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International Law Assignment

Subject: Law

Topic: Transnational Law

Part I

Question 1

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 inter-disciplinarily[1].

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[2] (Higgins, 2009).

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 frameworks.

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[3]. 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[4]. 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[5]. 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.

Part II

Question 2

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 destabilization.

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[6]. 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 a precedent.

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 (Treves, 2006).

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.

 

 

 

 

References

Bannon, L. (2006). The Responsibility to Protect: The U.N. World Summit and the Question of Unilateralism. Yale Law Journal , 1157-1165.

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: http://www.interventionism.info/en/International-Court-of-Justice-ruling-in-USA-v.-Nicaragua

Higgins, R. (2009). Themes and Theories: Selected Essays, Speeches and Writing in International Law. Oxford: Oxford University Press.

Lowe, V., & Tzanakopoulous, A. (2011). Humanitarian Intervention. MPEPIL.

Matthews, M. (2008). Tracking the Emergence of a New International Norm: the Responsibility to Protect and the Crisis in Darfur. Boston College International and Comparative Law Review, 137-152.

Shaw, M. (2008). International Law. Cambridge: Cambridge University Press.

Treves, T. (2006). Customary International Law. MPEIPL .

Weilert, K. (2010). Taming the Untamable?Transnational Corporations in United Nations Law and Practice. In A. Von Borgdandy, & R. Wolfrum, Max Planck Yearbook of United Nations Law, Vol. 14 (pp. 445-506). Netherlands: Koninklijke Brill N.Y.

Zumbansen, P. (2010). Defining the Space of Transnational Law: Legal Theory, Global Governance & Legal Pluralism. In P. Zumbansen, Transnational Legal Theory (pp. 141-189). New Orleans: Tulane University.



[1] See the insightful and critical analysis by M. Koskenniemi/P. Leino, 'Fragmentation of International Law? Postmodern Anxieties', (2002) 15 Leiden Journal of International Law 553-579

[2] R. Bratspies, 'Regulatory Trust', (2009) 51 Arizona Law Review575-631; see the contributions to E. Balleisen/D.             Moss (eds), Government and Markets: Toward a New Theory of Regulation(Cambridge University Press, 2009

[3] R. Cotterrell, 'Why Must Legal Ideas Be Interpreted Sociologically?', (1998) 25 Journal of Law & Society 171-192, at 176

[4] R. Romano, 'Law as Product: Some Pieces of the Incorporation Puzzle', (1985) 1 Journal of Law, Economics and

Organizations225-283; E. A. O'Hara/L. E. Ribstein, The Law Market (Oxford University Press, 2009); G.-P.

Calliess/H. B. Hoffmann, 'Judicial Services for Global Commerce - Made in Germany?', (2009) 10 German Law

Journal 115-123; G.-P. Calliess/H. B. Hoffmann, 'Effektive Justizdienstleistungen für den globalen Handel',

(2009) 42 Zeitschrift für Rechtspolitik1-4; H. Eidenmüller, 'Recht als Produkt', (2009) 64 Juristenzeitung [JZ]

641-653.

[5] P. Zumbansen, 'Law's Effectiveness and Law's Knowledge: Reflections from Legal Sociology and Legal Theory', (2009) 10 German Law Journal417-43

[6]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.