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Sunday, October 10, 2010

Optional Focus Study 2: World Order

1)      Key Legal Concepts and Features of the Legal System:
a)      The Need For World Order:
i)        Forms of Conflict:
(1)    Conventional Warfare:
(a)    Large number of troops in organised units with extensive use of equipment
(b)   Arose from development of the nation state
(c)    Ability of government to create a vast standing army
(2)    Guerrilla warfare:
(a)    Part-time fighters, small groups, isolated from organised command structure
(b)   Often substandard or stolen equipment
(c)    Various hit and run tactics, disorganised ad difficult to find. Effective against conventional warfare
(3)    Nuclear Warfare:
(a)    Huge death toll during WWII lead to development of a weapon that could establish dominance and ensure quick victory
(b)   Used only twice in conflict. Japan in Nagasaki and Hiroshima
(c)    Most cost effective weapon, capable of mass-destruction, intended for attacking concentrations of civilians
(d)   Most nations participate in International agreements to reduce stock of nuclear weapons
(i)     Two nations not included are India and Pakistan. Fighting over Kashmir province since 1950s
(e)   Another concern is former soviet Union weapons in hands of terrorists
ii)      Expansionism:
(1)    Attempt by nation to expand size of territory or to increase influence over the world community
(2)    Creates unrest and dissent in other nations often leads to large scale conflicts
(3)    Few now live under Colonial rule. Divide-and-rule policy in which ethnic groups were broken up so they would not threaten their colonial masters
(a)    Placing traditional rivals together encouraged them to fight each other rather than the colonial power
iii)    Growth of Interest in Limiting War in Human Society:
(1)    After WWII shift to more peaceful dispute resolutions, several International agreements have been promulgated
(2)    League of Nations Covenant:
(a)    Promote International Cooperation and achieve International peace and security
(b)   Methods include discriminate, enforcement by common action, arbitration and mediation
(3)    Pact of Paris (1928):
(a)    Initiative by League of Nations
(b)   Renounced war ‘as an instrument of national policy in their relations with one another’
(c)    Applied almost universally, 65 nation-states signed
(4)    UN charter (1945) two fundamental principles:
(a)    Art. 2(3): All members shall settle their int. Disputes by peaceful means
(b)   Art. 2(4): All members shall refrain in their Int. Relations from threat or use of force
iv)    Interdependence:
(1)    World becoming increasingly connected, development of advanced technology, increase in world trade and Int. Transport
(2)    Nations still hold their cultures and languages, while increasing commonality. E.g. 23,000 McDonalds Worldwide
v)      Impact of Conflict on Indigenous Peoples and Local Communities:
(1)    Indigenous people throughout history have suffered greatly from conflict
(a)    Tasmanian Aborigines almost completely killed by European extermination and diseases
(2)    Rights of Indigenous worldwide have been subordinated for economic and political gain
(3)    Yanomami tribe in Amazon affected by mining and deforestation since 1980s
(4)    Expansionist activities are declining, indigenous numbers slowly increasing. Indigenous groups are fighting back and lobbying governments for protection of their rights
b)      The Main Ways of Working for World Order:
i)        World Government:
(1)    Entire global government replacing the nation state is most ambitious proposal for achieving world order
(a)    Argued would open door to world domination
(b)   Undermine rights of people to self-determination
(c)    Require nation-states to give up sovereignty
(2)    Not possible for a single world government to respond to needs of individuals
ii)      World/Regional Federation:
(1)    Remove threat of global domination by bringing people together in common federation
(2)    E.g. Similar, more detailed version of the UN
(3)    E.g. Germany in the late 19th Cent., Australia 1901 lead to formation of nation state
iii)    Peaceful-Enforcement and Peacekeeping:
(1)    Peace-enforcement:
(a)    UN formed a special committee (Military Staff Committee under UN Security Council)
(i)     Security council consists of 5 permanent members: US, France, GB, Russia, China (Victors of WWII)
(b)   Military Staff Committee uses forces of member nations to enforce peace
(i)     UN pays for operations, troops under command of Un at all times
(2)    Peacekeeping:
(a)    Peacekeepers under command of national defence forces. Nations cannot be forced to contribute to peacekeeping ops
(i)     Creates difficulty in putting large forces together
(ii)   UN Security-General must request assistance
(b)   Since 1990s increase use of Civilian police in peacekeeping ops
(i)     2006: 70,000 military & police personnel from 107 nations in peacekeeping missions
(3)    Regulation of the Conduct of Hostilities:
(a)    1863 Int. Conference in Geneva, Switzerland formed Int. Red cross to care for wounded and sick in war
(i)     First Geneva Convention made following year
(b)   Hague Conference 1899 and 1907 lead to establish permanent Court of Arbitration to help nations resolve disputes peacefully
(c)    Geneva Convention amendments:
(i)     1949: Treatment of prisoners, treatment of Civilians
(ii)   1977: Victims of Int. Armed conflict, Victims of Internal Armed Conflict
(4)    Humanitarian Intervention:
(a)    UN Charter (Art.2) states UN will not intervene in domestic affairs of a nation state. Known as ‘principle of sovereign equality of nations’
(i)     Exceptions include:
1.       UN Sec. Coun. Decides actions of a nation pose a threat to Int. Security and peace (Art.39)
2.       (Art. 41) Nation intervenes to protect citizens (US in late 90s sent troops to Liberia to evacuate US citizens)
3.       Nation required to submit to inspections for outlaws weapons (Art. 42)
(b)   Aid can only be delivered to nation with nations consent. Citizens can often be denied access
(5)    Implementation of International Agreements:
(a)    State sovereignty:
(i)     No government can be forced to enter into a treaty, and have control over their own affairs
(ii)   Concept developed in 1648 by the Peace of Westphalia
(b)   Role of National governments in being the vehicle to implement World order:
(i)     State sovereignty is a celebration of diversity
(ii)   Each nation has a unique culture, history and social code of conduct
1.       Each will have a unique legal system
(iii) State sovereignty guarantees a nation is answerable to no-one but itself, prevents one nation from imposing its laws on another
(c)    Role of National governments in being an obstacle to accepting world order agreements:
(i)     Sovereignty simultaneously a strength and weakness, acts as obstacle to implementation of world order
(ii)   Law needs to be enforced by an overriding authority, none exists in Int. Law
(iii) Nations only bound when they agree to be
(iv)  UN only has moral authority
2)      Legal Issues and Remedies:
a)      The Scope for Achieving World Order:
i)        Force:
(1)    International Lawyers and Judges interpret Art.2(4) of UN Charter differently
(a)    Some believe it outlaws using force in any circumstance
(b)   Others say allowed for self-defence or humanitarian reasons
ii)      International Agreements:
(1)    1969 and 86 Vienna Conventions on the Law of treaties defines a treaty as: International Agreement conducted between states in written form and governed by Int. Law
(2)    Art 102. Of UN Charter requires all Bilateral and Multilateral treaties be registered so disputes be brought before UN or ICJ
(3)    New philosophical rule is created, known as ‘jus cogens’
(a)    All treaties that conflict with this new rule are declared void in international law. E.g. Philosophies against slavery changed after 18th & 19th Cent.
(4)    South Pacific Nuclear-Free Zone Treaty (1986)
(a)    Bans detonation of all nuclear devices
(5)    Geneva Protocol (1925):
(a)    Bans use of gases and other biological warfare
(b)   Signed by almost all nations
iii)    International Customary Law:
(1)    Two Criteria:
(a)    Customs is uniformly practiced in many nations
(b)   Nations accept it as being legally binding
(2)    Until recently, all International law was customary law
(3)    Treaty law now more important means of est. International law
(4)    E.g. Airspace largely based on customary law
iv)    The United Nations:
(1)    Created at conclusion of WWII, commencing 24th Oct. 1945
(2)    Single most important and powerful body in terms of creation, development and maintenance of world order through International law
(3)    Vital role in settlement of disputes and est. World order
(4)    Occurs through:
(a)    UN peacekeeping force
(b)   Resolutions of the UN Security Council
(c)    ICJ
v)      Regional Inter-governmental Organisations:
(1)    Members of UN and regional organisations are to attempt to settle disputes in regional organisation first
(2)    Organisation of African Unity (OAU)
(a)    Has commission of mediation, conciliation and arbitration, although yet to be used
(b)   Newer formally used commission although has acted as impartial third party e.g. Algeria and Morocco in 1963
(3)    Arab League:
(a)    Est. 1945 by 7 Middle East States, increased to 22
(b)   Aim to increase co-op between member states, relying on informal conciliation
(c)    Formed inter-Arab peacekeeping force in 1967 to maintain peace between Kuwait and Iraq
vi)    Non-Governmental Organisations (NGOs):
(1)    Provide advice to Governments and UN
(2)    Play leading role in providing assistance to the needy on the ground
(3)    E.g’s:
(a)    International Red Cross and Red Crescent Movement:
(i)     Comprises Red Cross and Red Crescent Societies around the world
(ii)   Engage in different activities e.g. Blood donations, Assisting POWs
(b)   Medecins Sans Frontieres (MSF):
(i)     One of largest and most active organisations that supply emergency medical aid
(ii)   Independent of government and religious and economic powers
(iii) Funding from private donations
vii)  Media:
(1)    Key role in peaceful settlement of disputes and est. World order
(2)    Power to generate public interest in conflicts, thereby placing pressures on government
(3)    E.g. Media broadcast on Darfur region of Sudan in 2004, influenced International community action to protect innocent people
(4)    Not always constructive e.g. Creating fears of terrorism
b)      The Role of International Tribunals:
i)        International Court of Justice (ICJ):
(1)    Principle Judicial organisation of the UN
(2)    15 judges each representing a different geographical region
(3)    Primary role to solve disputes before it by member nations and advise on matters of International law
(4)    Only nations have standing before ICJ, and if they choose to recognise ICJ jurisdiction
(5)    Three ways of Jurisdiction:
(a)    Special Agreement: Agreement in relation to specific dispute
(b)   Through a clause in a Treaty: Nations agree to accept jurisdiction of ICJ in disputes relating to the treaty
(c)    Unilateral Declaration: Some nations have agreed to accept jurisdiction of the ICJ in all matters. 63 nations currently have Uni. Decs.
(6)    Able to give objective impartial advice to solve disputes in a peaceful matter
(7)    Protection of human rights through the cases brought to ICJ
ii)      Other International Tribunals:
(1)    No permanent war crimes tribunal. UN Security Council forms ad-hoc tribunals.
(2)    Permanent Court of Arbitration: Panel of nominated persons make a ruling that is binding. Not a formal court
(3)    International Court for the settlement of Investment Disputes:
(a)    Right to hear any disputes over investment between nations, providing nations agree to allow the centre to resolve dispute. Arbitrates disputes
(4)    Court of Arbitration of the International Chamber of Commerce:
(a)    Many economic treaties specify this court as an arbitrator of disputes between nations
c)       The Role of Australia’s Federal Structure in determining Australia’s response to the Search for World Order:
i)        Section 51 of the Australian Constitution grants Commonwealth exclusive powers in the area of external affairs
ii)      Right to enter any International agreement, treaty or protocol without consult with state and territory government, though agreed if concerns state government rights
iii)    National Policies:
(1)    Any International treaty or agreement must be ratified (codified into Aus law)
(2)    Lead to est. of the HRC and Anti-discrimination Commission
iv)    Australia maintained strong support for Un peacekeeping
(1)    Mainly Asia-pacific region
(2)    E.g. 2003 Solomon Islands to help authorities maintain order after armed militia attempted to seize control
(a)    2008: Presidential election in East-Timor, presidential assassination attempt
d)      Non-Legal Remedies:
i)        Force:
(1)    UN Charter outlaws use of force except in self-defence
(2)    May be acceptable means of protecting human rights:
(a)    Doctrine of Humanitarian Intervention:
(i)     Right of one nation to use force against another when that nation is denying fundamental human rights to large numbers of people
ii)      Persuasion:
(1)    Important way to encourage nations to follow the principles of Int. Law e.g. Australia reacted to overthrow of democratic Fiji government in 2000
(2)    Use of trade sanctions to persuade negotiations. E.g. North Korea developing nuclear weapons in 2006
iii)    Political negotiations:
(1)    Simplest and most frequently used
(2)    Does not involve third party such as UN
(3)    Nations affected determine outcomes and solutions themselves, thereby more likely to abide by agreement
(4)    May not always succeed e.g. Israel & Pakistan
(5)    Successes include:
(a)    US and former Soviet Union in 1980s
(b)   Good will discussions between Egypt and Israel in 1980s
3)      Morality, Ethics and Commitment to the Law:
a)      The extent to which law reflects moral and ethical standards:
i)        Tends to reflect the ‘norms’ that are accepted morally and ethically
ii)      International treaties are a reflection of the moral standards that apply at time of signing. Standards change over time
(1)    Use of ‘jus cogens’ enables changes in treaties
iii)    Certain treaties based on norms at the time set a standard of conduct or behaviour e.g. First Geneva Convention
iv)    Importance of morals and ethics can be seen in way International Customary law has developed. E.g. International Customary Sea Law – Tampa Incident
b)      Commitment to the Law – The Nature of Compliance and non-compliance:
i)        World order can only be achieved through the commitment and support of the vast majority of nations
(1)    E.g. Geneva Convention
ii)      Many treaties less successful due to lack of commitment from supporting nations
iii)    Sovereignty allows a nation to choose when it can/cannot be held accountable for their actions
4)      Effectiveness of the Law:
a)      Factors to be considered when evaluating the effectiveness of law in achieving justice:
i)        For Individuals:
(1)    Equality:
(a)    International law focuses on nation state
(b)   Individuals may have protection when their government ratifies a treaty
(c)    Individuals cannot approach ICJ but can use UN HRC
(d)   Individuals cannot claim freedom from prosecution when they breach International laws
(i)     Successful prosecution relies on recognition and acceptance by the nation state
(2)    Accessibility:
(a)    Individuals cannot freely access the UN and its instruments for resolution of grievances with government
(b)   Groups can have some access. E.g. Aboriginals seeking self-determination
(3)    Enforceability:
(a)    Two aspects:
(i)     First is whether UN instruments can directly apply to individuals in terms of protection
(ii)   Second whether the UN can prosecute individuals who breach international law
1.       Generally when a person is in position of power within government and is over thrown
(b)   Difficulty when individual does not recognise authority of UN
(4)    Resource Efficiency:
(a)    Resources fairly minimal, except closed hearings by the HRC
(b)   Most resources are applied to ensure nation-state compliance
(5)    Protection and Recognition of Individual Rights:
(a)    Generally well protected under  international human rights law through the following UN Declarations:
(i)     Universal Declaration of Human Rights (1948)
(ii)   ICOSCR
(iii) ICCPR
(iv)  CROC (1989) etc.
ii)      For Society: How well nations uphold world order internally
(1)      Resource Efficiency:
(a)    Allocating money towards listening to the community (Domestic & internationally)
(b)   In Australia Federal Government responsible for both signing and ratifying International agreements
(c)    Requires a nation do the following:
(i)     Sign International UN agreement
(ii)   Uphold International Customary Law
(iii) Ratify International Law into Domestic legislation
(iv)  Ensure domestic legislation consistent with international Conventions and protocols
(v)    Ensure all levels of government pass legislation consistent with International law
(vi)  Recognise authority and jurisdiction of ICJ and ICC
(vii)                        Allow inspection by UN committee to ensure global compliance
(viii)                      Abide by rulings made by international tribunals
(2)    Law as a reflection of community standards and expectations:
(a)    Does not always reflect community standards and expectations in every nation-state
(i)     Different cultural backgrounds, religious variations
(b)   International law implemented with minimal variation
(i)     Nation may vary their compliance to suit domestic political needs
1.       E.g. US and Guantanamo Bay detainees breaches Geneva Convention yet reflects majority US standards relating to treatment of POWs
(3)    Opportunities for Enforcement:
(a)    Two levels within Nation state:
(i)     Domestic Judicial System hearing matters pertaining to breaches of domestic law
(b)   ICJ Rulings determining legality of nation state actions against its own people
(c)    To be effective nation must recognise its Int. Obligations and attempt to carry them out
(d)   UN and International Tribunals can enforce Int. Law only when its jurisdiction is recognised and accepted
(4)    Appeals and Review:
(a)    Three avenues of review:
(i)     Administrative Review: government decisions reviewed by administrative appeal
(ii)   Judicial Review: Government decision subjected to review
(iii) Appeal to UN Committee
(b)   Some UN Committees will hear societies and committee but cannot force nation-state to comply
(5)    Balance of Individual Rights and Values and Community Rights and Values:
(a)    Balance required between individual and community
(b)   Individual:
(i)     Individuals have fundamental entitlements which should be up held
(ii)   Minority groups have particular rights
(iii) Minors and other vulnerable groups have rights which nation state should recognise
(c)    Community:
(i)     General/majority rights and values are generally applied
(ii)   Government seeks stability by representing majority
(iii) Political autonomy and self-determination reduces power of nation state
iii)    For Nation State: Effectiveness measured with respect to relationship with other nation states
(1)    Recognition of Nation-State:
(a)    Recognised as state when governments accept legitimacy of political authority and enter into dialogue with the nation
(b)   Characterised by membership in to UN, agreement to abide UN Charter
(c)    Formal relationship with other nations
(2)    Sovereignty:
(a)    Sovereignty means nation-state is not answerable to any higher authority
(b)   Government in power responsible for the nation and its people
(c)    Art. 2(7) of UN Charter forbids intervention without permission of nation-state government
(d)   Nation not compelled to uphold International law as it is not binding
(i)     Moral force acts as pressure to abide
(e)   Sovereignty should not be allowed when serious breach of International law occurs
(3)    Interdependence of nation-state:
(a)    Nations rely on one another
(b)   Includes: Exchange of essential G&S. Freedom of labour movements, cultural and educational interchange and collaboration, presence of envoys
(c)    Basis is on cultural understanding, acceptance and tolerance of diversity
(4)    Enforceability:
(a)    Enforcement of World order agreements is a role of UN Security Council
(i)     Termed Collective/Centralised enforcement
(ii)   Use of force or sanctions, withdrawal from diplomatic relations
(b)   Limited effectiveness due to veto powers 5 permanent member (China, Russia, France, GB, USA) who can vote against a proposal
(c)    UN committee has responsibility for monitoring compliance with International Covenants
(d)   ICJ can hear matters but only accepted and applied if state acknowledges jurisdiction
(i)     Moral force rather than legal
(5)    Equality of Treatment between nation states:
(a)    Each nation accepted as sovereign and self-determining
(i)     Each should have equal power in determination of world order agreements
(b)   Different levels of power due to:
(i)     Poorer nations cannot afford to lobby effectively
(ii)   Some nations do not have long history with UN
(iii) Different capacities for donating funds to UN
(iv)  Different levels of wealth and power globally
(v)    Presence in Security Council or other UN committees
(c)    UN has one vote one nation system but wealthy nations may sway others in their favour
(6)    Addressing inequality between nation-states:
(a)    Equality available through:
(i)     UN one vote one nation principle
(ii)   Creation of regional agreements to give voice to smaller nations
(iii) Regional co-op and input to resolve regional problems
(b)   Inequality from foreign aid and development grants:
(i)     Wealthy nations providing assistance to poorer nations without repayment
1.       Poorer become indebted to richer and lose independence
(7)    Balance of International Standards and Expectations of Nation state:
(a)    Great diversity among nations
(b)   UN does not always recognise the diversity, thus expectations cannot always meet international standards
(c)    International law can be slow to create to integrate diverse perspectives
5)      Law Reform:
a)      The Agencies of Reform and the conditions that give rise to the need for reform:
i)        Agencies of reform in the International law are:
(1)    Pressure from individual nation-states or regional groups in UN
(2)    Advice and urging of NGOs with insight in different areas of law
(3)    Opinions of International lawyers raised at International law conferences
(4)    Ideas of academics interested and specialised in International law
(5)    UN is an agency of reform itself
ii)      Conditions that give rise to the need for reform:
(1)    Law reform occurs when following conditions arise:
(a)    Widespread recognition of the need for a law to be changed
(b)   Widespread need for the creation of international law in an area no law exists e.g. Technology (Broadband)
(c)    Global social changes making a law inadequate
(d)   Humanitarian concerns giving rise to the need for reform
b)      Law Reform Commissions:
i)         Do not exist at international level, only at domestic
ii)      Take the role of ensuring high level of compliance with international obligations
(1)    Ratification occurs and up held
c)       Parliament:
i)        Individual nation-states are responsible for ratifying international agreements they have signed
(1)    Can implement laws consistent with changes in international law
(2)    Report to relevant committees on their level of compliance
d)      Courts:
i)        Three levels on international law:
(1)    UN Courts: ICJ and ICC
(2)    Regional courts e.g. European Court of Justice
(3)    Nation-State Court
ii)      In ECJ: principle of supremacy means EU laws override national laws if there is inconsistency
e)      Changing Social Values:
i)        Large proportion of reforms occurs due to changing social values
ii)      Greater global interaction and improved communications technologies facilitate discussion of values most important
f)       Changing Composition of Society:
i)        Global integration between nation states for humanitarian and economic reasons very high
ii)      Influence on law reform is the changing composition of societies that makes societies culturally diverse
g)      New Concepts of Justice:
i)        Development of UN and International law have seen new concepts of justice emerge
ii)      New concepts also influence development of international Humanitarian law
(1)    E.g. ICCPR, ICESCR, Human rights abuses
h)      Failure of Existing Law:
i)        Law Reform initiated when existing laws fail. Developed in areas such as:
(1)    Copyright protection
(2)    Global Trade
(3)    Humanitarian Law
i)        International Law:
i)        Reform of International law necessary to reflect changing social values
(1)    E.g.: Global shift away from use of war
(2)    Technological changes are of biggest challenge
j)        New Technology
i)        Historically technology develops before legislation exists to regulate its use
ii)      Benefits to International Law reform:
(1)    Facilitate the process of law reform: Raise awareness, exchange information and ideas, raise standards of living
iii)    Non-beneficial:
(1)    Unequal access to and development of new technologies
(2)    Problems include:
(a)    Use to create powerful weaponry, some nations better equipped than others
(b)   Powerful nations use technology for compliance, facilitate crime and terrorism

Michael Atteya

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