International Law and Institutions - Essay Example

Under the UN Charter there is a strict prohibition against the use of force in Article 2(4). 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. The 2 exceptions to this are firstly, the individual or collective self-defence – Article 51 - and secondlys where the UN Security Council may order use of force in response to a threat to or a breach of international peace or an act of aggression and where none of the 5 permanent members of the Security Council use their veto. (Chapter VII, Articles 39 and 42 of the UN Charter). The Security Council has primary responsibility for the maintenance of international peace and security. Since the 1990s not only has the Security Council agreed to authorize humanitarian intervention, there have also been interventions without authorization from the Security Council such as the intervention in Northern Iraq, Somalia, Bosnia, Rwanda, Haiti, Yugoslavia/Kosovo and East Timor. These latter interventions have arisen as a result of a perception of the Security Council’s failure to act or ineffective action where there has been concern about the severe deprivation of human rights. For example the failure of the UN to broker political peace in Somalia led to the US Operation Restore Hope in 1992, which for the first time in American history, saw American troops committed to a military operation for a cause completely unrelated to protecting their national interest. The operation’s goal was to open supply routes for food relief efforts and prepare the way for a UN peacekeeping force to preserve the security of these routes. This in itself is contentious as it would appear that under the charter there is no right of either legal defense or collective humanitarian intervention without Security Council authorization under existing international law. The international community is between a rock and a hard place as they seek to sustain sovereignty on the one hand, with the recognition that some states have no regard for the rule of international law, and undertake human right violations regardless. The challenge, it seems, must be to leave open the option for humanitarian intervention in extreme cases of human suffering, where the reasons for action seem morally imperative and politically sound but the Security Council is unable to act, while at the same time to avoid jeopardising in a fundamental way the existing, hard-earned, international legal order, including the central role of the Security Council.1 The Security Council is bound by the Charter. However as the US has cogently argued the Charter is too narrow. It envisaged only those situations where a state might call on the help of the international community or where international peace was threatened. It did not take into account the situations observed since then in the killing fields of Cambodia, Rwanda and Srebrenica. In 2004, 10 years after the genocide in Rwanda, the Canadian Foreign Minister, Bill Graham was reported by the BBC to have said: We lack the political will to achieve the necessary agreement on how to put in place the type of measures that will prevent a future Rwanda from happening2 Although the primary responsibility lies with the state, where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention should lead to a larger principle, that of the international responsibility to protect3. There are essentially 2 criticisms of the UN: its relevance and its structure. As can be seen from the US ignoring the UN over Iraq and the UN’s admission of failing to act in time to the obvious threat in Rwanda, there are many reasons for questioning its relevance. Its structure goes back to 1945 where the victorious powers of World War II decided to stamp their authority on the rest of the world. The world has moved on since then, even though this is not apparent from the structure of the Security Council. It is stated that the Security Council’s legitimacy would be strengthened if the Council adhere to the five general criteria for use of force (armed action) that were proposed by the UN High-level Panel in its report from December 20044: 1. Serious threat. There must be a serious threat prima facie justifying the use of force. 2. Proper purpose. The primary purpose of military force must be to avert the threat. 3. Last resort. There must be reasonable grounds for believing that non-military sanctions will not succeed in eliminating the threat. 4. Proportional means. The use of military force must include only the minimum necessary to avert the threat. 5. Balance of consequences. There must be a reasonable prospect that the military action will succeed and will not do more harm than good.   The report also called for an enlarged Security Council (up to 24 members from the current 5 permanent members). Unfortunately an attempt by Japan, Germany, India and Brazil to become permanent members of the Security Council was rejected by the African Union, China and the US earlier this year5. It begs the question if Japan and Germany couldn’t get on to the Security Council, which nations could? In its definition of the word ‘threats’ the report envisages a UN which would be free to act in social, environmental and medical disasters also. However, any change to the Security Council would require a Charter change. This requires a two-thirds vote in the General Assembly, plus ratification by two-thirds of member states and acceptance by all veto holders. The stance of the United States therefore would be crucial. Unfortunately the latest ambassador to the UN is the controversial John Bolton who prior to his appointment was described as: antithetical to the U.N.’s peacekeeping mission. His tunnel vision, lack of diplomacy and borderline xenophobia would only further alienate allies already alienated by the war in Iraq which he helped engineer. To make John Bolton U.S. ambassador to the United Nations would dangerously fray the United States’ already eroding relations with the rest of the world6. Clearly Bolton was not the popular choice for the post, having always been extremely vocal in criticising the UN. Leading up to the September 2005 Summit he was attempting to use the US’s leverage as the largest contributor (22%) to the UN’s budget to force through more than 700 changes to the agreed reforms by blocking the $3.6 billion biennial 2006-7 budget. Amongst other things Bolton wanted a series of management reforms such as the creation of an ethics office, increased oversight of UN activities and independence for the audit office. He made it clear that the US does not need the UN and ‘could seek an alternative to the UN for solving international problems in future’.7 In his September 2005 report, In Larger Freedom: Towards Development, Security And Human Rights For All, the current Secretary General of the UN, Koffi Annan, outlined the new world order and the role of the UN if it is to retain relevance: The threats to peace and security in the twenty-first century include not just international war and conflict but civil violence, organized crime, terrorism and weapons of mass destruction. They also include poverty, deadly infectious disease and environmental degradation since these can have equally catastrophic consequences….8 Where threats are not imminent but latent, the Charter gives full authority to the Security Council to use military force, including preventively, to preserve international peace and security. As to genocide, ethnic cleansing and other such crimes against humanity, are they not also threats to international peace and security, against which humanity should be able to look to the Security Council for protection?9 I believe that we must embrace the responsibility to protect, and, when necessary, we must act on it. 10 Annan argues that there is no need to broaden the Security Council’s remit, since the Charter allows the use of military force to preserve peace and security, but there is a need to ‘make it work better … when deciding whether to authorize or mandate the use of force.11’ hence making it easier for it to act in a way that means that member states do not feel the need to act unilaterally. Annan seems to be saying that the use of force is mandated by the Charter in specific instances under Chapter VII, and that the use of force in this context would not be a violation of international law in the situations Annan outlines in his report. Whilst the legal position seems clear, ultimately however, even if the Secretary-General’s report was adopted whole-heartedly at some time in the future the UN can be no more effective than the political will of its member states – particularly the permanent members to the Security Council with their right of veto -- to mobilize, equip and fund it. Danish Institute for International Studies, Department of Conflict and Security Studies, (2005), New Threats and the Use of Force. Available at: http://www.diis.dk/sw12399.asp Danish Institute of International Affairs (DUPI), (1999) Humanitarian Intervention. Legal and political aspects. Copenhagen,. Available at: http://www.dupi.dk/fmp4.0/web/en1224.html Editorial: U.N. Ambassador Nominee Wrong for Job, Delaware Times 18 April 2005 Evans, Gareth, (2004), INTERNATIONAL LAW AND THE UNITED NATIONS: THE USE OF MILITARY FORCE. Available at http://64.233.183.104/search?q=cache:YvzLHUXbsr0J:www.boell.de/downloads/keynotespeech.pdf+%2Bforce+%2B%22international+legal+order%22&hl=en High-level Panel on Threats, Challenges and Change, December 2004, A More Secure World: Our Shared Responsibility (A/59/565) In Larger Freedom: Towards Development, Security And Human Rights For All, Report of the Secretary-General of the United Nations for decision by Heads of State and Government in September 2005. Available at: http://www.un.org/largerfreedom/ Schlesinger, Stephen, The Perils of UN Reform, The Nation 22 September 2005 Sherwell, Phillip, Britain opposes Bolton tactic on UN reform, The Telegraph 27 November 2005 Simpson, Gerry, (2004), GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER. New York: Cambridge University Press, 2004 UN Chiefs Rwanda Genocide Regret, 26 March 2004. Available at: http://news.bbc.co.uk/1/hi/world/africa/3573229.stm Read More