International Law and International Organization

International Law and International Organization Introduction Generally public international law primarily is the laws of states, in all its forms. This includes the many international dealings of states with each other. The purview of international law includes the institutions which operate under its broad coverage.[1] International law is presupposed on the concept of equality of states, which are subject to international laws, subject to their recognition of any rule of law as binding upon them, with the same principle applying to the courts. Hence for the system of international law to be further recognizable, there comes the need for international organizations or institutions. Thus, if there is no identifiable institution either to establish rules, or to clarify them or see that those who break them are punished, how what can is called international law be law.[2] The role of force in international law has been largely misinterpreted to favor powerful states, hence the equality of states in international law, but without a unified system of sanction in international law, the use of indiscriminate force by nation-states would be almost inevitable.[3] The inability of the structure of international law to properly deter any aggressor country would continually breed new levels of aggression amongst states, hence the need for international organization.[4] History of Relationship between International Law and International Organization. International law has been developing steadily since the Second World War, and forces have been consistently playing a critical role in the international scene, as this include international organizations. As the complexities of life has multiplied so has the response of international law. International organizations are product of the ingenuity of corporate international to spread its globalization and promote international law. Meanwhile, among many international organizations, the United Nations facilitates international diplomacy, the World Health Organization coordinates international public health and protection, and the International Labor Organization monitors and fosters workers rights around the world.[5] Historically, international law addressed only relations between states, and war was the major reason for international diplomacy between countries, but today international organization have a major part to play in the executing of international goals. Treaties are the foundation for the establishment for international organization, and usually the establishment treaty or agreement is what determines the limit and extent of the powers of the organization. International organizations have a limited degree of international personality, especially vis-à  -vis member States. They can enter into international agreements and their representatives have certain privileges and immunities. The United Nations gets its power from the charter of the United Nations 1945, and in the dispensing of its functions it is divided into different arms. History of international organization in world politics today The idea of nations-states having and establishing bodies to secure its interest in another country or promote a certain cause around the world is not new to international legal system. Without going back into medieval Europe where countries had consuls which represented the interest of their mother nation. The private International associations sprang from the realization by non-governmental bodies, whether private individuals or corporate associations, that their interests had an international character which demanded the furtherance of those interests via a permanent international association with like bodies in other countries. In those fields where co-operation between governments became imperative, there developed the public international unions; these were, in fact, an essay into international organization in the administrative sphere. There developed a gradual transition from the private corporate unions to international organization.[6] Thus, in 1840, the world Anti-Slavery Convention was established, and in 1863 a Swiss philanthropist, Henry Dunant, Created the Red Cross.[7] Modern international organizations The need for increased international participations and cooperation fostered the need to developed more stable organizations to checkmate the politics of the nation-states hence acting independent of the states i.e. subject only to the agreement creating them. The powerful nature of states and sovereignty of these states led to the private international charter companies becoming an extension of their home countries, hence a need to bring more independent organization. In 1903 the International Office of Public Health was created, and in the field of economics the establishment of the Metric Union (1875), the International Copyright Union (1886), the International Sugar Union (1902) and the International Institute for Agriculture (1905) may be mentioned as early forerunners of present-day international organization. A major breakthrough for modern international organization was in the year 1919 and the Versailles peace Settlement which followed the First World War, American president advocated for a general association of nations.[8] The League of Nations was the first international organization which was designed just to organization operation between states as a result of the war, its specific aims was to guarantee peace and the establishment of a system of collective security, following which an attack against one of the member-states of the League would give the rest the right to come to the attacked states rescue, but sadly the league of nations failed in preventing war, which was its major objective. In 1945, the United Nations was established as a successor to the League of Nations. Since the creation of the UN, much of international law and diplomacy has been developed, shaped, implemented, and enforced through U.N. bodies and related international organizations. International organizations both make international law and are governed by it.[9] Functions and Structures of International Law and Organizations In an attempt to discuss the structure of international law and international organizations, to highlight the sources of international law and its enforcement mechanisms. It is of general knowledge that the main function of international law is to promote peace and cooperation among nations-states, any other function would be specific to an arm or organization operating in the international sphere. A vast network of international laws and dozens of international organizations make globalization possible, the scope and authority of international law have thus expanded dramatically during the era of globalization. Historically, international law addressed only relations between states, but globalization has changed international law in numerous ways. For example, as globalization has accelerated, international law has become a vehicle for states to cooperate regarding new areas of international relations (such as the environment and human rights).[10] Because of the need for enhanced international cooperation, age hold topics of sovereignty are becoming malleable.[11] The structure of international law involves, Public International Law (The relationship between sovereign states and international entities such as International Criminal Court and international criminal courts), Private international law, this involves jurisdictional conflict in resolving transnational issues. Since there is no parliament to make international law the way domestic Legislatures create laws for one country, the major source of international is treaties between states, also the customary state practice, general principles of law common to many countries, domestic judicial decisions, and the legal scholarship.[12] Enforcement of International Law and Structure of Organisation Within International Law In an international system where there is no overarching authoritative enforcer, punishment for non-compliance with the rules of public international law rules, hence the deriding insinuations that it is not law. Some of the enforcement mechanism in the international legal system include Reciprocity is a type of enforcement by which states are assured that if they offend another state, where the other state is primed to respond in the same measure. There is mutuality of response, as was witnessed in the cold war, between geopolitical powers of the era. The fear of reprisal or reciprocal action act as a form of deterrence, to prevent a state from committing acts against another state which it may not itself be able to withstand. The killing of prisoners of war or the imposition of heavy tariffs on products from a certain country to limit the imports. Guarantees of reciprocal reactions encourage states to think twice about which of their actions they would like imposed upon them. Collective action: several states act together against one state to produce what is usually a punitive result, in a bid to force such state from refraining from an act or from continuing with an action. Example is the commonwealth sanction of South Africa during the apartheid regime. Similarly, the United Nations imposed joint economic sanctions, such as restrictions on trade, on South Africa in the 1980s to force that country to end the practice of racial segregation known as apartheid. Name and shame:[13]Most states dislike negative publicity and will actively try to avoid it, so the threat of shaming a state with public statements regarding their offending behavior is often an effective enforcement mechanism. This method is particularly effective in the field of human rights where states, not wanting to intervene directly into the domestic affairs of another state, may use media attention to highlight violations of international law. In turn, negative public attention may serve as a catalyst o having an international organization address the issue; it may align international grassroots movements on an issue; or it may give a state the political will needed from its populace to authorize further action. A recent example of this strategic tactic was seen in May 2010, when the U.N. named the groups most persistently associated with using child soldiers in Asia, Africa, and Latin America[14] However since international organizations are established under international law, law serves two important purposes in relation to international organizations. On the one hand international organizations rely upon law and legal technique as the primary means of their protection[15]. On the other hand one of the major claims to legitimacy of international organizations is their rational-legal foundation. It is therefore important to provide a legally coherent account of the relations between international organizations and national legal systems, particularly where the rights of individuals are concerned.[16] The constituent instrument establishing the organization will set out the functions and goals of the organization and the structures and powers through which these are to be achieved. In particular international organizations are usually endowed with organs of their own, including an assembly or council, at which the membership is represented in plenary, to determine the direction and policy of the organization, and a permanent staff employed by the organisation which will at very least service the representative organ, but also will often carry out the policies of the organization or assist, supervise or coordinate their execution by others. Some organizations, or course, have more sophisticated organic structures requiring more clearly defined separation of powers. Political and Economic Interdependency Within The Organisation and The States International organizations, otherwise known as intergovernmental organizations, or IGOs, are formed between two or more state governments. Some IGOs operate by making decisions on the basis of one vote for each member-state, some make decisions on a consensus or unanimity basis, while still others have weighted voting structures based on security interests or monetary donations. In the General Assembly of UN, each state has one vote, while in the Security Council, five states are permanent members and have a veto over any action. The World Bank arranges its voting according to the Member States shareholding status, which is roughly based on the size of the states economy. This is often thought of as the one dollar = one vote approach to representation. There are nearly 2,000 international organizations that deal with a wide variety of topics requiring international cooperation, such as the International Civil Aviation Organization, the Universal Postal Union, the International Organ ization for Standardization, and the International Organization for Migration (United Nations, 2003). The relationship of an organisation to its member States is complex and multi ­faceted, On the one hand the organisation is the servant of the member States, in that the member States as a collectivity establish the organisation, fund it and determine its direction and policy.[17] However once the organisation is established individual members owe numerous duties to the collectivity, including not only the specific duties contained in the constituent instrument such as to contribute to the funding of the organisation, but also duties of good faith and cooperation[18] It follows that where the membership has collectively empowered an organisation to act, each member States must respect the rights of an organisation to act accordingly, and must eschew any interference which would amount to an undue unilateral attempt to modify the collective will. The United Nations Charter 1945 Article 100 provides: In the performance of their duties the Secretary General and the staff shall not seek or receive instructions from any Government or from any other authority external to the Organisation. They shall refrain from action which might reflect upon their position as international officials responsible only to the Organisation. The implication of the above is that the United Nations in the charter was trying to forged an isolated relationship and freedom from interference from states and hence the United Nations is not an extension of any country and the principle of equality of states is enshrined in Articles 2 of the charter 1945, and this was departure from the position under the league of nations where governments were responsible for their national in the league civil service, hence one of the many factors that contributed to the failure of the league of nation was the inability to secure freedom from the nation states. Article 105(2) of the charter provides for independence and immunities to necessarily exercise independent functions. A key feature of the united nation which highlights the interdependence between the organization and the states is the Charter also provides that, in the territory of each of its members, the Organisation shall have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes (Art. 104). This has been interpreted to confer on the United Nations organisation legal personality subject to the laws of the nation states, i.e. to enable it to contract, hold and dispose of property and to be party to legal proceedings.[19] In the reparations case that the Organisation had the capacity to bring an international claim against both a government (de jure or de facto) of a Member State and of a non-Member State, responsible for injuries to an agent of the Organisation in the performance of his duties, with a view to obtaining reparation in respect of damage caused to the Organisation[20] Finally the interdependence of the UN, for its enforcing of international obligations on members states is the bane on the organisation. In the quest not to create a super state superior to all states which a members of it are. The fear by the states was not surrender their sovereignty to the UN, and hence the UN is more of a cajoling organisation. Until the UN, can enforce international obligations without the help of the strong state, the UN may not be said to be fairly balanced to handle international aggression. International Law and the Need for Multilateral Intervention State sovereignty is the concept that states are in complete and exclusive control of all the people and property within their territory. State sovereignty also includes the idea that all states are equal as states, since all states are equal in this sense, one State does not have the right to interfere with the internal affairs of another state. Practically, sovereignty means that one state cannot demand that another state take any particular internal action. Under the concept of state sovereignty, no state has the authority to tell another state how to control its internal affairs. Sovereignty both grants and limits power: it gives states complete control over their own territory while restricting the influence that states have on one another. Globalization is changing this view of sovereignty Similarly, states no longer view the treatment of citizens of one state as only the exclusive concern of that state. International human rights law is based on the idea that the entire global community is responsible for the rights of every individuals.[21] Multilateral intervention by a 3rd party state maybe views as any form of external force which attempt to limit the external sovereignty of a state. This may be the imposition of sanctions by the UN, acting as a front for the powerful member states to secure their own national interest. Otherwise multilateral intervention may be the intervention of a state in another to protect the former national interest through war. The law of armed conflict (also called the law of war) can be divided into two categories. The first concerns the legitimate reasons for starting a war, known by its Latin terminology, jus ad bellum (Right to Wage War). The laws during war, jus in bello (Justice in War), are also called international humanitarian law. Article 2(4) UN Charter All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.(United Nations, 1945). Some regard this as the prohibition of the use of force outside of UN-approved actions. On the other hand, others consider this clause only non-binding rhetoric, especially considering the history of armed conflict since the UNs birth in 1945. In my opinion the UN Charter and CIL do recognize that a state is entitled to use force without international approval when it is acting in self-defense. However, the events that trigger this right to self-defense are subject to debate. Most international lawyers agree that self-defense actions must be immediately necessary and proportional to the attack the state is trying to repel. Russian aggression against Georgia in 2005. The applicability of Art. 2.4 In this era of terrorism and weapons of mass destruction, some contend that legal self-defense also extends to pre-emptive attacks to prevent the development of a military threat. Geneva Conventions of 1949 (ICRC,1949 Some of the most important principles of jus in bello are that there must be a valid military purpose to every attack (military necessity), that attackers must try to avoid killing non-combatants (the principle of distinction between military and non-military targets), and that if non-combatants are killed, their deaths must be in proportion to the military necessity of the attack (proportionality). Once armed conflict has begun, international humanitarian laws begin to apply.[22] New directions in international law and organization interdependency This is the new world order, to create a more central world, as certain challenges are global in nature and there may be need to act swiftly irrespective of territorial sovereignty. International Human Rights Law International human rights law is different from most areas of international law because, rather than governing relations between states, human rights law governs a states relations with its own citizens. The modern human rights law movement has its roots in the post-WWII trials of Nazi leaders at Nuremburg. The world community recognized that the mass atrocities committed during WWII were too serious to be handled under domestic laws because the crimes committed were crimes against all of humanity. Subsequently, the creators of the UN recognized the reaffirmation of fundamental human rights as one of its most important purposes, and in the first year of its existence, set out to ensure that goal. The first step took place when The Human Rights Commission-at the time the lead UN body of human rightsproduced the International Bill of Human Rights, which is composed of the Universal Declaration of Human Rights and two binding treaties, the International Convention on Civil and Politica l Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). On March 15, 2006, recognizing the need to update its human rights organizations, the General Assembly of the UN created the Human Rights Council. The Human Rights Council was created with the specific intention to address the heavy criticism that The Human Rights Commission had received for allowing far too many states with poor human rights records into the delegation (BBC, 2006). This new body is responsible for further strengthening and promoting human rights around the world. One of the Councils many tools for protecting human rights is the innovative Universal Periodic Review, which allows for the examination of the status of human rights within all member states. Less than two weeks after the formation of the Human Rights Council, on March 27, 2006, the Commission on Human Rights met for its sixty-second and final session A sophisticated system of agreements and monitoring organizations exists to promote respect for the rights enshrined in these documents, both on international and regional levels, as with the European Convention on Human Rights and its Court of Human Rights, and the American Declaration and American Convention on Human Rights and their Inter-American Commission and Inter-American Court on Human Rights International Environmental Law Environmental law revolves around a core theory that the earth has limited resources that must be jointly enjoyed and cared for, regardless of their physical presence in the territory of one state as opposed to another. Environmental law attempts to bring states into agreement on issues such as desertification, sustainable development, biodiversity, endangered species, hazardous materials, climate change, and trans-boundary pollution, all of which have been the subject of major international treaties, such as the United Nations Convention on Biological Diversity (CBD), the United Nations Convention to Combat Desertification, and the Convention on International Trade in Endangered Species. Conclusion As noted earlier, there are nearly 2,000 international organizations that deal with a wide variety of topics requiring international cooperation, including diplomacy, trade, aviation, migration, development, and many, many others. As with international law in general, these organizations are crucial to managing globalization, but are controversial because of their impact on state sovereignty. The United Nations is a complex network of organizations. Just as any government may be divided into branches, such as the judiciary, legislative, and executive, the UN also has various bodies with different functions. The overarching framework of the United Nations incorporates five principal organs, but a vast array of underlying specialized agencies, programs, funds, and related organizations maintain ties with the UN while operating under differing levels of independence. Article 24 of the UN Charter confers upon the Security Council the primary responsibility for the maintenance of international peace and security. As such, the Security Council is the only UN body that can pass resolution that the member states are legally committed to obey. The Security Council is also the only part of the UN that can authorize the use of force and there by physically enforce its resolutions, hence it is the arm twister of the organisation. The Security Council has 15 members, including five permanent members, China, France, Russia, the U.K., and the U.S., and ten non-permanent members selected on a regional basis by the GA. The five permanent members have the authority to veto any substantive issue. The Security Council can meet at any time and has previously established peacekeeping operations, international tribunals, and sanctions [1] J. Bentham, Introduction to the Principles of Morals and Legislation, London, 1780. [2] H. L. A .Hart, The Concept of Law, Oxford, 1961. [3] L. Henkin, International Law: Politics and Values, Dordrecht, 1995 [4] Security Council resolution 221 (1966). Note also Security Council resolution 418 (1977) imposing a mandatory arms embargo on South Africa but couldnt deter the continuation of the Rhodesia killings, and even after the aggression by south Africa, there was insufficient response by the international law structure. [5] A. Nussbaum, A Concise History of the Law of Nations, revised edition, New York, 1954 [6] Rhine Commission, in order to deal with issues of navigation, or issues of pollution, on a regular basis. Following the establishment of the Rhine Commission in 1915, a number of other river commissions were established -managing the Elbe (1821), the Douro (1835) the Po (1849) and, after the end of the Crimean War, the European Commission for the Danube in 1856 [7] C. Cheshire and P. North, Private International Law, 13th edn, London, 1999. [8] L. Henkin, International Law: Politics and Values, Dordrecht, 1995 [9] Fr. Robert J. Araujo, S.J., Implementation of the ICJ Advisory Opinion Legal Consequences of a Wall in the Occupied Palestinian Territory: Fences [Do Not]Make Good Neighbors?, 22 B.U. Intl L.J. 349 (2004 [10] Newman and Weisbrodt ,International Human Rights(1st ed. 1994), pp.182-213, 13-19, 91-97, 130-141 [11] United Nations. (1969, May). Vienna Convention on the Law of Treaties, Vienna. Retrieved from: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf [12] Dinstein, Y. (2004). The conduct of hostilities under law of international armed conflict. Cambridge: Cambridge University Press [13] United Nations. (2010, May 21). UN identifies most persistent users of child soldiers in armed conflicts. Retrieved from: http://www.un.org/apps/news/story.asp?NewsID=34778Cr=coomaraswamyCr1 [14] Greenhill, S. (2011, October 29). Gaddafis killers will be puton trial over mob execution, vow Libyas new rulers. Daily MailRetrieved from: http://www.dailymail.co.uk/news/article-2054344/Gaddafi-dead-Mob-killers-trial-vow-Libyas-new-rulers.html [15] Bekker, The Legal Position of Intergovernmental Organizations. A functional necessity analysis of their Legal Status and Immunities (Kulwer, The Hague, 1994) pp.39- 42 [16] Reinisch International Organizations before National Courts(CUP, Cambridge,2000) at pp.5-10; [17] Nicholas Rostow, Before and After: The Changed UN Response to Terrorism Since September 11th.35 Cornell Intl L.J. 475 [18] ICJ Advisory Opinion on the Interpretation of the Agreement of 25 March1951 between the WHO and Egypt -1980 ICJ Rep. 73 esp. pp.94-96