Public International Law - Assignment Example

Public International Law 2007 Outline: A) International legal system B) Recipro principle underlying international law. C) Problems of adjudication and enforcement. Different mechanisms of ‘enforcement’ D) The rule of reciprocity as a way to abuse: 1. reciprocal trade policy; 2. dollar diplomacy policy; 3. ‘democracy donors’ and promotion of democracy; E) principle of reciprocity and customary rules. F) Conclusion Globalization and high level of integration and cooperation between the countries suggested the need to coordinate and regulate the whole scope of international relations. In request to this need the international legal system with its legal principles was formed. International law comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations and the African Union (formerly O.A.U). (The nature of international law) Rules of international law cover almost every facet of inter-state activity (the use of the sea, outer space and Antarctica, international telecommunications, postal services, the carriage of goods and passengers by air and the transfer of money) and is a primary tool for the conduct of international trade. (The nature of international law) Every state is interested in security and a stable environment for its development. That’s why international law is supposed to ensure secure international relations development. The basis of international law is the concern of the rights and duties of the states. In the system of values underlying international law is the principle of legal equals but not legal superiority. It is a principle of international law: in the context of general customary international law any state claiming a right under that law has to accord all other states has same right. (Byers) That’s why international law is based on reciprocity principle which is essential in international law due to the dominant role played by customary law among the sources of international law. (Parisis & Ghei, 2002) The concept of reciprocity is fundamental to bilateralism. It means that equal social partners establish bilateral relationships that are not unidirectional but involve at least some element of quid pro quo. This concept of reciprocity may be responsible for a great deal of inter-state co-operation or exchange, outside or in addition to any international legal obligations. (Byers) The motivation of individuals is based not only on the model of self-interest but involves the concepts of fairness and reciprocity. The external enforcement mechanisms, such as a legal system, or a threat of coercion are not always needed. The vast body of literature (Axelrod R., Berg J.,) suggests that reciprocity is an essential element of human behavior. (Parisis & Ghei, 2002) Reciprocity condition (role reversibility and repeat interactions) is the reason why many customs develop into binding legal practice. Each State involved into transaction and undertaking them repeatedly can find itself on either end of a transaction. For example, the Law of the Sea supposes that the state could be the one exercising sovereignty over the territorial sea, or it could be the state of the flag of the ship. Both states are in the relation of interdependence: one cannot limit innocent passage through its own territorial sea without being limited by other states in the future. (Parisis & Ghei, 2002) The problems of adjudication and enforcement make international law a ‘weak’ law. The conduct of the states is not easy to regulate and apply law enforcement because of the various degrees of power they own and the possibility of threat - economic, political or military. The best option for regulation of the states’ conduct is to accept voluntary enforcement of the law. Despite the weak nature of the international law there is the legal body which enforces sanctions and penalties on malefactors of the international peace. It’s the Security Council. However, in many cases the Council fails to enforce even the most fundamental of international norms if the interests of the Big Five are directly engaged. The Security Council is paralyzed when it comes to such well-known to international community issues as Afghanistan, Iraq, Chechnya. Despite this inadequacies, international relations can be regulated by different mechanisms of ‘enforcement’ such as termination of diplomatic relations, restriction of economic aid or cancellation of supply agreements, the expulsion or suspension from inter-governmental organizations, trading restrictions, etc. (The nature of international law) Non-recognition of the state can also be a form of regulation of relations in the international community. If a new state breaches the principles of international law, the doctrine of non-recognition of illegal or immoral factual known also as the Stimson Doctrine takes place to harmonize the situation. The examples of its implementation are non-recognition of Rhodesia in 1965 and non-recognition by the USA annexation of three Baltic States to the Soviet Union. In some cases even if the recognition was stated, it can be withdrawn, which implies breaking of diplomatic relations between states /Diplomatic Recognition, 2006/. Nowadays recognition of states in a matter of fulfilment of a number of conditions: observance of the UN Charter and maintenance of human rights and democratic principles /Diplomatic Recognition, 2006/. In matter of recognition of new states and governments the international community stands on the position of democracy, non-intervention, respect of self-determination and rights. (Grant, 1999) International law contains two concepts that are linked to reciprocity. The first concept is retorsion, which consists of a states response to another states unfriendly but legal act like declaring the diplomats of the opposing state persona non grata because of the expulsion of another state’s diplomats. The second concept is reprisal: when a state responds to an illegal act by another state. For example, when one state violates a treaty, the other party has the right to withdraw from the treaty. (Rever) The examples in the international relations history are numerous: break of diplomatic relations between the United Kingdom with Argentina for Falkland Islands invasion of the latter, suspension of Nigeria the Commonwealth in 1995 for the violation of human rights norms. Again there is evidence that only powerful states favor the advantage of using ‘enforcement’ mechanisms or sanctions effectively because the access to its markets (the reciprocal condition) is a valued resource. (Parisis & Ghei, 2002) Thus the rule of reciprocity meant to be a basic concept of equity and equilibrium, in the context of international trade, becomes a “way of institutionalizing permanent inequality.” (Carlsen) The matter is that the different nations and their productive sectors are not the same while the major players use the same strategies. The US has biggest market in the world and a great export capacity derived from the production of huge surpluses. The other large-stakes players such as the WTO, the European Union “share the basic strategies of forcing open new markets for its goods, extending intellectual property rights, and transferring sectors from the public to the private realm.” (Carlsen) In this case more powerful countries are ripe for abuse. For example, the US often used Section 301 of Trade Act of 1974 which allows imposing tariffs unilaterally on the imports of a country the ‘unjustifiable’ transgressions of which restricted access for US goods. The evidence shows that the US used Section 301 when the sanctioned state had failed to lower its trade barriers. (Parisis & Ghei, 2002) National trade policy based on reciprocal concessions is self defeating as it fails to raise living standards of its citizens. The reciprocal trade policy is strongly supported by the developing countries or countries in other words which have insufficient access to capital to facilitate development. (Pendleton, 1999) According to economic theory unilateral trade liberalisation increases the economic welfare of the liberalising country. Along with monetary adjustments unilateral trade liberalisation generate similar benefits in the form of compensatory payments and employment effects as reciprocal trade liberalisation. (Slaughter, 1995) The main reasons why governments prefer to liberalise trade through reciprocal agreements, rather than unilaterally, are political and legal rather than economic (Petersmann, 1994, p.31) If you are not one of the largest and profitable markets reciprocity in trade policy is most likely to fail. For most developed, and all developing and underdeveloped nations it is better to give as favorable terms to foreign traders as the citizens, so that foreign capital and investments will flow freely. (Cox & Sinclair, 1996) Tariffs, subsidies and bounties and other market distortions hamper or deny market access and lower living standards as well as increasing unemployment. (Pendleton, 1999) There are some other policies, which do not match into the concept of international justice. The example of this is dollar diplomacy, initially started by the USA to use economic power for the sake of political influence on other countries. Now this term concerns other countries like Great Britain, Germany, Denmark, which use aid and donor grants to support favourable part. /Dollar Diplomacy, 2006/. According to some researches, in 2005 the USA provided funding for about 5,000 non-governmental organizations in different parts of the world. In spite of all good intentions, dollar diplomacy look more like black propaganda. This resulted in 2005 decision of Russia to amend a law, restricting third parties to accept foreign funds /Dollar Diplomacy, 2006/. The vivid example of the dollar diplomacy is US policy concerning Pridnestrovie. The USA supported Moldavian claim for keeping Pridnestrovie as the part of its territory. After the failure of Moldavian invasion in 1992, the struggle takes more peaceful form of clandestine propaganda war. /Dollar Diplomacy: U.S. Embassy, 2006 /. This situation shows the real purpose of American dollar diplomacy, which restricts independence and nation-building in Pridnestrovie. It looks as though for fifteen years U.S. taxpayers gave their money for support of Romanian or Moldovan activists, who are in favour of keeping Pridnestrovie under the control of Moldova /Dollar Diplomacy: U.S. Embassy, 2006 /. It is generally believed that ‘democratic states’ attempt to extend democratic norms and in such a way to export democracy. The democratic peace debates start with the question of reasons why some states use or do not use force in their relations. The reasons should be searched not in peaceful character or domestic political systems or spread of liberal norms but “in geo-strategic and political economic relations that buttress international state and capitalist power in hegemonic, i.e. non-violent ways.” (Barkawi & Laffey, 1999) The logic of these activities is simple. If democracies do not war with one another this should be employed to make the world more peaceful. This relation between ‘democracy’ and ‘war’ seems to be employed to promote democracy by the US and other Western countries to other nations because of the peaceful propensities of republics. Meanwhile the real goal of ‘democracy donors’ is to protect and extend property rights and produce ‘market democracies.’ Recent Western policy brings with it “the project of liberal ordering which can be framed as the production of liberal spaces, democratic subjects and institutions to administer them.” (Barkawi & Laffey, 1999) Force in this new context is used to defend and expand economic political liberalism in the guise of democracy all over the world. The principle of reciprocity may also be used by individual states to influence the development, maintenance or change of particular customary rules. (Byers) For example, the Truman Proclamation issued in 1945 by President Harry Truman with Respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf. Despite the novelty and inconsistency of the Proclamation with existing law other states rapidly adopted similar proclamations concerning continental shelves of their own. Later on it became a custom being confirmed in 1958 by its codification in the Geneva Convention on the Continental Shelf. The state uses the principle of reciprocity to transform its claims and the responses of other states, into something from which most states could benefit but most likely they would not agree to it if initially the claims were directly presented. The reason for the success of the Truman Proclamation proves the assumption concerning the ability of the powerful states to impact international law practices. It is the position of the United States as the world’s most powerful state at the time of the claims. (Byers) It is true that international law being based on reciprocity principle proclaims the equality of all states and modern interdependent world is interested in a stable environment for the international relations development. Reciprocity is considered to be a tool to provide a stable and mutually beneficial environment for functioning of the states. However, on the other hand reciprocity principle and the sanctions work well for the benefit of powerful states. The reciprocity meant to be a basic concept of equity and equilibrium turns to be the field for the abuses to flourish. The international law is a ‘weak’ law as states are powerful in a different degree and they may pose economic, political or military threat to each other. Despite the existence of different mechanisms of ‘enforcement’ such as termination of diplomatic relations or trading restrictions, powerful states have an advantage in usage of enforcement’ mechanisms or sanctions. That’s why powerful countries are ripe for abuse. The examples of such abuses by more powerful international players are numerous: the use by the US of Section 301 of Trade Act of 1974 to induce other states to lower its barriers or Prednistroviy conflict. That’s why the question of the international law as a means of ordering relations of self-reliant states fails to be true. International law is more useful in promotion of international cooperation and putting together efforts in solving global problems. References Barkawi, T. & Laffey, M. 1999, “The Imperial Peace: Democracy, Force and Globalization. European Journal of International Relations”, Vol. 5, pp. 403–434. Brecher, J. & Costello, T. 1994, Global Village or Global Pillage: Economic Reconstruction from the Bottom Up. Boston, South End Press. Byers, M. Reciprocity and the Making of International Environmental Law. School of Law. Duke University. Carlsen, L. Powerful Nations Try to Extend Special Privileges. What’s at Play at the WTO. Available from /www.progress.org/2005/fpif72.htm retr. 22 March, 2007 Cox, R. & Sinclair, W. T. J. 1996, Approaches to World Order. Cambridge, Cambridge University Press. Diplomatic Recognition. [Online]. Available from: retr. 22 March 2007 Dollar Diplomacy. [Online]. Available from: retr. 22 March 2007 Dollar Diplomacy: U.S. Embassy funds anti-independence propaganda. Public disclosure documents, U.S. Embassy, 2006. Grant, T. D. 1999, The Recognition of States: Law and Practice in Debate and Evolution. Oxford. The nature of international law and the international system. Available from: /www.oup.com/uk/booksites/content/0199260729/dixon_ch retr. 21 March, 2007 Macmillan, J. 1996, “Democracies don’t Fight: A Case of the Wrong Research Agenda”. Review of International Studies, 22, pp. 275–99. Parisis, F. & Ghei, N. 2002, The role of reciprocity in international law. George Mason University School of Law. Pendleton, M. 1999, Our Allegiance - Australians Or Global Citizens? E Law. Murdoch University, Vol. 6. Num. 3 Petersmann, U. 1994, Why Do Governments Need the Uruguay Round Agreements, NAFTA and EEA? Swiss Review of International Economic Relations p. 31. Pitts, J. Boundaries of International Law: Nineteenth-Century Debates Department of Politics. Princeton University Recognition of States and Governments. [Online]. Available from: < http://www.eda.admin.ch > retr. 22 March, 2007 Rever, J.-H. Reciprocity in Law and Anthropology. Fellow Kings College London, Centre of European Law. Slaughter, A.-M. 1995, International Law in a World of Liberal States. European Journal of International Law 6, pp. 503-538 Read More