Principles of International Law - Research Paper Example

Principles of International Law Abstract The current global environment is dominated by acts of aggression, use of armed forces, hostility, wide spread epidemics, poverty, and other grave issues demanding immediate humanitarian relief and the framing of laws to prevent random acts of mindless violence such as those witnessed in the recent decades. A collective effort at an international level can make a significant difference in seeking peaceful coexistence among all the nation states worldwide and ensure the health and well being of the global citizens. Such efforts need to be channelled through proper laws. International laws help in achieving these objectives by ensuring that the member states adhere to the strict norms laid down by it, and take prompt corrective action against those found guilty of violating the same. This paper on international law, discusses the meaning, scope and significance of international law, the laws related to human rights and humanitarian law, and the general consequences of breach of international law. Introduction Law has invariably emerged as a matter of prime significance ever since the evolution of mankind from the cave age to the computer age. Established primarily to sustain peace and well being in the society, the international law has achieved exalted status and undergone tremendous transformation during the past couple of centuries. It’s significance and contribution in preventing the cause of humanity – be it through prevention of armed conflicts or assisting the needy through international humanitarian networks, and ensuring safety of the war victims to the fair treatment of prisoners of war; cannot be denied. The basic underlying idea behind any law, in any society regardless of its size, is the upholding of law and order, by limiting chaos and destruction and promoting peaceful coexistence among the global citizens, which is achieved by laying down strict and formal rules regarding permissible and non permissible activities within any community. International law has progressed by leaps and bounds and in accordance with the changing international environment – political, economic as well as environmental. On one hand it forbids initiation of policies by member countries which are considered regressive and in general has a tendency to put humanity at risk and on the other hand, it allows the establishment of rules and regulations, rights and duties, to punish those who violate the law. Given the present international environment and the magnitude of critical issues such as global warming, wars, spread of deadly diseases such as HIV, and the worsening plight of people in under-developed economies the proper development and implementation of international law is inevitable to reform those in need and sustain symbiotic relationships between various countries on the globe. This paper on international law aims to study, evaluate and assess the various legal aspects associated with war, human rights and the consequences and implications of violation of such laws. Thesis Statement International society is anarchical in nature and ruled by power held by individual countries over others and a common international law can help in safeguarding the excessive and at times unnecessary use of might by such powerful countries over the weaker ones by ensuring that law rather than power governs their actions. Key Objectives: The fundamental objectives of this paper are: To evaluate, examine and understand the international law as it relates to human rights To assess the implications of international law with respect to war- including the treatment of prisoners of wars, civilians and the protection afforded to them for fair justice and To understand the implications or consequences in the event of breach of international law 1.1. International Law: Overview International law is a framework of rules which are established to govern the international legal relations among different countries across the globe and mediate in their economic, social, cultural or political issues concerning them (Bozcek, 2005)1. The adoption of the Universal Declaration of Human Rights by the United Nations General Assembly in the year 1949 and the subsequent development of conventions, covenants and legal policies laid the foundation of international law (O’Brien, 20012; Butler, 20063). The laws framed thus, are aimed at safeguarding the rights of individuals within their own countries. International law is unique and distinct from the national laws in the sense that it tends to uphold the sovereignty of states, since it is based on the foundation of the principles of equality of independence of all its member states. The international court of justice of the United Nations holds supreme significance and there is no central legislature or an involuntary and obligatory jurisdiction. Although the international laws are framed for ensuring conformity to legal rules, the states are afforded complete freedom of authority in matters which are internal to their communities (Kreijen, 20024; Anghie, 20075). It has often been observed that at times, such adherence to the principle of sovereignty by the international law has created roadblocks in the effective resolution of conflicts. Owing to such setbacks the concept of sovereignty has undergone commendable transformation making the application of the rules prescribed by the UN charter relatively more flexible. States, globally, have increasingly acknowledged the significance of their contribution, and have grown aware of their responsibilities towards the global community and their citizens over and above their responsibilities towards their own citizen. Such growing awareness among the States has contributed to the gradual expansion of the scope of international law as it pertains to the global community. It has further led to the development and implementation of significant progressive global policies aimed at protecting the global as well as national boundaries. International regulations governing the environment, humanitarian causes, prevention of spread of deadly diseases etc have been on the rise, and the society is at the receiving end of all these benefits. Major issues such as the rapid spread of epidemics in under developed economies such as Africa, the abuse of human rights, issues related to war victims or civilians etc are now ably handled by and subject to international laws, and any violation or discrepancy in adhering to such rules is subject to severe punishment. 1.2. Foundations of International law According to article 38 (1) of the Statute of the International Court of Justice, there are certain key sources of law. They are: International Treaties: which are established and subsequently and expressly acknowledged by the member States International Customs: which comprise of general customs accepted by the States such as those related to protection of human rights and General principles of law which include the principle of equity, rules framed with reference to liability in the event of damages, unjust enrichment, right of passage over territories etc. among others (Malone, 20086) These treaties, customs as well as general principles together illustrate a social consensus with regard to the foundations of international rules. Treaties refer to the international legal obligations which are undertaken by States through negotiation, adoption and authentication of rules and policies and can be categorized as unilateral or bi-lateral. They are formed to enforce binding legal obligations, rights, duties and expectations between the parties concerned. The treaties may be formed with relation to labour, employment, human rights, warfare, peace etc. Furthermore, the treaties are binding only on the member States or parties who have signed or agreed to sign them. The international law however is binding on all the non-member states by virtue of the customary law which is one of the basic sources or foundations of international law. The international custom or customary laws are applicable and binding on all non-member states over and above those states which are parties to the treaties framed under the international law. This law holds supreme significance on the international affairs especially since it holds the power or authority to enforce policies which ensure strict adherence to customary laws on the non-member states. This is especially useful in cases of controversial issues related to non-member states who are not parties to the international treaties (Malone, 2008). In brief, the international customs or the customary law implies the customary adherence of non member states to the international regulations related to a range of issues such as war, human rights, etc. It tends to ensure uniformity and consistency in policies implemented across the globe and, in the process, ensures the development and well being of the global citizens. Thus, a customary practice followed by the states and put into practice on a regular basis and consistently followed, it is known to have become an integral part of rules governing the customary law. General principles which form one of the basic sources of international law are commonly applied rules which are often followed by the citizens of various states and are commonly adhered to by all legal systems. According to Malone (2008) A general principle of law is the one which is "recognized by civilized nations" and "is so fundamental that it is a basic tenet in virtually every major legal system" (Pp. 26). The general principles are generally known to be developed with a view to bridge the gaps left by treaties and customary laws. It encompasses a wider area in terms of approaching and addressing global issues and ensuring strict adherence to the international law in order to sustain its main aims which includes upholding the principle of good faith, promoting protection of human rights, and ensuring peace and safety of the global citizens. Apart from these basic causes, the general principles can also be extended to larger and more crucial issues such as those related to international judicial administration or other similar procedural matters (Dixon, 20077). Ch- 2: International Law related to Human rights Decades after the establishment of the United Nations, the international laws, related to the well being of global citizens have undergone significant transformation. There is a noticeable change in the global environment which in the past decades has witnessed excessive use of armed forces, for instance during the Iraq War and the entire episode that followed in the name of War on terror initiated by the U.S.; the uproar among the human rights activists across the globe related to the systematic and unrelenting degradation of human rights during such wars and the inhuman treatment meted out to both the civilians as well as prisoners of war; as well as the alarming trend of the spread of the HIV epidemic among the poor and under developed countries such as Africa. Issues such as these are a cause of grave concern not only for the local governments but also for the international community at large. The rules contained in the international law with respect to protection of human rights has played a significant role in safeguarding the well being of individuals, globally, by ensuring increased participation of States through membership in the UN. However, despite such efforts, violence and hostility within and between states continue to thrive. This has raised several critical issues with respect to the protection of human rights especially in conflict gripped areas such as Afghanistan, The Democratic Republic of Congo, the on-going conflict in Gaza etc. Modern warfare has become all the more deadlier and entails the use of destructive weapons both physical as well as psychological, thus increasingly disrupting peace by targeting innocent civilians. The conflict in Gaza is the most recent example of gross violation of human rights. Although the adherence to human rights are often pledged, they are highly fragile and are broken more often, leading to large scale devastation (Amnesty, 20108). This is evident from the recent incident where Israeli commandos stormed a convoy comprising of aid workers and mercilessly slaughtered several aboard the ship (The Mirror, 20109). This shows the manner in which the basic civil rights of individuals are blatantly ignored and silenced, giving rise to mass movements of civilians in seek of refuge in safer places, and as a measure to prevent risks associated with increased threats to their lives and property. Incidents such as these further tend to fuel the need for implementation of robust international laws which may prevent the repetitive occurrence of such ghastly crimes against humanity. The International Human Rights Law and the International Humanitarian Law The international human rights law (IHRL) as well as the international humanitarian law (IHL) are framed by the UN to safeguard the lives of individuals across the globe, and ensure their safety and well being. Although the basic premises of both these laws are more or less the same, there is a basic and significant difference between the two. For instance, both these laws are aimed at protecting the safety of human life, prevent the torture or inhuman treatment of individuals, ensure basic rights to them based on rules which are common to the criminal justice system, prevent and oppose discrimination on any basis, regulate rules related to provision of food, shelter and health to women and children etc. However, the IHL is much broader in scope as compared to the IHRL, since it deals with even those aspects which are usually considered beyond the purview of IHRL for instance, laws governing the conduct of hostilities, treatment of combatants or prisoners of war, the protection available to them under the Red Cross or other similar humanitarian agencies etc (Shaw, 200310; Martin & Schnalby 200611). The IHL comprises of a combination of various rules and policies framed to resolve human rights issues arising out of acts of hostilities, violence or armed conflicts within or beyond international boundaries. It seeks to safeguard the lives and property of the civilians in the event of a conflict, and ensure fair and equitable treatment to the combatants and prisoners of war. It also lays down various restrictions with regard to the use of aggression or military might in the event of a conflict and thus diffuse tension among the warring states. The IHRL on the other hand refers to international laws which are framed for regulating various aspects of life such as freedom of press, the right to vote, hold strikes etc. It comprises of a set of international rules which are established and implemented via treaties or customary laws which acts as a foundation for the individuals to claim or demand certain reactions or rights from the government. Human rights refer to the basic rights which must be afforded to all individuals as a simple extension of being human and must not be dependent on any treaty or customs which is otherwise required in certain critical judicial issues (Steiner et al., 200812). Applicability The humanitarian intervention is sought in cases of armed conflicts both within and beyond the geographical boundaries of nation states. Thus it extends to all types of conflicts national or international. International conflicts comprises of wars or use of armed forces against other nations while non-international conflicts refer to use of armed forces within the geographical boundaries of nations states for instance the use of armed forces by a state within its boundaries against the rebels or illegal insurgents. The laws regarding protection of human rights apply in cases of both IHL as well as IHRL and no exception is permitted in either case regarding exemption. The IHRL can be applied at all times, i.e. regardless of the state of the nations – at war or during ceasefire. IHRL does, in certain situations, allow the government of the concerned state to derogate from some specific rights especially during public emergency which may have the probability of endangering the lives of citizens. Article 27 of the American Convention on Human Rights Law states that: “in time of war, public danger, or other emergency that threatens the independence or security of a State party, it may take measures derogating from its obligations under the Convention to the extent and for the period of time strictly required by the existences of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on grounds of race, colour, sex ..."” (Pp. 26113) It must also be noted that the derogations permitted are only till the extent of the perceived damage or crisis on hand, and must not entail any discriminatory policies which may tend to violate or conflict other international laws. Although certain exceptions are available during times of national crisis, certain exceptions are never permissible by the international law under any circumstances. These include: the right to live, the right to treat human beings with dignity, prevent the use of torture – physical or otherwise, inhuman treatment of individuals as a means of punishment, and slavery among several others. CH-3: International Law related to war Wars have been an integral part of human history, and have been fought for various reasons ranging from those fought for freedom from feudalism, to religious wars, to unification of territories, or for establishing the supremacy of religion. Regardless of the cause, or the justification that accompanies it, the large scale destruction of human lives and property is undeniable. Hence it is of utmost significance to develop, establish, implement and ensure the applicability of international laws which seek the protection of civilians and the community at large during times of war or armed hostilities between the warring states. Such protection of civilians and other rules governing the conduct of war, is laid down in the laws of war which is a framework established for laying down rules related to war, the justifications given for engaging in armed hostilities ‘jus ad bellum’ as well as the maximum permissible limits imposed on the warring states which define the wartime conduct i.e. ‘jus in bello’ (Verzijl, 199814). The law of war is an inherent aspect of public international law and is distinct from those laws which are framed by independent nation states. It is distinct from the local laws of nations which are applicable to their particular nation during times of conflict. The law of war is international in scope and is same for all the nation states. It comprises of rules which are highly complex and display high vulnerability to varied interpretations. The laws of war comprises of various rules and regulations which are binding on all the nation states across the globe and is primarily based on two key principles: ‘Jus ad bellum’ and ‘Jus in bello’. These principles lay down rules regarding issues ranging from the waging of or declaration of war to the conduct permissible during or post the commencement of such wars. The jus ad bellum, which conferred the nation states with an unlimited and unrestricted right to wage a war against each other, has been significantly restricted in recent times. Under the international law, only those wars which are considered as 'just' would be allowed and otherwise, the nation states cannot be permitted to wage a war. The concept of jus ad bellum which refers to the justification of war was subsequently debated and protested vehemently by various nations regarding the precise definition of the term 'just'. Eventually the right to wage aggressive war was completely abolished by the United Nations Charter under the modern international law, which no longer permits the states to wage war although Article 51 of the Charter of the United Nations has retained the right to a war in case of self-defence (Delupis, 200015). With the abolition of the principle of jus ad bellum i.e. the right to war, the applicability of the principle of jus in bello, i.e. the rules of war hold little or no significance. However this does not hold true in the present scenario where wars are invariably waged and many international rules are constantly being compromised and violated at wish by the warring nations. Thus in order to achieve the safety of the larger community, properly defined and well framed rules of law or codes of conduct applicable during or after the commencement of war is must. Rules such as declaration of war, surrender, treatment of combatants or prisoners of war, necessity and extend of use of military might, prohibition of certain lethal weapons which are highly likely to cause large scale destruction to civilians are framed and implemented by the international law of war. These rules were laid down by the Geneva conventions which are discussed in brief below: The Geneva Convention The International Criminal Law Conventions held in Geneva in August, 1949 led to the formation of four key conventions which were aimed at systematically codifying the customary laws of war as applicable on an international level. The breach of either or all of these conventions leads to the breach of international law and the violators are subsequently considered to be guilty of violating the law and booked for the same (Werle, 200516). These conventions are related to the amelioration of the wounded and sick in armed forces and field; amelioration of the condition of wounded, sick and shipwrecked members of the armed forces at sea; treatment of prisoners of war; and protection of civilians in time of war. CH. 4: Breach of International Law: Consequences and Implications The non compliance to the rules laid down by international laws is regarded as violation or breach of law and attracts liability for punishment to those held guilty of such violation. Although the international law is binding on all the nation states through treaties, customary laws or by virtue of general principles the sovereignty of states which is one of the basic foundations of the international law allows the states to uphold certain international laws in defence of safeguarding their own national or local laws. Thus in this sense the concept of international law and its applicability and scope are highly intricate matters. If however, any state is found to be violating any international law, or ignore the obligation conferred upon it by virtue of being a party to a treaty, it is known to have committed a breach of international law and would be regarded as an internationally wrongful act, liable of being tried in the international court of justice. The breach of international law at times of conflict may vary depending on the type of violation i.e. specific or deliberate and limited or total violation. Combatants who are held guilty of violating the specific provisions of laws of war are stripped of their right to seek legal protection and are denied the status usually afforded to the prisoners of war and the only remedy available to them is through trial held by a ‘competent tribunal’. The breach of laws related to war affords the aggrieved party, the payment of compensation by those at fault and held liable for such violation. The establishment of such international governing bodies as the International Criminal Court, marks the gradual culmination of the international communities to form just and fair laws at an international level to ensure the well being of the global community. It reinforces the resolve and determination of various countries worldwide to commit to prevent violence and crimes against humanity and pave way for the peaceful coexistence of all nation states. References: Anghie, A., (2007). Imperialism, Soverignty and the Making of International Law, Cambridge University Press, Pp. 148 - 150 Bozcek, B. A., (2005). International Law: A Dictionary, Scarecrow Press, Pp. 20 - 25 Butler, W. E.., (2006). International Law and the International System, BRILL Publication, Pp. 10 - 13 Delupis, I. D., (2000). The Law of War, Cambridge University Press, Pp. 157 - 163 Kreijen, G., (2002). State, Soverignty and International Governance, Oxford University Press, Pp. 116 - 119 Malone, L. A., (2008). International Law, Aspen Publishers, Pp. 25 - 27 Martin, F. F., Schnably, S. J., (2006). International Human Rights and humanitarian law: treaties, cases and analysis, Cambridge University Press, Pp. 1 - 6 O'Brien, J., (2001). International Law, Routledge - Cavendish Publication, Pp. 99 - 103 Shaw, M. N., (2003). International Law, Cambridge University Press, Pp. 1, 42, 65, 88 - 92 Steiner, H. J., Alston, P., Goodman, R., (2008). International Human Rights in Context: Law, Politics, Morals - Text and Materials, Oxford University Press Academie De Droit International de la Haye (2002). The perplexities of modern international law: general course on public international law, Martinus Nijhoff Publishers Verzijl, J. W., (1998). International law in historical perspective: the laws of war, Brill Publication, Pp. 10 - 12 Werle, G., (2005). Principles of international law, Cambridge University Press, Pp. 270 - 281 Read More