CONSTITUTIONAL PROBLEMS OF INTERNATIONAL ORGANISATIONS

MOI UNIVERSITY

CONSTITUTIONAL PROBLEMS OF INTERNATIONAL ORGANISATIONS

Ong'anya

 

 

 

Introduction

The international community needs a framework on which to meet its obligations. The real framework is sourced mainly from existing international law provisions- a law of nations with large borrowing from the western culture. The Charter of the United Nations provides for intervention in cases of gross human rights violation. The Security Council is responsible as the global guardian of peace and security, while the International Court of Justice is the main judicial organ of the world government. Military interventions have been employed by the United Nations as provided in Chapter 7 of the UN Charter. Somali and Yugoslavia are good examples; however the interventions ended up catastrophically. New intervention clearly targets individuals not the state, not even guerrilla groups. The purpose is to protect the individual embroiled in skirmishes he has nothing to gain from. This intervention adopts a defensive rather than offensive posture, and does not use the traditional massive air strikes and similar scale ground troop operations. De-escalation is the hallmark of the operation(Kreide).

Problem of International Law

International law is accepted as law courtesy of the discretion of states. Some even adopt such provisions in their national constitutions: they refer international law in their respective national body of laws. States employ legal advisors to formulate their position on which the state in question may declare its position or opinion in respect of the provision in question(Njenga 3). However, law as defined by positivists posit that law is the command of the sovereign, usually backed by threats of coercion in case of non adherence. They thus question the legal nature of international law. It is thus rendered mere morality and political obligation rather than a binding legal provision. This idea gains credence in the statute of the International Court of Justice Article 38 and the Restatement (Third) of the Foreign Relations of the United States, Section 102 both of which are categorical that states are the creators and subjects of international law: law is followed at the discretion of the state involved.

State and Sovereignty

Every nation has its sovereignty guarded by respective national constitutions. However, Walter Oyugi questions the whole concept as he argues that most African and Third World countries only talk of sovereignty courtesy of international laws. He defines state into two categories, empirical and juridical. For the developing world, the juridical category applies as they exist at the mercies of laws in place. Left on their own, these weaklings cannot survive(Oyugi 5). From the forgoing, it is the international system of common law that assures the survival of these states. It may as well follow that this very international system is skewed towards the mighty! Because international law lacks a policing and comprehensive judicial system, it may not apply equally to all states. As Njenga(, 4) argues, sanctions are used and have proved to be effective especially in application to the lesser powers. This implies that the lesser powers have their say while the great powers enjoy their way. This was made clear in March 2003 when the United States declared war against Saddam Hussein's regime in Iraq alongside members of the "coalition of the willing" against the so called "the axis of evil."

Ian Brownlie defines a state as

"…a legal person recognised by international law with the following attributes: (a) a defined territory; (b) a permanent population; (c) an effective government; (d) independence or the right to enter into relations with other states." (Brownlie)

States have a defined territory, but often some have engaged into endless fights in the name of securing their territorial integrity or fighting in the name of self determination. The case of secession attempt in Nigeria where Biafra attempted independence points to this. Conflicts arising from territorial disputes, as the case of Nigeria and Cameroon are yet another example, but this one was solved by the International Court of Justice, and received good will from the Nigerian president of the day Olusegun Obasanjo. The Eritrea-Ethiopia conflict has gone on for a while, disputing the border. A commission was set up to come up with a solution to the border dispute, arising from non demarcation after Eritrea got its independence from Ethiopia in 1993.

A state has to have a permanent population, of whichever size. At present, China and India are leading in the world with their populations running to billions. China's 1.3 billion, for instance is far much more than Africa's 0.96 billion. This is not comparable to Nauru's 14,000.

Effective government denotes the ability of the state to run its own internal affairs without interference from across the national borders. However, this is not always the case. Violations of human rights may be committed by the government, thus eroding the willingness or capacity of the state to prosecute such violations. Sudan is a case in point where its President Omar Hassan El Bashir has been indicted by the International Criminal Court. The government is effective but not in a position to prosecute violators of human rights in the southern region of Darfur.

The condition of independence and the right to enter into relations with other states has denied the Government of Southern Sudan a chance to join the East African Community. A request was made by its president SalvaKiir but rejected on the basis that Southern Sudan is an autonomous region of Sudan. The same principle has denied a peaceful Somaliland a position in the international system. It lacks formal recognition, as a state may not be so if it is not recognised by others as to enter into agreements.

International Judiciary

This would necessitate an international platform; the International Court of Justice and the International Criminal Court. The latter was approved in 1998 by the Rome Statute, but got into operation on 1^st June 2002 after gaining ratification of 60 countries. A remarkable distinction between the ICC headquartered at The Hague and the International Court of Justice is that the ICC is not an organ of the United Nations. Further, it tries individuals involved in acts against human rights, unlike the International Court of Justice which tries cases against states and international organisations. The Criminal Court may only intervene in a state to prosecute crimes against humanity in cases where the state machinery of the country in question is not able or willing to prosecute. It therefore complements municipal apparatus of justice. Suffice to say, the two courts (ICC and ICJ) deal with private international law and public international respectively.

The Rome Statute was adopted in the Italian city of Rome by an overwhelming majority of 120 members in favour, and seven, including the USA, China and Israel against. The objection of these countries was predictable, as would be any country interested in serving its national interest. Indeed, international politics is a game of the powerful nations seeking to achieve their internal goals externally. The USA, for instance could not withstand its soldiers and citizens taken to the Court. It suggested that initiating prosecutions be done by the Security Council. This was vehemently rejected by other states who argued against politicising the court proceedings. Israel objected to the Court on the basis that its citizens would be arrested for their actions in the occupied territories in the Middle East. China's case was not so different from this. It proposed that the concerned state should consent for its citizen to be taken to the court.

Despite the controversy, President Clinton signed the statute but fell short of presenting it to US Senate. However, President Bush rubbished it, citing political biases. Non participation of the US alongside other major powers may be to their own detriment. They may not participate in the processes of the Court, and thus decisions arrived at which are an advancement of international law may set unfavourable precedence for the said powers, especially on the provisions of customary and precedence principles.

Political realism argues that states are always in search for power in the international arena: power is the currency of international politics. In the formative years of the United Nations, the United States was the sole super power as the Soviet Union had not woken up. It was easy for the US to bulldoze its way within the Security Council and even General Assembly. It played a central role in the development of the Universal Declaration of Human Rights, alongside many other international treaties and other legal instruments. With the advent of the Cold War however, Russia started bringing in contrary views. This was coupled by the increase in the number of UN member states as colonial territories gained independence in Africa, Asia and Latin America. Clear ideological differences showed up as the Cold War built. This led to the formation of two international institutions, the Warsaw Treaty Organisation and the North Atlantic Treaty Organisation.

By the United States opting out of the Rome Statute, it noted areas of conflict with its national interest. Ironically, the same country has a Permanent Seat at the United Nations Security Council to recommend other non signatory states to surrender their political leaders to the facility. This connotes that the ICC was meant for the developing world, and may only be supported by the United States when she stands to gain in terms of her national interest. The United States feels she has the responsibility to maintain world order, and thus hersoldiers are scattered everywhere in the world- states have an obligation to international law, the United States has responsibilities.

The United States feel that by being signatories to the ICC, this posture would expose her soldiers to political machinations of the international community, and thus she cannot be bound by the compulsory jurisdiction of the Court. The procedure allows ICC's intervention on three main occasions: one is when a crime is committed by the leadership or rebels in a country signatory to the Statute; secondly, if a suspect is found in a country that has ratified the Statute, and thirdly at the recommendation of the Security Council.

Traditionally, nations could not attack their own people; in a manner of civil strife, because they comprised of a homogenous society with a common interest. It is the capitalist culture and the idea of state sovereignty that brought in the culture of civil war, as cultures became heterogeneous. Acts of human rights abuses arose, where a state violates rights of its own people, and the rise of guerrilla groups advancing the same cause of gross violations. The Darfur and the Democratic Republic of the Congo crises are good example of such, where for the case of Darfur, the Arab Sudanese in the North have engaged in a cultural war with the south, with the Arabs getting indirect support of the El Bashir Government. The Northerners are mostly Moslem, while the Southerners are Christians. Similar fratricidal bloodletting is found in the DRC where the fight is ethnic in nature, fighting for vast resources in the country.

Responsibility and international obligations of states

Because states are sovereign, a question is paused whether international treaties are legal documents to be judiciously honoured or are just political obligations. The United States failure to honour and pay its dues to the United Nations as an international obligation is further case for the weakening of international legal system. The US withdrew from the proceedings of the International Court of Justice after losing the jurisdictional phase in a case of a dispute of mining Nicaraguan harbours. Thus a serious question of obligation to international law arises. Former US Under-Secretary for Arms Control and International Security John Bolton is on record as claiming that a treaty can only be law when it comes to America's domestic purposes, otherwise it is just a political obligation. In this connection, there is no obligation for the US to honour its financial obligations to the United Nations, and she may do it when it is to her interest. This explains why it was after the September 11^th terrorist attacks that the Congress voted for her to pay all her dues to the United Nations. It was then that her interests would be served, in the "fight against terrorism." She would then use the voice of the United Nations to advance her interests against the "axis of evil."

A similar application prevails in America's dealings with the World Trade Organisation. No decision may be binding to the United States, a decision of which is inconsistent with her domestic laws and policies. Any external challenge to government conduct in relation to WTO obligations is also prohibited by the US laws. Other member states have also stood against WTO obligations, thus denying its ruling in municipal courts(Murphy 50).

Extradition

The practice of extradition had been used as a customary procedure prior to the early 20^th century when treaties were put into place concerning extradition. However, it may only be possible to extradite a person if both states concerned interpret the said offence as a criminal act. The Scottsboro Case is an example where the Michigan State refused to extradite Heywood Patterson after he was frivolously sentenced to 75 years imprisonment on racist charges of rape in Alabama(Scottsboro Case).

Terrorists may not be extradited basing on the nature of the offence committed. It has to be an offence recognised by a civilised nation as a crime in its very nature, i.e. malum in se. If it is just a crime of a political nature-malumprohibitum- i.e. acts criminalised by statute, then the principles of extradition may not apply(Extradition). These specifications must thus be included in the extradition treaty, and the execution would be subject to the extraditing state. Political offences involve acts which are construed as to threaten the normal governmental operations of a state. They may include bribery, sedition, et cetera. Offenders in this category may be offered asylum status and are entitled to protection. Distinct from these are ordinary criminal activities that hinge on public peace, and are aimed not against the government but individuals.

The purpose of extradition is to prevent a culprit from running away from justice. One can be extradited only when the offence is accepted as a crime in the country where the offence was committed. The case of Alberto Fujimori, a former Peruvian President with Japanese origin could not be extradited to Peru from Japan due to his connections as a fugitive in Japan. Charges levelled against the fugitive by the Peruvian government included murder, corruption and crimes against humanity. He was later extradited and sentenced to several years in prison, becoming the first South American former head of state to be sentenced.

War Crimes under Geneva Conventions

The Geneva Conventions of 1949 lay down a comprehensive legal framework of war. However, a challenge arises that nations go to war because political means of resolving a standoff have not borne fruits- in fact; war has been defined as the game of politics through other means. How then does one expect, after failure of diplomacy, the law that has failed in negotiating a peaceful solution be used in an armed struggle? This puts into question the necessity of laws of war, and raises the question of the formulation of laws to govern how laws can be enacted.

The system of international law is not new at all, and the debate currently is not on whether to have these laws, but rather how to improve them. Definitely the law of nations hinges on sovereignty of nations, as nations become subject of such laws. In defence of the Sacrosanctity of state, and the concept of sovereignty, it is abstract; in fact needless, to have a law of nations. The laws of war, for instance, were initially executed through customary practices, which were then converted into written provisions during the Hague Conventions of 1899 and 1907. These conventions established the so-called Permanent Court of Arbitration, which was ironically a temporary non court establishment; whose effectiveness was disproved by the World War II. The principles behind such provisions are that, one; it is unlawful to engage in an aggressive war. Secondly, that self defence is legal in aggression.

The Kellogg-Briand Pact (1928) together with the 1945 Charter of the United Nations provided for further legislations on the conduct of civilised wars. It becomes criminal to kill civilians in a combat operation, and prisoners of war are protected under international law. This is provided for in the 1977 Protocols to the Geneva Convections.

Laws of neutrality come in handy, as the neutral states may be found in the line of fire. Neutrality itself may be difficult to define, as it may mean different things to the opposite sides if a military confrontation. For instance, a state A has been supplying fuel to state B, and a war has been declared between state B and state C. If state A continues supplying the oil to state B, and this is used for military purposes, C may interpret it as partiality.

States may withdraw from the international instruments, if there is a feeling that state interests are not served in such an establishment. The United States announced a unilateral withdrawal from the International Court of Justice in 1984 after Nicaragua had accused the Central Intelligence Agency of clandestine operations to overthrow the Government through the rebel contra forces(Kegley and Wittkopf 597). The US did not recognise the authority of the tribunal. In 1986 Ronald Reagan's administration withdrew from commitments to compulsory jurisdiction, after a case was decided in favour of Nicaragua on the US's mining over Nicaragua's harbours, in a 1984 decision. This is a naked show of the subservience of international law to parochial interests of powerful states, as opposed to a constitutional set up where absolute power lies with the state, and there is no discretionary power of the state, but respect to the rule of law. It therefore reduces international law into an instrument of the powerful to have their interests served at the expense of the lesser powers.

For the international community to come in to safeguard against human rights violations, a provision for humanitarian assistance has been provided. The modern one differs from the classical model where tankers and war planes would shell arsenals in the name of humanitarian intervention, but rather the intervention has been individualised. The intervention focuses on individuals to whose rights are to be protected as the intervention itself takes a defensive rather than offensive posture. The purpose of the new approach is the de-escalation of the crisis (Kreide 95).

The United Nations has various modes of dealing with international crisis. The public diplomacy by the Security Council and the General Assembly have assisted quite a lot, as the blue berets and the blue helmets may be acknowledged. In supplementing this, private diplomacy by the Secretary General's "good offices" has also worked. This is preferred due to its confidential nature, impartiality and confidence building.

All national constitutions, whether written or otherwise stand for the defence of the nation from both internal and external threats. However, humanitarian issues may okay a humanitarian intervention. This is the application of a threat, or actual use of force against a state by another state or group of states without the permission of the state being the subject of intervention, with an intention of restoring respect for fundamental human rights of individuals in that state(Holzgrefe 18). What would then determine the legality and legitimacy of such an operation, one that often goes against the confession of state sovereignty? By legality is meant the authorisation by the United Nations Security Council of an intervention while legitimacy is the nature of the obligation that states owe to each other involved. It is arguable that both these concepts should be present to okay intervention. However, it is clear that the second Gulf War pioneered by President Bush and Prime Minister Blair met neither of these, as the United Nations stood clearly against the intervention, as did the international ethical obligations. The unseating of President Saddam Hussein was therefore not justified as the sovereignty of Iraq was violated as the credibility of the United Nations put to task. It was a power play for the benefit of the highest contributor to the UN budget, the United States, whose contribution stands at almost a quarter of the total budget: at 22%.

The UN Charter

Realists portend that power politics is the framework on which states operate. Distribution of power is thus the major concern of realists, as global institutions with skewed distribution may not function well (The New World Order). The Charter of the United Nations provides that all members should refrain from the threat or the actual use of force against another state. The territorial integrity and political independence of any state should be respected by all, as presented in Article 2 (4). 2 (7) warns against intervention on matters within national jurisdiction of states, as Article 24 vests primary responsibility on maintenance of international peace and security upon the UNSC. Further, Article 39 okays the UNSC to determine the existence of any threat to peace, its breach or any act of aggression, and deciding on the necessary measures for restoration of international peace and security. Sanctions, embargoes and diplomatic restrictions, are also provided for in Article 41. Should these measures prove inadequate, the Charter licences "action by air, sea or land forces." This clearly violates the principle of state sovereignty as guarded by any national constitution. This decision may however only be reached with a vote of nine with concurring outcomes from Club Five as provided for in Article 27 (3). Should there not be such a concurrence, then at least, a veto should be avoided, at the Council level.

The scope of international law is anything trans-state in nature. The trends in globalisation, ICT explosion, human rights issues, et al are seriously downplaying the sacrosanctity of state. The United Nations recognises only those actors who enjoy legal status. Terror networks like al Qaeda, the Hamas Movement, Hezbollah, among others are not recognised by the international law, as their operations are not formally structured. This provides a dilemma in terms of dealing with such nebulous organisations.

Conclusion

International law comprises political compromises and may not be put on the same line with municipal laws. It may be disregarded with impunity, especially when it rubs the powers the wrong way. Whenever it clashes with national laws, then the national laws prevails. Forming world government is a utopia. Nations are keen to preserve their sovereignty with jealous. This does not however dispute the importance of international. What it means is that the international system is anarchy and that for fairness, a balance of power is necessary for justice to prevail. This paper therefore recommends the abolition of archaic international instruments, including the United Nations.

 

Works Cited

Brownlie, Ian. Principles of Public International Law. 3rd Edition. Oxford: Clarendon Press, 1979.

"Extradition." Microsoft Encarta Premium 2009. [DVD]. Microsoft Corporation. Redmond, 2008.

Holzgrefe, J. L. "The Humanitarian Intervention Debate." Keohane, J. L. Holzgrefe and Robert O. Humanitarian Intervention: Ehical, Legal and Political Dilemmas. Cambridge: Cambridge University Press, 2003.

Kegley, Charles W. and Eugene R. Wittkopf. World Politics: Trend and Transformation. 8th Edition. Boston and New York: Bedford/St Martin's, 2001.

Kreide, Regina. "Preventing Military Humanitarian Intervention: John Rauls and Jurgen Habermas on a Just Global Order." German Law Journal Vol 10.1 (2009): 95.

Murphy, John F. The United States. Cambridge: Cambridge University Press, 2004.

Njenga, F. X. International Law and World Order Problems. Eldoret, Kenya: Moi University Press, 2001.

Oyugi, Walter. Politics and Administration in East Africa. Nairobi: Konrad Adenauer Foundation, 1992.

"Scottsboro Case." Microsoft Encarta Premium 2009. [DVD]. Microsoft Corporation. Redmond, 2008.

"The New World Order." Foreign Affairs Vol 86.2 (2007): 39.