 2008). That said, Ofstad (2000) suggests that aid donors to the country adopt a strategy that would enable the peace process, or, at the very least, aid the citizens with humanitarian relief. The aid donors may either follow the traditional development agency approach, which states that aid should be given as if there was not a war going on in the country. Or, they may follow the human rights approach, in which aid is channeled through non-governmental organizations and institutions. The comprehensive approach was also advocated, and this where countries work with the government to provide aid and humanitarian programs which aid the displaced persons and affected civilians. The proactive approach means that the aid programs are supporting a movement towards peace. This creates active support for programs and policies such as education and language reforms, human rights and peace organizations, judicial reforms, and rehabilitation and development of conflict areas (Ofstad, 2000, p. 5). Sri Lanka demonstrates the limits of R2P as an international rule of law which protects and promotes stability and order throughout the world. While the R2P doctrine is invoked in limited circumstances, it would seem that Sri Lanka should qualify for intervention, due to the widespread atrocities, including genocide, displacement, and child abductions. Yet, for many years, the United Nations was not even talking about the country, let alone focusing on the country as a target for intervention. It seems that this has changed, but the focus is still on diplomatic options, as opposed to intervention. While this is difficult to understand, it does show how arbitrary a rule such as R2P is. R2P gives countries the responsibility to protect, and the Sri Lankan government has shown that it is unwilling or unable to protect its citizens, so it seems that R2P should be invoked here. That said, one of the tenets of R2P is that all other non- military options have been exhausted, and the peace process has only recently started on the international level. This would presumably give justification for allowing diplomacy to work in the country and would preclude R2P until diplomacy fails. Still, this shows the limits of the rule of law as implemented by the UN. Conclusion The international rule of law is one that is severely limited by a variety of factors. State sovereignty is one of the major factors, and this means that every state has the right to make their own rules and use the resources in an independent way. Another major problem is that there are overlapping and contradictory edicts in the treaties which govern international law, and the courts who govern international law also have limited jurisdiction, and make overlapping and contradictory rulings. Moreover, these courts do not establish stare decisis, which means that the precedents set do not have to be followed by other courts. This means that the treaties and CIL which form the basis for international law are limited in scope, and confusing for countries to follow. R2P, which is considered to be international rule of law, also is limited and has been applied inconsistently. A case in point in Sri Lanka, which has been in conflict for 30 years, yet there has not been intervention in the country. This case study shows the limits of R2P, and the limits of the UN goal for a rule of law to encompass international relations and promote stability and order. Sources Used Axworthy, L & Rock, A. (2009). “R2P: A New and Unfinished Agenda,” Global Responsibility to Protect, pp. 54-69. Bellamy, A. (2006). “Whither the Responsibility to Protect?” Ethics and International Affairs, 20(2): 143-169. Bellamy, A. (2006). “Preventing 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). “The Responsibility to Protect and the Problem of Military Intervention.” International Affairs, 84(4): 615-639. Bellamy, A. (2009). “Realizing the Responsibility to Protect.” International Studies Perspectives, 10: 111-128. Bellamy, A. (2010). “The 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). “Reinventing 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). “The Responsibility to Protect? Imposing the Liberal Peace,” International Peacekeeping, 11(1): 59-81. Charlesworth, H. (2010). “Feminist 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 Cooper, R.H. (2009). Responsibility to Protect. New York: Palgrave Press. De Waal, A. (2007). “Darfur and the Failure of the Responsibility to Protect,” Available at: http://www.reliefweb.int/rw/rwb.nsf/db900sid/AMMF- 78AGCM?OpenDocument Gheciu, A. & Welsh, J. (2009). “The Imperative to Rebuild.” Available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1747-7093.2009.00203.x/pdf Gready, P. (2006). Fighting for Human Rights. London: Routledge. ICISS. “The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty.” Available at: http://www.iciss.ca/pdf/Commission-Report.pdf ICISS (2001) . “The Responsibility to Protect: Research, Bibliography and Background.” Available at: http://www.idrc.ca/openebooks/963-1/ Luck, E.C. (2010). “The Responsibility to Protect: Growing Pains or Early Promise?” Ethics and International Affairs, 24(4): 349-365. Shukla, K. “The International Community’s Responsibility to Protect,” Available at: http://www.fmreview.org/FMRpdfs/FMR30/7-9.pdf Stahn, C. (2007). “Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?” The American Journal of International Law, 101(1): 99-120. United Nations General Assembly (2004). “Follow 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. Williams, P. & Bellamy, A. (2005). “The Responsibility to Protect and the Crisis in Darfur,” Security Dialogue, 36(1): 27-47. Read More