Are international legal barriers sufficient?

Khoo Wu Shaun

We live in a time when international law has steadily become an accepted norm of global diplomacy. Today, unilateral invasions of other sovereign countries are decried as ‘violations of international law’; barely a century ago, the only sounds anyone heard were those of the victors announcing their success. We have come quite a long way since Bentham first coined this term in the 18th century.

Yet, international law has not shed its image of being toothless. We have seen countries act in defiance of international law, but leave happily unpunished for their transgressions. This article will examine what these international legal barriers are, and whether they are currently sufficient to deter countries from intruding on the sovereignty of other nation-states.

Questions of legality in an international context are far more complex than those in a local context. Within a country, sovereignty empowers the government to set and enforce laws on people within its jurisdiction. Globally, it is difficult to define any clear overriding principle or government which can fulfil those roles. Our closest option is the United Nations (UN), an inter-governmental organisation which serves to promote peace and cooperation between member states. The International Court of Justice (ICJ), founded in 1945, serves as the UN’s judicial branch. Its purpose is to settle legal disputes submitted to it by member states and provide advisory opinions on legal questions for the UN bodies. But, since there is no global legislation for international law, where do these legal barriers we apparently pay homage to come from?

In the landmark North Sea Continental Shelf case, the ICJ affirmed that there are two primary sources of international law: treaties, or customary international law (CIL). Treaties are more enforceable than custom, as the countries have explicitly consented to the provisions contained within the document. In contrast, CIL is derived from customary practices between states. 

Most are aware that UN Security Council (UNSC) resolutions are legally binding on all member states in the UN. In some sense, UNSC resolutions also serve as a form of international law, since it applies to all countries regardless of whether they agree with the content of the resolution. Since their legal authority flows from the UN Charter, UNSC resolutions fall under the first category of treaties and agreements. 

Thus, international jurisprudence clearly exists, although it is less obvious than national legislation. Another question arises here: since there is no global government, what kind of punishments can international law mete out, and are these effective?

Theoretically speaking, the ICJ enjoys unfettered discretion in handing down punishments to countries which have violated international law, since there is no “international legislation” which states the maximum or minimum punishment for a particular offence. Realistically, the ICJ has little room to mete out harsh punishments, as their credibility hinges on countries viewing the ICJ as a fair judicial body, and not an overly strict and punitive institution. Despite this, the ICJ has doled out quite a few punishments, from ordering a country to withdraw from an occupied territory to ordering reparations for damages. Crucially, ICJ judgements are influential in global discourse. In the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ ruling that Israel had violated international law served as a powerful riposte to Israel’s constant denial to the contrary.

Although the ICJ seems toothless, its judgements are actually supported by the UN Charter, which empowers the UNSC to impose punitive measures for non-compliance, such as political and economic sanctions. Interestingly, most countries voluntarily comply with the judgement even if it was not in their favour. Countries are aware that if they lose and refuse to follow ICJ judgements, they will become outcasts for refusing to comply with international law. It is telling that no country has ever blatantly refused to comply with ICJ judgements. 

Akin to how punishments deter people from harming other citizens, international law also serves to deter countries from harming the sovereignty of other nation-states. Examples of such actions include the use of force in disputed maritime areas or intentional neglect of transboundary crises. Is international law sufficiently robust as a deterrent to such actions? 

While treaties and agreements are legally binding, they also require all parties to unambiguously agree not to carry out certain actions.If, however, the country has a strong incentive to keep their options open, they would simply refuse to sign. For example, Israel and India are both powerful nuclear-armed states which have not signed the Nuclear Non-Proliferation Treaty due to regional security concerns. This hurts the treaty’s objective to prevent the spread of nuclear weapons and its associated technology.

Perhaps UNSC resolutions are a better option since the resolutions are binding on all countries, circumventing the problem of requiring consent. However, the UNSC is only empowered to use its power in cases of “the maintenance of international peace and security”— hardly applicable to most problems in the world. Furthermore, the UNSC itself comprises countries which can protect their interests against the weight of international law – Russia and its annexation of Crimea come to mind here – and may not work in intractable situations.

The last possibility is customary international law, which appears to be the weakest tool of all three legal instruments. Yet some fundamental international principles— the right of international passage, rules on the use of force, and the duty to cooperate in transboundary environmental harm— were first conceptualised and subsequently reinforced in ICJ cases. These landmark cases have reinforced widespread agreement on certain issues, and crystallised this consensus into official CIL, thereby ensuring its fair application to all countries involved. Moreover, as we’ve seen, the ICJ has the influence and backing to ensure that its judgements are respected by the countries involved in disputes.

One drawback is that the ICJ does not have legal jurisdiction unless both countries declare they recognise the authority of the court. Some countries who have yet to officially acknowledge the ICJ have still proceeded with cases in it, somewhat undermining its authority. Furthermore, the Permanent Court of Arbitration (PCA), another international judicial body, recently ruled that it had jurisdiction over the Philippines’ case on China’s maritime and military activities in the South China Sea, despite China’s opposition to the proceedings. This demonstrates the growing force of international law which is slowly increasing its ability to influence global discourse and pressure countries into accepting its jurisdiction. This strengthens international legal barriers against unilateral intrusions on the sovereignty of other nation-states.

The implications of this are obvious. National legislation protects citizens, especially vulnerable ones, from harm. Similarly, international law functions as a protective barrier which shields weaker countries from the coercive pressures of stronger countries. In Nicaragua v. United States of America, the court ruled that the U.S. had illegally trained and funded anti-government rebels to overthrow the incumbent anti-American government. This sent a powerful message to the global community that superpowers cannot do as they wish: they are equally held to task by international law. 

Furthermore, global peer pressure and a body willing to persecute countries for illegal actions acts as a deterrent. For example, the U.S.’s foreign surveillance programme, PRISM, was criticised by government officials and legal experts from all over the world, forcing President Barack Obama to strengthen restrictions on the National Security Agency (NSA). In the past, the U.S. would have simply turned a deaf ear.

Having a strong understanding of its foundations, powers, and limitations is crucial towards developing this fledgling institution into an influential force for good in the world. Supranational judicial institutions, such as the ICJ and the PCA, still struggle for influence in countries where the rule of law and human rights protections are not as well-respected. It remains an uphill battle for these international courts as they slowly overturn the old belief that countries may do what they please as long as it is within their borders, or if they are the victors.

More essentially, international law serves as a platform for countries to tussle with each other over serious, but not drastic or permanent, intrusions of national sovereignty. In the past, the only available responses were acquiescence or full-out war. Today, international judicial bodies enable these countries to settle their disputes in a fair and peaceful manner. That must surely be the most important contribution that international law can make to the global community.

Why the US-backed coalition in Yemen is a threat to peace

WILL YELDHAM, WRITING FOR THE ORGANISATION FOR WORLD PEACE

When the Romans conquered Modern day Yemen they named it Arabia Felix or "Happy Arabia". However, the ongoing civil war, worsening humanitarian crisis and frustration of peace negotiations by neighbouring countries renders this description a dark ironic joke.

On Wednesday 1st July 2015, the United Nations designated the war in Yemen as a Level 3 humanitarian crisis, its most severe category. The U.S. responded the day after by issuing a joint press statement by department spokesperson John Kirby arguing for "a pause" in fighting which “would allow international aid organisations to deliver urgently needed food, medicine, and fuel to citizens throughout Yemen”. However, if the situation in Yemen is going to improve the international community needs to do more than simply issue nagging press releases.

There have been repeated attempts to end the conflict through negotiation, however each has collapsed through a combination of poor commitment from the warring factions involved and increasing meddling by neighbouring countries. These are split between the 10 states in an anti-Houthi coalition led by Saudi Arabia, and Iran, which has been waging a relentless PR campaign condemning the coalition. As a result, first the National Dialogue then the Riyadh Conference and now the recent Geneva conference have all disintegrated without result.

Recent UN investigations have revealed the humanitarian toll this unceasing conflict is having upon the civilian population. UN agencies say that, since March, 4.4 million people have received assistance, but this is only a fraction of those who desperately need help. The violence has killed more than 2,800 people, displaced one million and left more than 21 million people, 80 percent of the population, in need of some form of humanitarian aid and or protection. The Saudi-led coalition has also enforced a naval blockade which has prevented essential aid from reaching those in need. Both Yemeni military and Houthi are also accused of child conscription by UNICEF and Islamic relief. Indeed, in November 2009, over 400 children walked to the UNDP office in Sana’a to protest against the alleged Houthi abuse of children’s rights.

Modern Yemen was created in 1990 when North Yemen and Communist South Yemen merged and was tested during a brief civil war in 1994. However, regional tensions resurfaced in the summer of 2009 when government troops and Houthi rebels from the Shia Zaidi sect clashed in the north, killing hundreds and displacing more than a quarter of a million people. The recent, and frankly unexpected, success of Houthi rebels in capturing vast swathes of the country including the capital Sanaa led first to Hadi’s resignation on January 22 and subsequent flight to Saudi Arabia in February. The Houthis then declared themselves in full control of the government on 6 February, dissolving parliament and putting a Revolutionary Committee led by Mohammed Ali al-Houthi in charge of the country

In response, several states led by Saudi Arabia also mounted a military intervention in Yemen codenamed "Operation Decisive Storm". The Saudi-led coalition sided with Hadi’s government in exile and have been shelling Houthi positions from land and sea and hitting them with airstrikes. These have had a disastrous effect on civilians and on the country’s infrastructure with refugee camps and UNESCO heritage sites also targeted. The US is openly supporting the coalition by "providing intelligence sharing, targeting assistance, advisory and logistical support". Indeed, Human Rights Watch has even accused the US of supplying CBU-105 cluster munitions, prohibited in international law. The bombing has allegedly been scaled back as part of a new initiative "Operation Restoring Hope" however strikes continue to plague civilians and hamper humanitarian efforts by damaging airports such as Sana’a and Al Hudaya essential for transporting food and medical supplies.

The reasons for US involvement are largely strategic and have less to do with restoring a democratic government than preventing Iran’s growing power in the region. Anthony Cordesman, a military analyst at the Centre for Strategic and International Studies, stated that “The US ‘doesn’t want to see a threat to the [Bab Al Mandeb] strait and something that could affect the security of the Suez Canal". The U.S is so concerned with curbing Iranian control of the Bab Al Mandeb strait that they are unwittingly paving the way for Daesh control which would threaten global shipping through the Suez and provide Daesh with a massive source of revenue in tolls. Instead of simply attempting to bomb the rebels into submission, the anti-Houthi factions, be it Hadi’s government, the Saudi Coalition or the US, need to focus primarily on diplomatic solutions that don’t further harm civilians and economically cripple Yemen.

Admittedly, the most recent diplomatic endeavours in Geneva yielded little however this was principally the fault of the respective combatants and should in no way be taken as an indication that no diplomatic resolution can be found. The Geneva talks broke down before they ever got started; the two parties never even made it into the same room as each other. Even if they’d managed to get through the door, both sides chose to send second-tier political leaders to Geneva, with full knowledge that such leaders would not be able to make significant concessions or breakthroughs on their own.

U.N Secretary General Ban Ki-Moon’s appeal for a two-week humanitarian truce on the occasion of the Holy Month of Ramadan was simply cast aside by Ahmed al-Masiri, the leader of the Southern Resistance forces loyal to Hadi. He retorted that a humanitarian truce was "out of the question", stating "Ramadan is a holy month in which jihad is permissible". The fundamental problem was that the factions loyal to Hadi proposed such extortionate grounds for a ceasefire that the Houthi rebels could never have accepted them. While the Houthis sought a mutual ceasefire, the Saudis demanded nothing less than total surrender as the precondition for negotiations. Given that the Houthis have suffered relatively few territorial losses since the Saudis began their campaign, this was evidently never going to happen. However, this was no accident and was indicative of a lack of true commitment to ceasefire and negotiation on the part of the coalition. This ambivalence was echoed by Al-Masri who flippantly stated “We agreed [to come to Geneva] to please the UN, so that they don’t say we are against peace or that we are stubborn”. In such an atmosphere negotiation was impossible and will continue to be so unless the international community acts. The UN must stop pussyfooting around proposing talks doomed to failure and enforce ceasefire negotiations with the threat of economic sanctions and a peacekeeping operation. The possibility of peace being enforced in the current situation, with Houthi control of Yemen, would drive Hadi and the Saudi Coalition to the table.

Saudi Arabia and its allies (including Britain and the US) must also be held accountable for the atrocities committed in their bombing campaign. At the very least the U.S must cease supplying illegal munitions for use in Yemen. The Houthi rebels have displaced a democratic government, but simply carpet bombing the country isn’t going to get rid of them. Indeed, the impact of the bombing upon Houthi forces has been slight where as the damage to essential infrastructure has been devastating. A reduction in the bombing campaign and an actual commitment to diplomatic proceedings will not only have humanitarian benefits but also limit the potential expansion of Daesh into Yemen. If the Houthis are suddenly forced back and Hadi’s Sunni government weakly re-established in charge of an economically crippled country with divided security forces Yemen will be an easy target for Daesh at which point the US coalition against the Islamic State will start bombing them instead. A reduction in bombing will also allow humanitarian aid greater access to the country which will repair infrastructural damage, which can hopefully stem the tide of refugees fleeing the conflict and economically burdening neighbouring countries.

As late as September last year, President Obama was calling Yemen a bastion of successful anti-terrorism policy. Speaking in defence of “using our air power and our support for partner forces on the ground” he cited Yemen as an example of where this tactic has been “successfully pursued … for years”. The irony here is paramount, not only is Yemen not a bastion of counter terrorism, it looks set to become increasingly dominated by Daesh if the bombing campaign lauded by Obama continues. For the moment at least his comments are as ambitious as the Romans' "Arabia Felix".

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THE UN IN A MULTIPOLAR WORLD: AN OPEN OR CLOSED SHOP?

Kameel Premhid

@kameelpremhid

The UN Security Council

According to Kofi Anan, its former Secretary-General, the United Nations (UN) is founded on the ‘principle of equality’ – between people and nations. But, as I argue in this essay, the UN’s history proves quite the opposite – it legitimates the power and domination of the many by the few. As I suggest, it does so in two ways: on the one hand, it has not fundamentally changed the conduct and character of international relations and law; whereas, on the other, its very structure makes the equitable re-distribution of power impossible. To illustrate this, I examine the international system prior and subsequent to its founding. I argue that, despite the potential for change, the underlying self-interest of states – especially the UN’s permanent 5 members (P5) – makes a truly equitable UN in a multipolar world impossible.

The period immediately prior to the UN’s establishment in 1945 proves a useful point of analysis. The design, and presence or lack, of international governance structures determined the way in which international relations and law were conducted; the point being that there is an interplay between design and conduct. This point – of the shape of the system determining the conduct of the actors within it, and vice versa – is a common theme among realists, liberals, and constructivists alike: IR scholars, like Kenneth Waltz, Robert Cox, John Ikenberry and others, each from a diverse tradition of scholarship all attempt to properly define the relationship between the system and its parts. 

Hence, the First World War, the most significant and all-consuming conflict in living memory, is particularly noteworthy. While its immediate cause was Austrian intervention in Serbia – in response to the assassination of Franz Ferdinand – some suggest that the underlying factor was the spread of imperialism and the concomitant escalation of competition between rival European states. Therefore, the changing nature of the international system – mostly those who sought, or sought to retain, power – fundamentally led to the outbreak of war. European colonial powers dominated the world through empire. It was their concerns, and their competition with each other, that determined how states interacted. In this system, which was characterised by the existence of self-serving alliances and an absence of formally constituted intergovernmental organisation to, for example, prevent war, the ensuing chaos is easier to understand.

The Second World War, on the other hand, is the product of the League of Nation’s (LoN) failure. The establishment of the LoN, the first intergovernmental organisation of its kind, as a direct response to the causes of the First World War is instructive. With a primary focus on the prevention of wars, collective security, disarmament, and international dispute settlements, it was intended – through mechanisms of negotiation and crisis-aversion – to prevent such a catastrophe from occurring again.  However, in the absence of a standing army to enforce its decisions in conflicts, and without an executive capable of making binding decisions, the LoN’s heavy reliance on the Great Powers was its ultimate downfall. The non-participation of the United States and the Soviet Union aside, its treatment of members on the principle of strict equality, and the weak consequences for non-compliance, prevented the LoN from fulfilling its mandate – especially where Great Powers or their immediate allies were in a state of conflict with one another. And when they did, the LoN was powerless to intervene.

By contrast with the pre-First World War structure therefore, even though this system was highly formalised, the design of the system itself undercut its ability to function. The UN was accordingly designed with the benefit of hindsight and the intention of promoting and maintaining international order, mediate disputes between its members, promoting human rights, providing humanitarian assistance and fostering socio-economic development. Yet like its predecessor, the UN’s lofty ideals have remained elusive in practice. As many suggest, it is incapable of answering difficult questions, especially when the answers involve a dilution of the P5’s power. Three reasons persist as to why this is so, and why the prospects of any fundamental change to the existing distribution of power seem unlikely.

First, the UN has not changed the sovereign nature of states. Its activities are able to occur because states accede directly or indirectly, and retain their sovereignty, if not in an absolute sense. A multiplicity of rules exist governing which aspects of the UN’s agenda its members must, may, or can, comply with. The inclusion of ‘opt-outs’ means that on issues where states’ self-interest run contrary to international consensus, their enduring sovereign status means they can disallow the application of UN resolutions to its own affairs. North Korea’s blasé retention of nuclear weapons, Syria’s dismissal of condemnation of its use of chemical weapons, and Zimbabwe’s perpetuation of human rights abuses are just a few examples highlighting the UN’s weakness. Equally, self-interest can also be used to explain why many states do co-operate, even where they may not necessarily agree. Put crudely, states comply with the UN in order to confer benefits that specifically apply to them. They engage with the UN positively or negatively depending on what is at stake: it is rooted in the exercise of sovereignty.

Second, maintaining a focus on the Security Council, as opposed to the General Assembly, exposes one an additional structural hindrance. Whereas the former acts as the executive and is vested with real power (to make binding resolutions), the latter is largely a non-binding and advisory body. The UN’s founding Charter created this asymmetrical distribution of power because the P5 were viewed as being the most interested in the maintenance of peace and most likely to act for the greater good. That notion, as with all states, is mistaken. In times of conflict, the potential for gridlock when P5 members are at loggerheads with each other can be lethal. No better example of this exists than the Cold War: the UN’s ability to do anything effective was limited due to the veto-wielding United States and USSR’s geopolitical interests. This was so much of a problem that during the Cold War many security issues were devolved to the North Atlantic Treaty Organisation (NATO) and the Warsaw Pact. And, as with the case of the 2003 US invasion of Iraq, states either decided to act unilaterally or through mechanisms which exist outside the UN to pursue their aims.

Third, the lack of a standing army and inability to independently raise an operating budget makes it more pliable to the agenda of the P5, and a few others, who usually supplies arms, troops and funding. The spoils of war – as the original victors – means that the P5 members not only retain formalised political power. Their politically enhanced status also seems to have had a correlate effect on their economics: clearly, the ability to protect the world and maintain peace has also come with a certain ability to front the bill. As Nkrumah may have said, ‘Seek ye first the political kingdom and all else will follow.’ This means that operationally, the UN is not as independent as it may need to be. This is worrisome when P5 members act in a way that prejudices smaller, weaker, nations and where an organisation like the UN, representing the collective will of most of the world, could have the moral and political force to stop it. Effectively, by not being able to raise money through a mandatory contribution by members, means that the UN dances to the tune of whomever pulls the purse strings.

This is not to suggest that the UN has not been responsible for some positive change. Its work in the areas of humanitarian relief, in particular, is worthy of the kind of admiration it presently receives. But, it would be naïve to suggest that what the UN does and what it was originally hoped to achieve are remotely similar. Any change, has generally been within the limits of what the P5, and its other major contributors, want.

These problems arises in large part from the UN’s structure: the interests of the permanent members of the Security Council, who have a veto over the issuance of all resolutions binding on member states, are predominant. Given that permanent member status remains for most states the crucial symbol of polarity, the likelihood of fundamental reform to a system benefiting a small coterie of states seems unlikely. Thus, although multipolarity may be observable in some international theatres, the survival of the UN’s current structure tends to promote business as usual.

Even without contemplating the rise of countries new powers such as India and Germany, it is clear to see how the structure of the UN perpetuates the P5’s power and preserves itself against changes that dilute their power. And a more independent, reformed, UN is exactly what the powerful states capable of changing the system want to avoid: in the alternative, the UN represents a rival powerbase to their own. The UN has been unable to fundamentally change the character of international relations. If anything, its existence merely adds a thin veneer of legitimacy to what can otherwise, and accurately, be described as a perpetuation of the power of countries whose rule was truncated when the last bullet of the Second World War was fired. Self-interest is notably not limited to the P5 alone: for as long as the state remains sovereign, it will determine its own agenda, and strategically determine its self-interest. The UN, therefore, has little real ability to reshape the international order.