Reformation and Enhancement of The International Law

In the distant past, International law was defined as the body of rules governing the relationship between the states. Unfortunately, such definition given did not satisfy the requirement of modern interpretation of the International law. As the world saw rapid changes happened throughout the era, from annexation of Goth’s States by the Roman Empire, to the fall of Berlin wall, the world has witnesses the needs to change the definition of International law itself.

The modern scholars of schools of International law finally came out with more comprehensive definition to the law. Which;

“International law is the system of law containing principles, customs, standards and rules by which relations between states and other international person are governed.”

While, according to Oppenheim, “international law is the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relations of states, but states are not the only subjects of international law. International organizations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.”

Another notable scholar of international law, Von Glahn defines, “International Law as a body of principles, customs, and rules recognized as effectively binding obligations by sovereign states and such other entities as have been granted international personality.”

Without a doubt, the definition given is more inclusive, and also reflective of the modern reality in which international law operates.

The question arose, as the time goes by. By which, whether, The International law, can be regarded as a “law”? .Scholars, all around the globe debated on this which resulted into several of groups, opinions, and approaches.

It was John Austin, who questioned the most, on whether the International Law is a ‘law’ or vice versa. According to Austinian theory, law is defined as a command enforce by a sovereign political author, which therefore, as in accordance with his interpretation, International law is not a real law but a positive international morality. Austanian’s ‘command theory’ had been largely discredited by other scholars, since command, is not an essential elements of the law to be recognized as a law. Which for instance, customary law is clearly not based on the command of the sovereign to the other.

As for recognition of the International law as a law, they are also numbers of scholars which accepted it, but the reasons are differ to one another.

The basic idea of the consensual theory is that the binding character of international flows from the consent of states and that consent may be given expressly by means of treaties and impliedly by means of custom. As highly persuasive it is, it has its own difficulties when that consent does not explain all legal obligations. In instance, the characteristic of Jus Cogens itself.

The other idea derives from the debate, is Natural Law theory, which being regarded as the direct negativity to the consensual approach. This is because; natural law theory is objectively base on the aspects of the moral principles of law. The reflection of this theory can be glaringly sees in certain perspective of international laws rules, such as matters dealings with human rights, International ranking crimes and last but not least, jus cogens.

As in my opinion, Ubi societas ibi jus is the most comprehensive and revolutionary theory of all. As the maxim stands, which briefly means “Law can only exist in a society, and there can be no society without a system of law to regulate the relations of its members with one another”. As the world reaches its peak of technological advancement and development, therefore, it is essential to the world to become closer as a major society, as it is a vital importance for international society to function to benefited one another. Sir Gerald Fitzmaurice once quoted, “The real foundation of the authority of international law resides… in the fact that the states making up the international recognize it as binding upon them, moreover, as a system that ipso facto bind them as members of the society, irrespective of their individual wills.”

In order to determine weaknesses, and afterwards to ensure reformation and enhancement of the International law, in my opinion it is crucial for us to learned how the international law developed from a piece of puzzle into such enigmatic importance to us today. Unlike one nation’s law that seems rigid in its development of principles, interestingly, international law is more flexible and savvy to the world situations, development as so to the politics.

In the opinion of some scholars, especially from the west, International law emerged in Europe dating back in the period after 1648 of the peace of Westphalia and is “essentially the product of Christian civilization”. This view had been criticized by numerous of scholars as they argued; the international law had come into existence even in the ancient times. This can been seen when the Islamic world had negotiated their external relationship with the ancient Egypt, Persians, China and India. In respect of Islamic legal principle is concerned, the Islamic law had been much more advance than those laws in Europe at that particular time as they had covered several vital topics of international law such as human rights, the treatment of aliens, the immunity and privileged of the ambassadors.

But, as in the view of Dr Mohammad Naqib Isham Jan, I am in the agreement with him, which on his view the formation of the modern international coincide with the emergence of certain strong centralized states in Europe claiming unrestricted sovereignty over their territories. In the 16th century, as the emergence of renaissance, the state beginning to separate themselves from the church and becoming more secular in their approach to the system of law. In the later century, as more European states becoming independent states, some scholars found that, it is impudence if there is no international law to govern the relationship between the emerging nations. In 1625 Hugo Gratius, a scholar of law had published his masterpiece, De jure Belli ac pacis [concerning the law of war and peace]. As the masterpiece it is, his work had stressed on principles of sovereignty, independence, and equality of all states. He also expressed his opinions and formulated a basis for reaching agreements in international disputes. By virtue of that, he has been regarded as “father of the law of nations”

The international law expanding their development in the 19th and 20th centuries when the world saw the treaties made up by the states to form the new revolutionary ideas as the “family of the states”. It was begun from the formation of States of Western Europe to the other parts of the world (as might be predecessor in today’s European Union, ASEAN, OIC etc). The Congress of Vienna 1815 had become a landmark to the development of international law. The congress being held in respect of international rivers and the treatment of diplomatic agents. Such development followed by other conventions such as The Declaration of Paris, The Geneva convention 1864 and The Hague conferences in 1899 and 1907. Hague conferences had established the Permanent Court of arbitration as it is critical to the development of international law.

From my perspective, the occurrence of the World War 1 or some considered it as a “great war” which begun by the assassination of the heir to the Austrian monarch, is a major events that brings significance development to the international law. As the world learned their lesson from the loss, and sufferings resulting from the big scale war, the world for the first time ever had joining in hands to established an international organization as to prevent any other subsequent wars. By virtue of The Treaty of Versailles in 1919, League of Nations had been borne.

However, the world seems didn’t learned their lesson when the Second World War occurred as the result of the failure of the League of Nations. After the end of the Second World War, the world had replaced League of Nations with United Nations (UN) which came into force on October 24, 1945.As the war criminals had being prosecuted by the winning party of the war, such as Nuremberg Trial, such act had been criticized by the international community as its seems bias to the justice. In the other hand, the third world countries also wants an equal representation on the world state as it being dominated by the former colonial powers, therefore, International bodies such as Security council, and International Court of Justice had been established. However, Attempts at a general codification of International law proceeded slowly under the International Law commission which was established in 1947 by the UN.

In the space and nuclear age, the international law seems bound to develop to regulate certain states activities to one another. In the cold war era, the struggle of power between two major blocks (communism and democracy) potentially seems to provoking another major war to the world. International law had played its role in order to prevent another war from breaking out by the way of treaties. Such as treaties to the internationalization of the space 1963, limitation of nuclear test 1968, and strategic Arms limitation Talks, which had been signed by USSR and United states in 1972.

After the cold war ended prior to the dissolution of USSR, numerous of treaties had been signed such as establishment of World Trade organization (WTO) in 1994 and Rome conference in 1998 which establishing the International Criminal Court (ICC)- a court in which individuals, rather than states may be parties to the proceedings.

Again, it is a mistake to conclude that international law is a perfect system. There is some room for improvement and advancement. Like the other things, International law also has its own weaknesses. The main problem lies with no effective institution to enforced, legislate, and application of International law. Even so, the world now has United Nations as the parent International Body, but as far as it concern, it didn’t equivalent to the global legislative body. It is true that we do have such International court as the source of arbitration if there are disputes between nation to solved the problem, however, it does not render to be compulsory to those states to bring the matter to the court but with consent of those parties.

The other serious weakness is the machinery of Security Council in its enforcement. Even though the Security Council has its powers to enforce the law to states, the Veto (negative vote) of the five permanent members frequently frustrates the action and its function since they are always politically motivated, in avoidance to achieve the true nature of justice.

As such, it is difficult to achieve justice, whenever one’s state interest, especially when they are one of the major powers of the world. For instance, in the event of Palestinian conflict, as the major ally of Israel, the United States of America regularly uses its veto power to protect Israel from any resolution or legal enforcement against them.

In order to overcome those weaknesses, they are two major things that are essentially needed to be provided. In my opinion most states are seeking for a collective security, in order to avoid any kind of bloodshed or genocide which disrupts their sovereignty, peace, reputation and trade. There is a need for sense of security, for state, as any other homo sapiens in need of security to prosper. Taking SecondWorld War as an example, the Nazi Germany had invaded Soviet Union because they think Communism is a major threat to their country. The sense of insecurity provides tensions and may deteriorate any kind of diplomatic relationship from one to another.

Secondly, it is also a vital importance to provide an atmosphere whereby one’s state interest didn’t conflicting to one another. The sense of moral conduct of the state must played a major role to achieve this ambitious – but possible agenda. History had teaches us on how colonization bring wars as the colonial states selfishly intervene another states sovereignty by means of wars or etcetera.

Despite the fact that there is lack of effective enforcement machinery, International law can nevertheless be enforced. This can be done by two ways, which by Peaceful and Coercive means.

In the Article 2(3) of the charter of the United Nations obliges Member states to settle any international disputes and issues by peaceful means. According to article 33 of the charter, peaceful means defines as “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement and so on”. Therefore, there are various methods in resolving conflict by means of peace. The parties can be resulted into commission of enquiry, reference to the tribunal of international law (International court), if there is any alleged violation to the terms or agreements and any disputes. However, please be noted that, in order to bring such matter into the observation of International court, it requires parties affected consent, and it is not compulsory.

The other way of enforcement of the international law is by coercive means. They are two types of coercive means involving non military actions and by military actions including the use of arm force.

By way of non military means, they are several of suggested method to be observed. Self help exist as a sanction in all legal system. The other remaining forms of self help are countermeasures such as Retorsion and reprisals. Retorsion is unfriendly, but not an unlawful, conduct of a state aiming at injuring the wrong-doer state. For instance, embargoes, disruption of diplomatic relations, and so forth. As in actual event, the prime example is whereby the United States had severed their diplomatic relation with North Korea as a protest to their Nuclear Weapon development program. Reprisals are acts which normally be illegal but which are rendered legal by prior illegal act committed by the other states. For example, if one state freezes the assets of the other state without any adequate justification, the other state can retaliate by doing the same manner to the other. It must be noted such act must be proportionate and not by delinquent means.

Military means are generally prohibited to be used by any of the state to the other state. This is in accordance with article 2(4) of the Charter of the United Nations: “All Members shall refrain in their International relations from the threat or use of force against the territorial integrity and politicalindependence of any states….” The charter must be absolute but for two exceptions; which right of self-defense under Article 51 of the charter and enforcement measures by the security Council under chapter VII (Articles 39-50) of the Charter (collective use of force).

I take this opportunity to point out a few solutions for the dilemma as to outcome those weaknesses is concerned.

Firstly, the comprehensive enforcement of the international law can be strengthening by promoting mutual relationship between countries all around the world. It should be remembered that, one of the main objective of the International law is to prevent any disputes and conflict arose between states that may be led to bloodshed and war. By promoting such dogma, states may shares mutual benefit as to one another and war can be prevented since they owns mutual benefit and such. As for example, in recent situation, the United States frequently threatened Iranian government that might be concluded into full scale war as a reflection to the protest as for the development of Iranians nuclear programmed. Mutual and strong relationship between Iranians ,Russians and the Chinese, proven a useful methods to prevent the war or at least prolonged the peaceful period among the region since, both government often used a diplomatic pressure towards the United States against any occurrence of war against Iran. Undoubtedly the main reasons of both superpowers in alliance with Iran because, they have their interest to protect as for instance, trading, technological research exchange and etcetera.

Secondly, the present United Nation Security Council proven to be a failure in respect to prevent occurrence of war whether it was a major conflict or a minor one. From Palestinian conflict, North Korean war, Vietnam War, to the operation of Iraqi Freedom, the Security Council failed to function as the protection of the world peace. As I mention before, the problem lies within the supreme Veto powers vested among five permanent members. In my personal humble opinion, the present United Nation Security Council is in a dire need to be restructured and to be revolutionized. As for present, one negative vote (Veto) from one permanent member is sufficient enough to make a resolution passed by the other members to be redundant. In the near future, may be such system should be tighten by requiring 2/5 negative vote from those permanent members to protest any resolution being passed. Or, maybe it possible, to abolish Veto powers once for all, and bring back the powers of vote to the Security Council members in line within the democratic sphere.

Furthermore, the structure of the United Nations also can be revolutionized by following European Unionsystem of modus operandi. This method proven the be proportionate to prevent disputes between the European states since historically European countries always involved in a major war with one another for ages, from the expansions by the Roman Empire, Domination of the French Empire in the Napoleonic Era, to the Second World War, the dominant countries in Europe always struggling to become a major powers in the continent by means of their military and economy supremacy. As we might know, European Union structure is differing from the United Nation. As for example European Union have their own parliament situated in Germany, and they have their own legislative body as they have their own continental court known as European Court of Justice. If such module can be applied tothe United Nations, it will provide an equal representation of the countries, whether they are superpowers or not, they have the same rights and privileges’ to stand for.

However, in contrast, both suggestion that has been pointed out before, is very hard to realized but for with a major event that the world finally will change once for all. The history had teaches us how the world changes its attitude towards the International law and cooperation resulting by both Great wars. In short, there must be a dire tragedy as to force the entire sovereign nations on earth to revolutionize their attitude towards the international law and politics.

Despite the ideas mention above seems far from recent world reality, but as per my opinion there is another way for the world to achieve stability with obedience to the International law. The closest thing to do is to develop new superpowers as to the opposition unilateral power that had been practiced by the United States in our days. As for instance, dating back in the cold war Era, there had been two major powers in the world that are; United States of America and the Soviet Union. Even though there were diplomatic severity between both nations, such as Cuban Missile crisis and subversive activities dating back in mid 60’s, there is no actual war ever happened, since both states fearing for the retaliation to each other.

As per my suggestion, the world should not stand with a unilateral or bilateral powers, but there must be Multilateral powers as to provide a sense of relationship and healthy threat in order to prevent total war so as to enforced International pressure to one another in a more receptive manner which regards to the International law as concern. In this work, I would like to take my opportunity to express, as a Muslims that living in a conducive environment, there must be a serious work and effort in order to develop a new super block in the world which might be known as Islamic block. It is a disappointment to face the reality that, Muslims today in the entire world are subjected to the oppression by the others as per instance, Palestinian never ending conflict, Rohingya refugees, Iraqi and Afghani war, and the most recent one, Uighur crisis. In my opinion, present Organization of Islamic conference (OIC) must be upgraded in its functionality and cooperation’s, as to pursue its goal. By developing such block, the Muslims nations might be the strongest factions of all, which as be known, we already have sufficient scholars and scientist as to circulate ideas and knowledge for the technological advancement, sufficient Human capital and more importantly, the assets of the mother earth that Allah’s had gave us lavishly with the natural resources scattered throughout the entire Islamic world whether explored or still hidden beneath the ground. As the United States in afraid of the emergence of European Union, China, and India to become superior powers, if such idea can become a reality, they might be fear more if the Islamic states finally embrace each other in the banner of relationship and unity, joining the race in hands with respect to protect us from the aggressions and tyranny.

In a nutshell, there is always a room for enhancement and reformation of International Law. International Law which unlike the other law, which seems comprehensive and rigid, it might seems fragile but subjected to expand accordingly to the politics of the world at the present to the end. The struggle of development of the International Law is always welcome, since the world is always in dire need for reformation and evolvement of the approaches on Law. The Law also is a ever growing law, especially after facing challenges and complexity as to seek benefits for the entire sovereign community.

1 Comentário:

Anonymous said...

a firm discussion on international law and your suggestion on its enhancement are good and somehow might be useful.