Legal investigations into the prospect of law in the
globalisation era are frequently challenged by accounts of law’s purported
inability to effectively extend itself further than domestic or national,
jurisdictional confines. Consecutively, lawyers are not the only intellectuals
who recognize and deliberate on the current regulatory issues normally
categorised under the notion of “global governance”. Indeed, an enquiry into the
character and scope of legal regulation within this context, on the one hand, is
inexorably exposed to questions of derivation and purpose, and
on the other, to questions of relationships, compatibility and
This scenario is nest described by the South Sudan case where
after decades of civil war where millions of civilians were killed by warring
rebels, the situation has not been any better at the hands of multinational
companies that are exploring for minerals. Their activities are equally
endangering the lives of these volatile and unprotected civilians through both
air and water pollution not to mention human labour exploitation.
As such, it is crucial that these activities are remedied early, and this
calls for the utilization of numerous transnational legal frameworks. In this
analysis therefore, South Sudan will be the main subject to help develop an
understanding of the necessary mechanisms and procedures that should be
undertaken to enforce laws even beyond jurisdiction boundaries.
Transnational legal frameworks are mainly characterized by
elements of the public framework such as sources of public international law,
and institutional structures like the United Nations, among others. Their
presence helps contain problems associated with globalization. Indeed,
currently, many regulatory extents can be assumed as instantiations of
transnational norm-creation. Generally, supply chains that link both the local
and universal markets together, commercial settlements, food-safety and
food-quality normalization managements, Internet governance, in addition to
environmental protection, crime and terrorism are significant examples of the
rapidly expanding spaces of personal, organisational and regulatory activities
that grow with little concern for jurisdictional boundaries
In this regard, it is clear that the above mentioned links
that join the local market to the global market exist in South Sudan and are
currently being abused due to the age of this nation. It is widely known that
Sudan is the youngest nation in the world having split from Sudan in 2011. As
such, this country may lack effective and institutionalized laws to govern
multinational companies and their activities within its jurisdiction; or may
equally have the laws, but lack the necessary mechanism to implement the laws or
intervene in situations where the rule of law is abused. Accordingly, such a
situation demands interventions that are guided by existing transnational legal
Seen in this front, the quest for the- nature of law, has
continually been perceived with the pretentious postulation that it is or must
be diverse, that law is or, can be dissimilar in relation to
convictions, morality, and economics. However, these postulations have left the
developing law body injured and wavering, damaged and violated. In turn,
attempts at saving it risk being either immature or suspiciously courageous, as
the law definition becomes indefinable. In essence, should law be perceived to
be a means to oppress, corrupt and dominate, or be perceived as a promise of
hope, and an instrument of liberation? Further, can law be recognised and
understood only in its surrounds, or should law be professed through its
function in society? In this regard, law is multi-faceted and, therefore,
fragile constitution has been allied with its inconsistent foundation and its
intolerable creation out of violent acts.
Roger Cottrell remarked, in a setting similar to Southern
Sudan, the effort of answering these questions has to be appreciated against the
contextual of distorting boundaries between, law and society.
Therefore, law constitutes society; it is a characteristic of the society, a
framework and a countenance of empathy that permits the society to be.
Therefore, a sociological perception on legal thinking is essential to recognise
and scrutinize the rational and moral power of law in this respect. Likewise,
appreciating law as a social phenomenon indicates that the distinction between
law and society does indeed blur. Consequently, the internal and external
distinction is replaced by a conception of a partial or specialised participant
perspective on and in law (Shaw, 2008).
At the height of the regulatory state with its belief in the
jurisdiction and in law as social science, law today is often seen to having
turned irrelevant in the face of global challenges. It is from this fact that
law must be re-thought and re-asserted, as one among other intangible
methodologies to the study of modern societies. This will greatly help to
sensitize the public about their fundamental rights, consequently, reducing the
chances of exploitation by multinational corporations seeking to profit without
minding the basic laws.
The basics of these queries circumnavigate around the
politics of private law-making, and hence they principally involve the
constitutional scopes of private organisation. Rather, they harbour issues of
liability, lawfulness and independent regulation. Additionally, the two have
become tools for propelling essential work in global administrative law.
Interestingly, liability and lawfulness underscore the degree to which the
developing transnational regulatory regimes and does not solve the
constitutional challenges that the global legal order faces today.
As increasingly specialised, functionally-differentiated problematic areas and
domains of human and institutional conduct change in rejoinder to a combination
of external compulsions. Consequently, the law governing these constellations
turn out to be deeply tangled in these complexes, layered constitutions.
Lastly, when discussing about global governance, scholars
frequently associate a histrionic disembedment of law and its recognized
architecture. However, the qualified loss of a reliable and all-inclusive legal
infrastructure is accompanied by progressively intensifying arguments around an
evolving global legal awareness, especially with regard to human rights.
Generally, global governance is understood to have auxiliary opened the windows
to a sphere of injustice, distribution inequalities and grave rights abuses, a
claim that is ferociously challenged by scholars, lawyers and practitioners. As
illustrated, for example, in the unrelenting concern in the
“constitutionalisation” of international law, the question on whether there is
any universal role for law in a globalised world relic at the centre of the
present engagement with global governance matters (Weilert, 2010).
This means that a disaster, or law exhaustion, cannot be
represented as a consequence of globalisation, but as an inherent feature of
law’s progression in its relation to the society. To reiterate, the supposed
crisis of law and legal regulation, whether as a defeat of state sovereignty or
as a problem of a lack of democratic and political accountability and legitimacy
in the global sphere, has to be understood as a particular magnification an
awaiting law challenge. In this
regard, it can be revealed that many existing concerns about the fate of law in
relation to a current transformation of the state and the herewith connected
challenges to models of democracy and lawfulness and liability issues must be
evaluated against the context of a modernization of legal progression in the
national, local context (Zumbansen, 2010).
Therefore, having understood the implications of
transnational legal framework, and related it to the existing problems in South
Sudan, the best action would be to intervene through existing frameworks so that
the exploitative multinational companies are put in check (Weilert,
2010). Further, these transnational legal frameworks
should work together with the local government and help it to stabilize and be
in a position to enact and implement its own laws. This intervention will also
help to reduce existing environmental depletion in line with the global goals.
The Syrian popular-uprising-turned-armed-rebellion is in its
third year, and appears poised to go on, with the government and an alarming
array of local militia engaged in a violent struggle of attrition. Indeed, amid
widespread destruction of key urban regions and reports ascribing war crimes to
both government and the opposition militia, the fighting has generated a
regional humanitarian emergency. According to some estimates approximately over
70,000 Syrians have been killed ever since the unrest began in March 2011;
while, as of April 22, over 1,380,406 refugees had run away from the country.
Data by the United Nations suggests that approximately 3.6 million Syrians may
be internally displaced. Consequently, the increasing conflict in Syria has
created progressively complex and challenging policy questions and on-going
debates for international law, United Nations, super power nations and other
international organizations. Notably, these debates have mainly concentrated on
the implications of the uprising on regional balance of power and human rights.
Further, issues of critical concern in international
discourse include the probability for protracted ethnic or sectarian conflict,
possible insecurity of conventional arms stockpiles and chemical weapons;
threats to the territorial integrity of Syria; regional refugee flows, the
prospect of violent radical groups; and the future costs of instituting security
and reconstructing the country. In essence, the dominant question for policy
makers is the identification of the best approach to stop the conflict in Syria
before the crisis relegates the region to a state of destruction and
President Obama’s Administration has been advocating for
President Asad’s resignation as of August 2011, and has continually pushed the
United Nations Security Council to denounce the Syrian government. However,
these efforts have been vetoed many a times by Russia and China, which have been
seen to be sympathetic to the Syrian government. In light of recent class for
urgent humanitarian interventions and the threat of use of chemical weapons by
the Syrian government, president Obama is seeking support for a U.S. led
intervention into Syria. The Obama Administration recognizes the need for a
negotiated political settlement and has organized military tactics to secure
Syria’s chemical weapons, if necessary.
Accordingly, in a recent conversation with Australian Prime
Minister, Julia Gillard, President Obama attempts to convince the Australian
Prime minister to join the United States in using force to intervene in Syria. A
number of issues emerge during this conversation. First is the fact that the
International Court of Justice (ICJ) has never delivered a judgment permitting
States to intervene into the domestic affairs of another State to stop civil
wars where a large number of people are at risk of being killed. President Obama
dismisses this lack of ICJ precedence and says it does not matter. Contrary to
president Obama’s opinion, the lack of this precedence significantly matters in
the decision to use force against Syria. This is because such an action by the
United States and Australia would constitute overthrowing the current regime in
Syria since already the US has shown its support for the opposition.
Moreover, the use of force within a foreign country’s the
territory devoid of the approval of the appropriate authorities controverts the
state sovereignty principle enshrined within the UN Charter. Specifically, the
use of force among states is proscribed with the exemption of the case of valid
defence or a joint exploit sanctioned by the Security Council. At present, the
Security Council has not sanctioned such action by the US and its allies
(Lowe & Tzanakopoulous, 2011).
Furthermore, the ICJ set precedence in its ruling the USA v.
Nicaragua court case in 1986. In the
official summary of the judgment, the ICJ expressly tackled the arguments
presented in favour of "humanitarian intervention" by the United States.
As such, the ruling is provided a clear and distinct condemnation of this
doctrine, in the way it is applied. Notably, the Court ruled:
"If the provision of "humanitarian assistance" is to escape
condemnation as an intervention in the internal affairs of another State, it
must be limited to the purposes hallowed in the practice of the Red Cross, and
above all be given without discrimination" (paragraph 2)
(Centre for the Study of Interventionism, 2012).
Further, it also criticized the invocation of suspected human rights abuses in
validation of the intervention: "With regard more
specifically to alleged violations of human rights relied on by the United
States, the Court considers that the use of force by the United States could not
be the appropriate method to monitor or ensure respect for such rights"
(paragraph 6). Essentially, the ICJ ruled, "Intervention
is wrongful when it uses, in regard to such choices (i.e. choices made by States
regarding their political, social, economic and cultural system, and foreign
policy) methods of coercion, particularly force, either in the form of military
action or in the indirect form of support for subversive activities in another
State" (Centre for the Study of Interventionism, 2012) Further the ruling also concluded that the argument resulting
from the protection of human rights in Nicaragua cannot give a legal
justification for the United States’ conduct, and cannot, in any occasion, be
acquiescent with the legal policy of the respondent State, which is founded on
the right or principle of collective self-defence.
Clearly, the issues addressed in this ruling are identical to
the scenario at hand, whereby, the US wants to use force in Syria based on
humanitarian intervention. As such, President Obama is wrong in suggesting that
the lack of a sanctioning ruling at the ICJ does not matter. This ruling
prohibiting the unilateral use of force in another country supports the
customary international law of non-interference and hence, must be considered as
The second issue emerging out of the phone call is that
intervention in Syria by Australia and America may be legal if the objective is
to establish the foundations for an exception to customary international law.
Indeed, unilateral action on Syria by the US and Australia may be legal
if it is intended to establish a new customary rule under international law
(Matthews, 2008). However, this must be supported by
two main elements namely consistent state practice and opinio juris favouring
intervention. In the first element, such action must show consistency, that
is, provide examples where unilateral decisions have been implemented
with positive results. Notably, with regard to state practice, the presence of a
number of precedents of interventions (such as the US led interventions in
Afghanistan and Iraq) acknowledge the existence of a
right to intervene. In the second element, unilateral; action will be considered
legal when there is evidence of opinio juris supporting the new customary
international law in derogation of the law that prohibits the use of force
The last issue emerging out of the phone call is whether
Obama rely on UNGA resolutions and particularly XVII (12) for a mandate to
intervene in Syria. President Obama believes that Resolution
XVII(12) sanctions the use of force by stating “states must ensure that serious
breaches of human rights are not left unresolved”. The US cannot rely on this
clause to justify its unilateral intervention in Syria for the basic reason that
the UN Security Council prohibits the use of force it other states. The clause
provides the Obama administration with a strong point of argument that may
convince its allies in the UN to sign off on the intervention. However, the
clause cannot substantiate unilateral use of force (Bannon, 2006).
In conclusion, while there are increasing calls for a
humanitarian intervention in Syria, there is the need
to carefully deliberate on the actions to be adopted in providing a lasting
solution to the crisis. Deliberations should look at precedent actions in
countries with a similar situation, to establish the parameters for positive
intervention. All in all, every action agreed upon should aim at preserving the
sovereignty of Syria and stability in the region.
Bannon, L. (2006). The Responsibility to Protect: The U.N.
World Summit and the Question of Unilateralism. Yale Law Journal ,
Centre for the Study of Interventionism. (2012).
International Court of Justice ruling in USA v. Nicaragua (27 June 1986).
Retrieved Jun 3, 2013, from Centre for the Study of Interventionism:
Higgins, R. (2009). Themes and Theories: Selected Essays,
Speeches and Writing in International Law. Oxford: Oxford University Press.
Lowe, V., & Tzanakopoulous, A. (2011). Humanitarian
Matthews, M. (2008). Tracking the Emergence of a New
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Shaw, M. (2008). International Law. Cambridge:
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Zumbansen, P. (2010). Defining the Space of Transnational
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Calliess/H. B. Hoffmann, 'Judicial Services for Global
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Nicaragua accused the United States of violation of its treaty
obligations as guided by Article 2(4) of the UN Charter; Articles 18 and
20 of the Charter of the Organization of American States; Article 8 of
the Convention on Rights and Duties of States; and Article I, Third, of
the Convention concerning the Duties and Rights of States in the Event of
Civil Strife. The US was also accused of breach international law by
violating the sovereignty of Nicaragua; use of force and threats of force
against Nicaragua and interfering in the internal affairs of Nicaragua.