Public International Law - Literature review Example

Public International Law Public International Law may be defined as a concept to grant rights and responsibilities on intergovernmental internationalorganizations and even individuals. To qualify as a subject a state had to be sovereign i.e. it needed a territory, a population, a government and the ability to hold in political or foreign relations. For example, the United Nations is an international organization that has the ability to hold in treaty relations administered by and binding under international law with states and other international organizations. Individual responsibility under international law is significant in the circumstance of prosecuting war criminals and the advance of international human rights which means the basic rights and freedoms, to which all humans are entitled, often held to include the right to live and liberty, freedom of thought and expression, and equality before the law Article 38(1) of the ICJ Statute specifies the sources of international law and states that international law has its origin from international custom, international conventions or treaties, and general principles of law. Customary international law is defined as a general practice of law under article 38(1) (b). The criticism against customary international law is its subjective nature and its unpredictability. States vary greatly in their opinions and understandings of issues regarding international law. Thus, it is almost impossible to find enough consistency among states to draw a customary international rule from general practice. Conventional international law includes international agreements and legislative treaties that establish rules specifically recognized by consenting states. Only states that are parties to a treaty are bound by it. The most important treaties in this regard are the Genocide Convention, the Vienna conventions, and the provisions of the U.N. Charter (Answers.com, 2006). As Rosalyn Higgins stated, international law is a normative system "harnessed to the achievement of common values - values that speak to us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialized or developing". The requirement for international law arises from the need to ensure a process that regulates challenging demands and establishes the framework for expected and agreed society behaviour. Public international law controls the relationship between states and international bodies (Wikipedia, IL, 2006). This essay mainly intended to evaluate UN Articles and Charters, International Court of Justice, in relation to UN the Security Council. Before going into details, it is necessary to know about the formation of the United Nations, its purpose and goal. The United Nations was founded in 1945 by 51 states and it is an international organisation of governments facilitating co-operation in international law, international security, economic development, and social justice. As of 2006 there are 191 United Nations member states. The organisation is divided into administrative bodies like the UN General Assembly, UN Security Council, UN Economic and Social Council, UN Trusteeship Council, UN Secretariat, and the International Court of Justice. The organisation also have bodies dealing with the governance of all other UN system agencies, such as the WHO and UNICEF. The UN was organized after the end of World War II by the successful world powers to prevent clash between nations and avoid future wars, by fostering perfect collective security. But the organization’s structure suffers in some ways from the circumstances of its founding. Because the five main winners of World War II, are the Security Council permanent members with veto power: The United States of America, Russia, the United Kingdom, France, and the Peoples Republic of China (Wikipedia, UN, 2006). The United Nations is governed by its constitution. A constitution is a system, which establishes the rules and principles by which an organization is administered. This also called as Charter of the United Nations. The Charter consists of a ‘preamble’ and a series of articles divided into chapters. The ‘Preamble to the United Nations Charter’ is the opening of the United Nations Charter. Chapter I points out the principles of the United Nations, including the important necessities of the maintenance of international peace and security. Chapter II defines the standard for membership in the United Nations. Chapters III-XV explains the organs and institutions of the UN and their respective powers. Chapters XVI and XVII discusses arrangements for incorporating the UN with recognized international law. Chapters XVIII and XIX provide for amendment and approval of the Charter. The vital chapters are those dealing with the enforcement powers of UN bodies: Chapter VI explains the Security Councils power to investigate and reconcile disagreement; Chapter VII explains the Security Councils power to authorize monetary, diplomatic, and military sanctions, as well as the use of military force, to resolve disagreements; Chapters IX and X explain the UNs powers for economic and social support, and the Economic and Social Council that manages these powers; Chapters XII and XIII describe the Trusteeship Council, which oversee decolonization; Chapters XIV and XV set up the powers of the International Court of Justice and the United Nations Secretariat, respectively (Wikipedia, UNC, 2006). International Court of Justice (ICJ) is the highest judicial body in the UN Organization. The ICJ settles disputes between states, which are willing to stand by the Courts decision before their case is heard. Here, particular importance is given to the relationship between the ICJ and the Security Council. Security Council is the most powerful body among the UN organs. It is suggested that the ICJ should have the power of judicial review over the Security Councils actions to make sure that they are reliable with the UN Charter and other instruments of international law. Chapter XIV Articles 92 to 96 empowers the International Court of Justice (GPF, N.D.). The ICJ is a permanent international court located in The Hague, Netherlands, and it is the most important judicial organ of the United Nations. It consists of fifteen judges, each from a different state. The judges are elected by the U.N. General Assembly and the U.N. Security Council. The ICJ has authority only over states that have consented to it; hence the court cannot hear a dispute between two or more state parties when one of the parties has not accepted its jurisdiction. The judgment of the ICJ is binding and cannot be appealed (arts. 59, 60) once the parties have authorized to its jurisdiction and the court has delivered a decision. Non-compliance of judgment can be appealed to the UN Security Council, which may authorize other measures by which the judgment shall be enforced. A decision by the Security Council to enforce compliance with a judgment delivered by the court is subject to the veto power of permanent members and hence depends on the members willingness to resort to enforcement measures and also to support the original judgment (Answers.com, 2006). Some of cases successfully settled by the International Court of Justice: The ICJ decided that the oil-rich Bakassi Peninsula belongs to Cameroon. Both countries agreed to accept the ruling. The legal case was filed in 1994, when Cameroon petitioned the court to decide the matter. The two countries had troops stationed in the area, and clashes were frequent. Even though Nigeria initially disputed the courts authority, the leaders of the two countries, President Olusegun Obasanjo of Nigeria and President Paul Biya of Cameroon, promised during a meeting in Paris to accept decision of the ICJ. Even though Cameroon won the case it did not get all it was looking for. The court awarded other uncertain packages along the border to Nigeria and ordered each country to pull troops from land handed over to the other. The court rejected Cameroons requests for compensation from Nigeria for its long occupation of the peninsula, saying that giving the land to Cameroon resolved the matter (GPF, N.D.). Another case which was settled by International Court of Justice, after almost ten years of court case, gave its judgment on the territorial dispute involving Bahrain and Qatar. The two Gulf States have now resolved their border conflict. A 17-member tribunal at the International Court of Justice in Hague on 16 March 2001 Friday awarded the Huwar islands, including the Dibal and Jarada shoals, claimed by Qatar to Bahrain; and the Zubarah town and land strip in northern Qatar, claimed by Bahrain, to Qatar (Allen, 2001). An example the International Court of Justice could not settle was the dispute between Congo and Rwanda. The World Court on July, 10 2002, rejected a request by Congo to immediately order Rwanda to withdraw its forces from Congolese territory, saying it had no legal basis to intervene since the Rwanda challenged the court’s jurisdiction. The bench of international judges rejected the request for emergency provisional measures by a vote of 14-2. Rwandas application to dismiss the case entirely was rejected by a 15-1 vote. This judgment indicates the weakness of the ICJ to handle the cases of the countries which are not accepting the jurisdiction of the court (Deutsch, 2002). The Security Council is the United Nations most powerful body. The Security Council assigned with the responsibility for the maintenance of international peace and security. The Council consists of five powerful countries as permanent members and ten other member states, elected for two-year terms. Recently the Council has increased its activity and it has continuous sessions to deal with various issues. It dispatches military operations, enforces economic sanctions, consents arms inspections, deploys human rights and election monitors etc. The United Nations has helped stop many outbreaks of international aggression from growing into wider conflicts. It has opened the way to confer settlements through its service as a centre of debate and negotiation and through UN- supported fact-finding missions, mediators, and treaty observers. UN Peacekeeping forces, comprised of troops and equipment supplied by member nations have usually been able to prevent conflict. The five permanent members of the Security Council have the Veto power. Decisions in the 15-member Security Council on all important matters require the affirmative votes of nine members. A negative vote—a veto—by a permanent member prevents adoption of a proposal, even if it has received the required number of affirmative votes (Wikipedia, UNSC, 2006). The Security Council of UN has got absolute power under Chapter Six and Seven of the Charter. The Security Council may investigate any dispute or any situation which might lead to international friction or give rise to a dispute. The Council may recommend appropriate procedures or methods of adjustment if it determines that the situation might endanger international peace and security. These recommendations are not binding on UN members. Under Chapter Seven, the Council has broader power to decide what measures are to be taken in situations involving threats to the peace, violation of the peace, or acts of violence. In such situations, the Council is not limited to recommendations but may take action, including the use of armed force to maintain or re-establish international peace and security. For example, the basis for UN armed action in Korea in 1950 during the Korean War and the use of coalition forces in Iraq and Kuwait in 1991. Decisions taken under Chapter Seven, such as economic sanctions, are binding on UN members. UN Charter, which gives the Security Council the power to: Investigate any situation threatening international peace; Recommend procedures for peaceful resolution of a dispute; Call upon other member nations to completely or partially interrupt economic relations as well as sea, air, postal, and radio communications, or to sever diplomatic relations; and Enforce its decisions militarily, if necessary. Mohammed Bedjaoui, President of the World Court in his book writes that the Security Council has understood its powers as being above the law -- that is beyond any system of legal limits. Whatever the Security Council does is legal. Astonishing as this may seem to most people Bedjaoui makes it absolutely clear that the Security Council rejects any legal limits on its powers. He makes his point clear by quoting from the book ‘War or Peace’ (1950) written by US Secretary of State John Foster Dull "The Security Council is not a body that merely enforces agreed law. It is a law unto itself." Dulles goes on to say, "No principles of law are laid down to guide it; it can decide in accordance with what it thinks is expedient." (GPF, 1996). In the words of James Madison the 4th President of the United States of America ‘the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed or elective may justly be pronounced the very definition of tyranny.’ (Talk politics…, N.D.). It is necessary that the Security Council should be allowed to operate with respect of provision of the UN Charter and the rules and principles of International law. The issue has debated at the time of founding of the UN and raised many arguments. Since the Security Council plays a much more active role than in the past, its reform is more urgent than ever. It must be based on ideas for more democratic global future, not obsolete concepts like permanency and great power oligarchies. In the midst of the present political uproar, it is time to take a more calm and long-term view the kind of world people looking for and the right way to reach there (Paul and Nahory, 2005). It is also a necessary to strengthen the International Court of Justice by giving more judicial power to award judgement on international disputes and matters brought to the court by countries or international organizations. References Allen, R. (2001) Court Ruling on Gulf Border Row, Financial Times, March 16 2001. online]. Global Policy Forum, Available from: [10 May 2006]. Answers.com, (2006) International law [online]. Answers Corporation, Available from: [7 May 2006]. Deutsch, A. (2002) World Court Rejects Congo Request to Intervene Against Rwanda Associated Press, July 10, 2002 [online]. Global Policy Forum, Available from: < http://www.globalpolicy.org/wldcourt/screview.htm> [11 May 2006]. GPF, (N.D.). The International Court of Justice [online]. Global Policy Forum, Available from: < http://www.globalpolicy.org/intljustice/icj/wdctindx.htm> [6 May 2006]. GPF, (1996) The Security Council and the Rule of Law [online]. Global Policy Forum, Available from: < http://www.globalpolicy.org/wldcourt/screview.htm> [11 May 2006]. Paul, J. and Nahory, C. (2005) Theses Towards a Democratic Reform of the UN Security Council [online]. Global Policy Forum, Available from: [10 May 2006]. Talk politics, (N.D.) The very Definition of Tyranny, [online]. Available from: [7 May 2006]. Wikipedia, IL (2006) International law [online]. Wikimedia Foundation, Inc. Available from: [6 May 2006]. Wikipedia, UN (2006) United Nations [online]. Wikimedia Foundation, Inc. Available from: [8 May 2006]. Wikipedia, UNC, (2006) United Nations Charter [online]. Wikimedia Foundation, Inc. Available from: [7 May 2006]. Wikipedia, UNSC, (2006) United Nations Security Council [online]. Wikimedia Foundation, Inc. Available from: < http://www.globalpolicy.org/security/index.htm> [6 May 2006]. Read More