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Sunday, October 10, 2010

World Order- HSC 2004 Question and answer- Michael Atteya

Evaluate the effectiveness of the law relating to world order in achieving justice for individuals, justice for society and justice for the nation state.

World order is a term that to the balance among nation of the world. The need for world order has changed as the balance of power changes, as a result of differences between nations, the aspiration for territory or power, conflicts follow therefore resulting in a change in the balance of power. At the build up to the Gulf War, President George Bush Snr. called for a ‘new world order’ to replace the hostile world order of the Cold War. This world order was no longer simply divided in two; it was to be ‘a world order where the rule of law supplants the rule of the jungle, a world where the strong respect the rights of the weak’. The effectiveness of the law in achieving justice for individuals, society and nation-states in relation to world order has been predominantly ineffective in achieving justice.

One of the utmost criticisms of the international law has been its focus on nation states. Article 34(1) of the Statue of the International court of Justice (ICJ) explicitly states that only nation states may be parties in cases of the ICJ, and there is virtually no provision for individuals to use international law in order to achieve justice. The wording of the article has also attracted much attention as it also excludes the organizations such as the International Red Cross access to the ICJ in helping to achieve world order. The ICJ consists of 15 judges elected for a 9 year term by the UN General Assembly and Security Council. The work of the Court has had to reflect the main forms of civilisation and the principal legal system of the world.  An ineffectiveness of the ICJ is that a nation cannot be compelled to appear before the court therefore its enforceability and accessibility is limited.

However the effectiveness of the law in achieving justice for the individual includes the establishment of the International Criminal Court in accordance to Article 8 of the Rome Statue of the International Criminal Court (Statue). The Rome Statue gave the ICC jurisdiction over a wide range of war crimes committed during international armed conflicts. The ICC’s role in protecting individuals is through it’s ability to prosecute people accused of grave breaches in the Geneva Conventions of 1949- these individuals include: wounded or shipwrecked soldiers (protected by the 1st and 2nd Geneva Convention), prisoners of war (POW) (3rd Geneva Convention) and civilians (4th Geneva Convention) in occupied territories. The ICC protects these individuals by being able to persecute those who: commit wilful killing, torture or commit inhuman treatment such as biological experiments, wilfully causing great suffering, or serious injury to body or health and other crimes against humanity.

The ICC also has jurisdiction to prosecute any person who use: prohibited attacks on civilians, harm to defenceless persons such as killing or wounding soldiers who have surrendered, certain prohibited methods of warfare such as the misuse of a flag of truce and certain prohibited acts in occupied territory or against nationals including the transfer, directly or indirectly, by the occupier of parts of its own civilians population into the territory.

With the growing numbers of crimes against humanity such as genocide, the law has responded to the change of the nature of these crimes such as the recognition that rape now constitute as genocide. This was through the landmark Akayesu case in 1998 where a Trial Chamber of the International Criminal Tribunal for Rwanda held that when rape was used a method to destroy a protected group by causing serious bodily or mental harm to the members of the group it constituted genocide. By this the law has show it effectiveness in achieving justice through its ability to respond to changes.

International Law also protects the rights of individuals by ensuring justice for victims of war crimes. The ICC allows for victims to participate in the proceedings through contributions such as their views and concerns, it also ensures that victims and witnesses are protected mainly through the establishment of the Victims and Witness Unit in the ICC registry by Article 43 (6) of the Rome Statue. This unit provides protective measures such as security and counselling to victims and witness as well as their families who may be at risk because of their testimonial. Also victims are protected through reparations such as Article 75 (1) which established principles relating to compensation, and may order a convicted person to provide that reparation to the victims.

Children as an individual are also protected by international law which ensures under Article 6  of the Rome Statue the definition of genocide to include “forcibly transferring children of the group to another group” if committed with the intention to destroy all or part of a national, ethical, racial or religious groups as such.

Finally there is a range of UN bodies that are designed to protect the rights of individuals. However the committee structure of the UN has been widely criticised for being ineffective. Non government organizations have claimed that the committee lacks the necessary legal authority to bring governments or individuals to justice.

One recent controversy in Aust. is the mandatory detention of asylum seekers while their claims for refugee status are processed by the Dept. of Immigration. The Howard Govt. considered these individuals to have broken Australian law by arriving in the country without a visa or travel documents, whereas international law seeks to remind Australia of the fundamental human rights of each refugee. The individuals in this case are not benefiting from this international pressure because international law and the UN have no enforcement powers. Amnesty International (an NGO) can speak out against the conditions in the detention centres but cannot force conditions to be changed.

The effectiveness of the law in achieving justice for society can be accessed by the effectiveness of peacekeeping mission such as the Australian- led mission in East Timor or the ineffectiveness of the Uruguayan-led Peace Keeping mission in Congo. Since 1948 there have been 45 peacekeeping missions conducted by the UN, 2/3 of these conducted since 1991 (possibility because of the rise in guerrilla warfare). 29 missions have been successful (a 65% success rate), achieving all of its objectives. A peace keeping mission are outside of the UN budget and direct control, peacekeepers are placed under the command of a national defence forces. As well nations cannot be forced to commit troops to peacekeeping missions, instead the Secretary –General must request their assistance. This often creates strain in putting together a sufficiently large force. This highlights the inefficiency of resource efficiency by international law.

As well, troops sent under a peacekeeping operation are sent under Charter 6 of the UN Charter which lightly arms the soldiers and limits the soldier’s ability to shoot without means, this is in contrast to a peace enforcement operation which are under Charter 7 of the UN Charter that allows for the soldier to be armed and to shoot on suspicion. This creates difficulties for the law in opportunities for enforcement in some countries. An example is the Uruguayan-led Peace Keeping mission in Congo where the troops under charter 6 could not protect civilians because of the restrictions of the Charter. This case also highlights the role of the media in the agenda of the UN. A documentary by Dateline in 2003 about the Congo Peacekeeping mission is quoted to say that the situation in Congo was not the worst but it was the most widely covered. International law responded quickly to reflect the communities’ standard and expectations. This reliance on media reports to influence the UN peacekeeping agenda causes concerns to the prospect of a peaceful world order.
            However the effectiveness of the law in reflection of changing community standards can also be viewed through the changes to the Geneva Convention as a result of the changes in society eg. The first Geneva Convention was written as a result of a Swiss man Henry Durant recount of the barbarity of injured soldiers left in the battle field.

            NGO’s have played an important security role in particular situations; many have attained a high profile in the pursuit of humanitarian relief and fostering local economic and social development. In doing so NGO’s have been able to promote peace and security to attain world order and also forge a balance between community rights and values. The media like NGOs play a similar role. In 2001 amidst the Tampa affair in Australia media giants such as the Sydney Morning Herald and programs such as 4 corners ran/showed pages and case studies about asylum seekers and about Afghanistan in an attempt to educate people and moderate the anti-asylum-seekers viewpoint of that time.

            Finally, the absences of world peace has been a reflection of the lack of enforcement, but also outlines the need for enforcement in order to achieve the definition set out by the UN of a peaceful world order.

The protection of the rights of nation-states is the fundamental basis of international law, but this has undermined the effectiveness of international law. The opportunity for of international law to be enforced has been reduced by the affirmation of state sovereignty. In a world of varying economic standards, technological achievements and degrees of development, states do not rank equals in the world order. There are leaders in the world community and their dominance is recognised by their status as the 5 permanent members of the UN Security Council. These 5 countries have more power and influence to exert their own values and standards into the international arena therefore there is minimal equality of treatment between the nation-states of the world.

The Statue of the International Criminal Court has taken 4 years to collect the required 60 signatures to be gained and the treaty ratified. Powerful nations such as the USA can undermine the proceedings of an international court by refusing to supply evidence and witnesses and refusing to enforce its decisions. An example of the USA dominance in the world arena is despite the UN avocation on a peaceful world order, international law was unable to prevent to US initiated war against Terrorism- one may suggest that however that stamping out terrorism is a means of achieving a peaceful world order.

International law is only binding on the country’s that ratify it. As a result the enforceability is mitigated by the sovereignty of individual sates. Any state that ratifies a treaty but fails to act on it by enacting domestic legislation has no sanction placed on it. International law therefore cannot be enforced with out the co-operation of nation-states. States that violate international standards of human rights may find themselves subject to international standards of human rights may find themselves subject ti international pressure and possible economic sanctions such as those imposed on South Africa for its apartheid govt and law. This is the limited extent of the enforceability of international law.

There is no equal treatment between nation-states as a consequence of the dominance of world order held by some nations-states. The UN charter declares in its preamble that “to reaffirm faith in fundamental human rights, in the dignity and in the equal rights of men and women and of nations large and small….” But in practice this equality does not exists.  As an example the power held by the 5 permanent nation of the Security Council are given a more significant say than smaller states, because of their status within the council, their power of VETO and through their economic and military powers. These larger states can also assemble allies to support their own interests eg: the US led “Coalition of the willing” in the war against terrorism. In the recent years after 9/11, the effectiveness and enforceability of the UN has been compromised by the US led invasions on Iraq and Afghanistan despite opposition by the UN Assembly and Security Council, the formation of the Coalition of the willing has enhanced the movement away from the UN and into dominant countries such as the USA.

The expectation of Nation-States has been they expect to be treated with respect by the other states. International law provides guidelines on the treatment of states in the interests of peace and harmonious cooperation. States enjoy the independence that sovereignty status brings and do not want it removed. In that circumstance, international standards becomes a balancing act between overriding international quest for peace and cooperation and a nations-state’s expectation that it will be left alone to function accordingly to it own laws and values.

The Aust’n Govt. repeated dismissal of international criticism towards its treatment and handling of the asylums seekers reflects its desire to be left alone and embrace its state sovereignty. However though there are people in Australia who believe that a satisfactory balance has not been achieved and that the Aust’n govt. has failed in its obligations to international standards on the treatment of human beings. This highlighting the difficulty of balancing international standards and expectations of nation states.

In conclusion, the effectiveness of the law in achieving justice for individuals, society and nation-states in relation to world order has been predominantly ineffective due to the incapability of the law to respond to the certain aspect of each area.

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