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The UN and International Law.docx

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McGill University
Political Science
POLI 244
Mahesh Shankar

TUESDAY, JULY 24, 2012: The United Nations and International Law  Realists are pessimistic about the prospects for peace in the international system, while liberals and constructivists are optimistic about peace and cooperation, and they emphasize the importance of institutions in creating international rules and norms.  Constructivists believe non-compliance with international rules and norms will lead to long-term costs, which states have an incentive to follow. Liberals say states follow norms because it becomes costly for them not to do so (dueling logics). What is International Law?  In essence, it is a set of rules and principles that are intended to regulate state behaviour. It is also a consent-based system of governance and regulation of international politics.  Laws are only applicable to states when they have consented to be part of these norms. No state can just be expected to follow a law, no matter how widespread it might be, unless it has consented to be party to it. In the domestic realm, the state forms laws in whatever method applicable, and those laws are imposed on the domestic population, and they have no choice but to follow them.  Abiding by laws are completely voluntary due to the concept of sovereignty. Sovereignty is the concept that states that every state has supreme authority and autonomy as to what goes on in its own borders and how it pursues in international relations. Technically this means no state can impose themselves on another or force another state to do something it does not want to do. In international law, this means no group of states can impose a rule on another non-complying state.  Once states have consented to adhere to a particular law, they have no choice but to follow them. International laws are binding in this sense (“hard law”). ex) If you have agreed to diplomatic immunity, you cannot change your mind because you dislike one particular diplomat.  Hard laws are the classic sense in which international law is classified. “Soft laws” are more like nascent rules, or they are precepts that emerge from deliberations inside institutions. They are not binding on any states. Scholars expect these soft laws to still influence state behaviour in meaningful ways because they still proscribe certain things in international behaviour. They function more as non-binding guidelines that setup certain norms and expectations. ex) 1992 Guidelines on the treatment of Foreign Direct Investment by the WTO. Many states did chose to comply, but more importantly, it was useful for a precursor to the establishment of hard law. Soft law’s semi-legal framework usually precedes the imposition of hard laws on the same topic.  In new issue areas, like Internet governance, where states are wary to create laws, soft law gives an opportunity to regulate without imposing laws before states may be ready to do that.  There are a number of sources of laws: 1. Customary laws are uncodified and unwritten, but instead have developed from certain practices from state interaction over time. Diplomatic laws such as the law of diplomatic immunity, which developed as a custom, and laws that regulate the conduct of war are examples. 2. International treaties are written and codified. There is a tendency of customary laws to become treaty laws. They could be bilateral (ex. between the US and the USSR during the Cold War on Arms Reductions) or multilateral (customary laws of war were gradually codified into the Geneva Conventions in 1864, 1906, 1929, and 1949). There is a growing role of institutions in the creation of these laws. States use this is a platform to create their law. For examples, IAEA was created from the Non-Proliferation treaty, but Iran and North Korea’s failure to adhere to these laws will make them vulnerable to punishment. Another example is the WTO, which has strong enforcement mechanisms to ensure states adhere to the law, or face being thrown out of the organization.  The United Nations has been the arena where most states go to make treaty. It is the institution with the highest membership. The importance of the UN is particularly striking in the field of international peace and security. The UN, as noted by Churchill, “was never meant to create heaven on earth, just to save it from Hell.” The UN enshrines the idea of states as sovereign entities and uses the idea that state sovereignty is inviolable as its main premise. It seeks to effectively prevent, control and terminate inter-state war.  The UN makes illegal any act that clearly violates the territory and sovereignty of another state, and it seeks to create a system that enforces this. Collective security is the primary mechanism through which the UN does this—Chapter 7 of the Charter of the UN states they seek to deter and defend from “actions with respect to threats to the peace, breaches of the peace, and acts of aggression.” Article 41 authorizes the Security Council to determine if something is a threat, and authorizes them to use military or non-military sanction. Article 42 authorizes the collective use of force as authorized by the Security Council as a method of last resort.  The idea behind collective security is that if war does occur, theoretically collective security will bring the aggressor quickly to task. Aggression will be quickly identified and quickly acted on, causing the aggression to be reversed. The logic behind collective security is that security is no longer the problem or responsibility of a single state, and any breach of security is considered to be a problem for all. The conditions of collective security are as follows: o The collective system must be able to muster at all times such overwhelming strength that the aggressor cannot stand up to that coalition. It needs to show that the majority of states in the international system will respond by punishing the aggressor. o They need to show that these states joining together all have the same concept of security that they are defending. They must be seen to possess a common interest and desire to punish aggression everywhere and anywhere. If it becomes obvious to an aggressor that not all states in a collective security coalition have an interest in punishing the aggression, the threat of collective security becomes no longer credible. o States must set aside their conflicting political interests for the common good and the maintenance of security in the international system.  Critics (particular realists) point to several issues in collective security. The utility of the UN as an organization to address fundamental issues in peace and security is overstated and exaggerated. They argue something like a collective security system is utopian and will rarely if ever work. Practically, it is useless in conveying any sort of credibility to potential aggressors. 1. Firstly, states need to be able to accurately identify aggression. The more accurately you can say which actions will or will not ignite responses, the more credible your threat will be. This is often very difficult in the international system—it is difficult to prove who was the first aggressor because there is no impartial observer. Different states in the collective security organization could have different ideas about what constitutes aggression. While there may be consensus on responding to aggression, they could all think aggression is something different. Does a border clash constitute aggression? 2. A common understanding is difficult to achieve and aggression is a concept that is very unclear. States may often have different assessment of who the aggressor is. The problem is particularly severe because using force first isn’t always equal to the aggressive actions—particular with preventative or preemptive strikes (and Article 51 of the Charter allows states to use force in defense). States can always justify their action as an act of self-defense. States may have different ideas on which state is the aggressor. If
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