The Security Council and ICJ - Essay Example

International law Name: Course: Tutor: Date: International law Introduction International laws are important because it helps citizens of different countries. Both public and private international laws tend to overlap more often. International laws too safeguard the human rights issues that may affect different nations. It is on not only how the government relates with their own citizens, but also how different nations treat their citizens1. International laws are put in place sop that the rights of people can be protected at all times. Customary international laws are common and are essential in addressing the rights of self-defense. The well-known attacks that called for the international laws on the September 11, 2001 attack on US required the application of international law. Most nations especially China, Russia, Israel, and other European nations supported the America’s self-defense response known as Operation Enduring Freedom2. In addition, it will cover the attacks by Israeli to Palestinian in Hamas and Caroline doctrines. The other factors that will be looked are the roles on ICJ, UN Security Council, and what is contained in Article 51 of the UN Charter. Private and public international laws are important in the explanation of International law in relation to right of self-defense. Public international law entails itself with questions of rights between nations and its citizens of different nations3. However, private international law deals with controversies and differences between private people, juridical, or natural person. Customary laws, Caroline doctrines, and UN charter are important laws in the international law4. The Security Council and ICJ The Security Council inked the right of defense for the first time in reaction to the attacks to US by the al-Qaeda. Though the nations can overreact, they have the mandate but they should follow the international laws so that they do not cause more harm to the innocent citizens. The international laws justify the rights of self-defense through the Security Council that was applied by US after the attack. Chapter VII of the United Nation’s Charter states that there is nothing in the present charter that will impair the right of individual or collective self-defense if there is an armed attack against a member of UN5. This happens after the Security Council has taken measures to ensure there is international peace and security. There are measures set by the international laws to member countries to exercise self-defense but it should report to the Security Council first so that it does not affect international peace and security6. Rights of self-defense are recognized by the International laws through the International Court of Justice. However, self-defense is banned only by article 2(4). The self-defense acknowledges the rights by laying down processes, guidelines, and procedures to be followed for specific situations and circumstances if armed attacks do not occur. To some extend, self-defense is allowed in some circumstances even if armed attacks do not occur. It is permitted because it is not every act of violence comprises of an armed attack to person or a nation7. Laws are amended regularly to seal the loopholes that may lead to international peace and security being affected negatively or adversely. The International Court of Justice (ICJ) has been in the forefront to ensure international laws are adhered to especially concerning the right of self-defense among nations. They define what qualifies as an armed attack and how to react to such situations. There are procedures and guidelines to be followed under the guidance of United Nation’s Security Council and International Court of Justice (ICJ). International peace is paramount for the economic, political, and cultural development in the whole world8. The September 11 attacks The fall of the Twin Towers in United States of America made international lawyers to explain the legal terms pertaining international law. It led to the change of attitude and perception on the permissibility to use force and violence in response to terrorists attack on other nations9. The international legal system is facing new constitutional crisis or moments on the way forward because some countries use a lot of force beyond what is set in the international laws. The September 11 attacks on the Twin Towers led to rigorous changes in the international laws on the right of self-defense especially on the term armed attacks. A conference was convened by the United Nations to draft the charter that would guide all the operations and activities involved in right of self-defense of a country or individual person10. A strategy was arrived at due to the emerging threat and international laws allow any country to react or response to any attacks including using force that was envisioned by the UN Charter. International laws emphasized respect to any country or state sovereignty by setting restrictions on the use of force when responding to attacks. There are restrictions and penalties for countries that go beyond the international laws set by the Security Council. All nations should react within the framework where it should retain a traditional right of self-defense against any attacks11. Incase of attacks especially by terrorists using arms such as bombs or any other explosives, they can respond because of the right of anticipatory self-defense. This can happen if there is an imminent threat of the peace and security of the citizens. However, it can be curtailed by the anticipatory self-defense. A right of anticipatory self-defense exists regardless of the limits, which might be a threat to another country12. The UN Charter gives the powers Security Council to preempt itself and determine whether a country to react to any attacks as a right of self-defense. They make decisions so that as they attack the country, they maintain the international peace and security. International laws are agreed upon by those who make up international system but all nations. However, some nations are not part of the international system; hence, international laws do not adequately cover all nations in the world. Most nations comply with the international laws but, many questions and issues have been raised concerning the increasing number human rights violation through various attacks organized against countries in the world13. Due to terrorism that is becoming a threat to the international peace and security, there is uncertainty on the international law because it is shifting by not regulating relations between sovereign countries or nations14. Networks of al Qaeda and alshabab have been given emphasize because action need to be taken for self-defense. The use of military force against those who attack them seems to be against the international laws because they influence the boundaries of international customary laws. United States of America is motivated by its national interests that are only useful to the United Nations General Assembly. They can authorize the International Law Commission (ILC) to accept what will help them to apply the practices of self-defense under international law15. Self-defense may be misinterpreted by many countries if they have personal differences with those nations; hence, may not be appropriate to strictly apply international laws. Forceful reactions and attacks can be the most appropriate so that compliance is ensured16. However, the international community is against the use of forced especially armed attacks except in dire situations that may not be tolerated17. Customary or custom international law There are laws that countries should adhere to especially when reacting to attacks by other nations. Customary or custom international law is important because they are consistent and comply with provincial practices and norms that are accompanied by opinio juris. In addition, there are globally or internationally accepted standards and practices of behavior that all nations and people from different countries should adhere to. They are peremptory norms and practices known as ius cogens or jus cogens. There are treaties also known as codifications contained in conventional agreements that guide in self-defense and what to do18. These restrictions fall under customary international law. There should be instant customary laws that guide on the right of self-defense because it can destabilize international peace and security. In the United Nations Charter (article 13), it mandates the United Nations General Assembly to make decisions, initiate studies, and recommendations that will encourage progressive development and improvement of codifications, treaties, and international laws. This came into being because of the increasing attacks and wars between and among many nations. The UN General Assembly should clearly explain how self-defense should be applied. State practices or consensus can be derived from experts in the legal field so that opinions can be sort on how nations should relate in order to reduce mistrust and acrimony19. International law existed since 13th century but the modern developments were initiated from mid 19th century. The common law (judge-made law of England) and civil laws (codified systems of continental European nations) led to the development of sophisticated legal system. The two world wars occurred because of self-defense. Most countries reacted after being attacked by other nations after their diplomatic relationship went sour. It led to the formation of international bodies such as League of Nations and International Labor Organization20. These bodies were to assist in accelerating the process of establishing the modern international laws. The universal declaration of human rights boosted international law because it ensures that international laws and norms are agreed upon. The development of many conventions was to boost the international laws through consolidation so that world peace and security could be maintained21. The attack of Iraq by the United States of America was because of self-defense due to nuclear development in the country. Customary laws could have been used in response to the attacks by the terrorists. It could endanger the peace and security in the whole world. Many people both locally and international community criticized the war. They claim that international laws were not adhered to but it was out of ill motives of Americans. The international laws are to be interpreted by the United Nations Security Council as by the UN Charter on the way forward22. There are key determinants on international laws on whether the attacks are for the purpose of self-defense or reprisal. International laws do not allow armed reprisal; hence, illegal. This means that, using armed force for the purposes of revenging is not allowed. Self-defense is based on the UN Charter that is contained in article 51. There is nothing that will impair the collective or individual self-defense if a member of the United Nations is armed attacked. The council is to advise on the way forward. The member country is suppose to report immediately to the Security Council so that it can use its responsibility and authority to take action that is deemed necessary to restore international peace and security23. America and Israeli attacks Many people argue that, the American attack on Iraq was due to self-defense and they followed all the necessary procedures provided in the international laws through the Security Council. Article 51 provides United States of America with the full rights to use military force against Iraq and the fight against Osama Bin Laden because of the peace and security, which may deteriorate or affected adversely. The issue was that, the armed attack by use of explosives was within the meaning of article 51; hence, Americans had to react. Other countries such as Israel and Britain provided support and aid to American’s in their self-defense quest24. The Israeli attacks on Hamas should not be interpreted as same with American attack on terrorists25. The civilians should be protected according to the international laws when reacting on self-defense. The multiple deaths of civilians targeted by Israeli forces are against the international laws because such deaths were avoidable if different tactics were used. They could have arrested the people they wanted because they were not armed; hence, less violent option was at their disposal. Article 51 of the UN Charter, Caroline doctrine, and NGO’s International law provides the right to self-defense. The rights to self-defense include combating terror, which are the cornerstone and a pillar of international law. This is contained in the article 51 of the UN Charter and other Security Council treaties and resolutions. In addition, many NGO’s have raised issues that want to delegitimize international law. This concerns the Israel’s self-defensive measures they undertook. NGO’s have been looking for legal bases that will lead to rights being denied to Israel26. The international law has failed to invoke self-defense measures concerning the attacks from actors who are not part of the state to occupy the territory. The NGO’s have been accused of misinterpreting important passages and clauses of international lawmaking it legally incoherent. The human rights watchdog alleges that international law has no evidentiary basis that some nations exercise self-defense27. This is a pretext of punishing their enemies, for example, Israel’s attack on Palestinians was a mere punishment. Most nations especially United States of America and Israel have used self-defense pretext to punish the aggressors without adhering to the rules and regulations set in the international law. This is a loophole that makes the international law inefficient because it does not defend other nations who are targeted with mischief or ill motives28. Even though Iraq was attacked by American troops or forces, excessive force was used on them. Civilians were adversely affected because the war affected the economy negatively; hence, violation of international law. They believe their power and authority in the world exceeds that of the international law and act so long as they achieve their goals. The main aim of America in the war against Iraq was to find out whether it manufactures nuclear and to get rid of Hussein Sadam. They did not detect any nuclear yet they caused a lot of destruction politically, socially, and economically29. Violation of international law has been a major challenge facing its implementation. The law does not clarify what should be dome to a country that violates its doctrines, practices, and norms. United States of America and Israel have been accused for over reacting by using too much force against other countries30. Customary international law is one of the other legal sources of international law. In this type of law, it has utilized the Caroline doctrine. This doctrine set the standards and practices for anticipatory self-defense that is outlined in the customary international law. This law was accepted after the Worlds War II because it was in-depth the doctrine of Caroline was reaffirmed to work and maintain the required standards31. The United Nations Charter rejected the Caroline doctrine after its establishment. This was on the basis that it was not universally accepted because most international lawyers argue that article 51 of the United Nations Charter supersedes it. There were different conclusions on its applicability due to many inconsistencies within the law. The rule of proportionality explains how countries should respect other nation’s sovereignty without overstretching their mandate32. Conclusion In conclusion, international law is essential in regulating the relationship between nations. This helps to promote international peace and security. A conference was convened by the United Nations to draft the charter that would guide all the operations and activities involved in right of self-defense of a country or individual person33. Powerful countries should not use their superiority to destroy other nations because they cannot respond effectively34. All countries have a right of self-defense but it should report to the United Nation’s Security Council for guidelines and way forward to be provided. Rights of self-defense are recognized by the International laws through the International Court of Justice35. The member country is suppose to report immediately to the Security Council so that it can use its responsibility and authority to take action that is deemed necessary to restore international peace and security36. The process of carrying out self-defense by attacking other nations should be within the international law. International should be well defined so that those who go against it are punished37. Though international law has right of self-defense, most countries have misused it because they want to achieve their own ill motives38. They use their powers to influence the United Nations Security Council to allow them respond by attacking other nations. Customary law and Caroline doctrines supports the right of self-defense even though Caroline doctrines were rejected by the UN Charter39. In my opinion, international law could address the issue of right of self-defense if the UN Security Council could follow the set rules and regulations strictly without the influence of superpower countries such as US and Israel. The bodies formed are to accelerate peaceful co-existence and to resolve differences that may exist40. The United Nation Security Council has not been in a position to protect the citizens by allowing other countries to overstep their mandate on right of self-defense41. Bibliography: Anghie, A. Imperialism, Sovereignty, and the Making of International Law. 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New York: LexisNexis Matthew Bender, 2006. Pp. 56-58. Read More