TOWARD A NEW
INTERNATIONAL LAW |
There is a growing need for a rational and consistent treaty-based International Law to replace the nominal Law of Nations as it applies to the recognition and treatment of States,
including sanctions, and the so-called real-politik supposedly based on pragmatism. Despite numerous conventions as well as non-binding covenants and declarations, the international community, as a whole, has no such rational and consistent legal policy.
International Law is, at its most rational, a compromise. At its most idealistic it is impossible to enforce. The problem is that much of International law is based on the concept of Custom. Custom is one of the bases for World Court decisions under the Statute establishing that body, and is recognized as such in the Vienna Treaty on Treaties. The question of when a Custom becomes International Law is somewhat difficult to answer due both to its circular nature and to questions concerning its legitimacy and implicit imperialism.
| THE PROBLEM OF INTERNATIONAL LAW |
The World Court can decide, in a specific case, that the issue in question is in fact an issue of Customary International Law, but Article 59 of the Statute establishing the World Court makes the opinion non-precedential so that it is not binding on subsequent decisions. The "experts" who tell us that the Charter itself provides the basis for types of international law are also, generally speaking, the ones who inform us that certain ideas or concepts have reached the level of binding Customary International Law, however, under the aforementioned Statute establishing the World Court held out as the basis for determining International Law, "expert" opinions cannot be the primary basis for establishing that something is or is not International Law! Likewise, the General Assembly of the United Nations can pass resolutions concerning whether or not something is actually a violation of international law, but, under the UN Charter, such resolutions do not have the power of international law nor are they considered such by either the Statute establishing the World Court or the "experts." Of course, treaties and declarations can state that something is Customary law, but the former are only binding on the parties which ratified it and the latter are merely general statements regarding hoped for goals for the future. Finally, a national court can hold that a Custom is International law, but this court decision is only binding for that nation, similar to the jus gentium, or International Law of the Romans, based on what the Praetors thought the laws of foreign nations were like - and which had no binding effect outside of the Roman Empire. One could, of course, hold that Customary International law could be considered as such when numerous World Court opinions (no matter how non-precedential), General Assembly Resolutions (no matter how non-binding), expert opinions (although not a primary basis for International Law), treaties (although only binding on the ratifying signatories), and national court opinions (although only binding on the laws of that specific nation) might have greater weight when they all point in the same direction. In fact, concepts like universality and opinio juris are frequently discussed by those same non-authoritative experts and nationally-limited courts - thus according to those very same parties who can only provide secondary authority or can only affect a single nation's views on international law, the aggregation of such components results in binding Customary Law! But, of course, the experts or courts cannot hold these views to be binding on others under the Statute.
Next, we have the question of Imperialism. Nations are much more likely to support non-binding resolutions and declarations with which they do not agree than they are to sign binding Treaties, especially where recognition as well as financial and other support is likely to be forthcoming from powerful, usually Western, nations. Opposition to those non-binding resolutions and declarations is, on the other hand, likely to result in isolation from the economically and politically powerful States and idealistic International organizations. After all, the Resolutions and declarations will have no immediate effect on the regimes whose representatives sign the documents. Thus such documents do not, in reality, show whether or not something has become international custom. Indeed, the continued torture, summary executions, disappearances and et cetera, in the field of International Human Rights, show that many of those nations have no such custom and that the various regimes have only signed such documents for political and economic gain!
Finally, many of the people pushing for these Resolutions and Declarations, including representatives in the General Assembly are idealists who have no understanding of the complexity and reality of specific situations. The result are absolutist claims which are often rendered impracticable when applied to the real world. When, under International Law, Croatia and Bosnia-Herzegovina are recognized as independent nations and Serbia is sanctioned, while Chechnya is not so recognized and Russia is not placed under sanctions for its actions in the former ASSR, it is clear that the clearly stated, absolutist terms of International Law are not absolutely applied! This, in itself, undermines so-called Customary law and shows that it is not truly being practiced.
The nations of the world do not have a consistent policy on which to base decisions concerning when to recognize the independence of a new state or when to place sanctions on another nation with which it has some moral, political or military disagreement. The United States and its European allies recognized the independence of Croatia, Bosnia Herzegovina and the other break-off states of former Yugoslavia, while refusing to recognize attempts to separate from those newly independent nations. They did not recognize the independence claims of the Kurds, Basques and similar groups. Sanctions have been placed on Cuba for having a non-democratic, socialist government opposed by Cubans not living in Cuba while the Chinese Communists, whose leaders murdered thousands in Tianamen Square, have long been accorded a variant of MFN - and have now been invited to join the World Trade Organization! The Iraqis and Turks (and Iranians) have engaged in chemical warfare, ethnic cleansing, persecution and bombing of Kurds without being sanctioned economically. The Russians have ruthlessly crushed independence movements in the former ASSRs, again without sanction! South Africa was sanctioned economically for its system of apartheid.
The basis for this apparently inconsistent policy is based on what is believed to be pragmatism. For example, placing sanctions on Russia would probably not cause that nation to allow the former autonomous republics to become independent States, but it would cause it to retreat into regional imperialism, global isolation, and, probably, fascism. Similarly, sanctions on China would probably move it closer to violently attempt the conquest of the former Republic of China, cause an increase in oppression in Tibet and push it back toward its own, unique, brand of Communism. Supporting the eventual statehood, or, at least, autonomy of Palestine would help bring peace to the middle-east while supporting Kurdish independence would likely destabilize the region - or so the advocates of real-politik inform us. Thus, that which is more likely to lead to peace is to be supported while that which leads to conflict - especially with major powers like Russia or mainland China! - is to be avoided. However, where such overriding concerns are not present or are marginal, the West, usually led by the United States, is more likely to consider ethical issues. This is especially true where the public, encouraged by the Press, becomes aware of the issue and feels the situation to be morally outrageous, as in South Africa. Such pragmatism, on the part of the U. S. and its allies is not, itself, immoral, since it is based on the avoidance of conflicts which could cost hundreds of thousands, even millions of lives. Indeed, such a concern led to the US's reluctance to recognize the Yugoslavian break-off nations as independent without a regional plan including Serbia, for the eventual establishment of such independence [Western Europe, led by Germany, finding its economic interests and its rhetorical support for the right of self-determination to fall in line, hastily supported such independence, regardless of the consequences].
At this point, one might ask why, if this policy works so well, should it be changed. The answer is because it is inconsistent, does not always interact well with International law, and periodically causes other, albeit less international, problems. Inconsistency, of itself, is not necessarily bad where such benefits accrue; however, the charge of inconsistency frequently leads to charges that the United States and the West only act in their own direct interests. Such views may, themselves, work to undermine U. S. policy and make some independence movements unwilling to seek peaceful alternatives to independence or warfare. Further, it leads to the view that since the West only acts when its own interests are in jeopardy, the best way to seek a movement's goals is by making its independence in the interest of the West. This has led to the rise of international terrorism! And the accuracy of this view cannot be totally denied. After all, some Palestinian groups have engaged in international terrorism, chiefly to gain the attention of the United States, a nation deemed the enemy of Islam because of its moral support for the existence of Israel. As Americans have been forced to watch the hijackings and executions of Americans, they have become more aware of the Palestinian situation and support has grown for Palestinian Independence both from the moral standpoint of supporting their right to self-determination and the selfish standpoint of not wanting to become a victim of terrorism. This growing interest on the part of the American people, combined with the fact that terrorism was aiding in the destabilization of the middle-east, led to a change in policy. Thus reaction to real-politik led to a change in global dynamics and regional destabilization, leading to a change in real-politik.
Further, this pragmatism often conflicts with general principles and customary international law because that law is based on absolutes which often do not discriminate between that which is likely to solve the problems without causing worse problems or even international conflict and that which is likely to cause new, potentially catastrophic problems, often exacerbating the very thing it was intended to solve. Of course, neither the United States nor, on a good day, the other Western nations are likely to involve themselves in situation which might cause international conflicts or protracted wars, so when the West acts in one situation and not in another, this undermines the credibility of International law, causing it to be viewed by many as simply a threadbare curtain behind which the powerful nations, with the ability to use the Security Council to push its policies on one nation or veto any action toward itself or another, carry out their own interests. The only way to avoid this is to create a rational, consistent policy, agreed to by treaty, which takes into account that, for instance, the United States is not going to go to war with Russia, possibly causing a world war and nuclear annihilation, simply because the people of Chechnya claim that they have a right to self-determination! Finally, where pragmatic concerns are not raised, the absolutist principles embodied in various generalized, non-binding declarations combined with knee-jerk reaction to emotional press coverage, often leads to unexpected problems because local pragmatic concerns (that is concerns relating to the people or a portion of the people of a nation arising from the potential effects of the attempt to force that nation to abide by the statements embodied in declarations and conventions) were ignored.
A new International Law based on binding treaties must be put into effect for deciding when new nations will be recognized. It must take into account the interests of any predecessor nation(s) and be applied to all peoples seeking self-determination. The people of Chechnya, East Timor, Northern Ireland, Kurdistan, Palestine and others must all be put through the same neutral process. If ethnicity is to be a basis for independence, then it should be applied to the Chechnyans and Basques as well as the Palestinians and East Timorese. If recognition is not to be given to the Chechnyans then a rational, neutral basis must be given for the different outcomes - one involving a difference in the bases for recognition of the two peoples, not simply because Russia, unlike Indonesia, is a nuclear superpower!
This new law must also cover the appropriateness of sanctions and embargoes and be applied in an equally neutral manner with regard to the nations to be sanctioned. If the law would require sanctions against Indonesia and no clear difference is seen between the plights of the East Timorese and the Chechnyans then sanction would have to be applied to both. If, pragmatically speaking, it would not be practicable to have an international law which would require sanctions on Russia, then that law should be so limited for all nations. An objective basis for non-application of sanctions should be allowed, however, when the sanctions hurt the people they are supposed to help. For instance, regarding the right to self-determination, sanctions intended to pressure a change to a democratic government in Cuba which fall on the Cuban citizens living in Cuba should be prohibited because the intent is to force those Cubans to be placed in severe economic straits such that they would be willing to risk their lives to overthrow a government which they would otherwise be unwilling to risk their lives to overthrow. On the other hand, supporting terrorism abroad would be a valid basis for sanctions.