LAW 088 Lecture Notes PDF

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Courtesy of slideshare/littlenotestoshare - i. Tuvalu (7km2), Naura (21km2) Size is not important but must have a clear territory. State: a political unit composed of people, well-defined territory and a set of governing institutions. 3) - Differences between common law and civil law - A government ...

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i.e. Tuvalu (7km2), Naura (21km2) Size is not important but must have a clear territory.

State: a political unit composed of people, well-defined territory and a set of governing institutions.

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Differences between common law and civil law

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A government There must be in existence a government system in the state. International law does not prescribe the exact form of government, except that it must be in conformity with the right of self-determination of people.

LAW088 STATEHOOD AND SOVEREIGNTY

Common law Derived from English Law Refers to case laws Adversarial (lawyers play active role) Based on the rights of the individual Based on judicial precedent (first case ever decided in the court, obeys doctrine of stare decisis) Unwritten law i.e. UK, Australia, Hong Kong, USA, Canada

Civil law Derived from Roman Law Refers to statutes Inquisitorial (judges play active role) Based on the best interest of the society Law is codified (decisionmaking must be referred from the constitutions, acts or other statutes) Written law i.e. Italy, Spain (French), Germany, Austria (German)

Constitutive theory: defines a state as a person of International law if, and only if, it is recognised as sovereign by other states. Declarative theory: four criteria must be met (permanent population, defined territory, a government, capacity to enter into relations with other states) Art. 1 of Montevideo Convention on the Rights and Duties of States 1933) -

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The convention codified the declarative theory of statehood as accepted to be as part of customary international law. Signed at Montevideo, Uruguay at December 26, 1933. Signed by 19 states inc. Paraguay, Brazil, US, Peru, Argentina.

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Not matured statehood 1) -

Republic of Abkhazia Near Georgia in Russia. Cannot achieve independent. No government.

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Palestine Against by Israel. Should be a matured statehood. Lack of effective control over the claimed territory (government control – external).

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Israel No accurate border. Governed by military. Not recognised by international community.

Types of government control 1) -

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Permanent population An aggregate of individuals of both sexes who live together as a community in spite of the fact that they may be of different races or creeds. There is no specific rule in the number of population. i.e. Naura: 1000 citizens only Defined territory Exclusive rights to display activities of the state within a certain geographical area. No rule prescribing on the minimum size of the territory.

Capacity to enter into relations with other states Forms diplomatic ties. Negotiate agreements. i.e. Malaysia and Israel does not have diplomatic relationship.

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Internally A government implies capacity to establish and maintain a legal order in the sense of constitutional autonomy. This means that government focus on the country and its constitution itself. Externally A government has the ability to act autonomously on the international level without being dependent on other states within the international legal order. Thus, state of Palestine was not a state due to lack of effective control over the claimed territory.

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State sovereignty -

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Ability of a state to be independent and free from control of another state. The power of a state to do everything necessary to govern itself, such as making, executing and applying laws, imposing an collecting taxes, making war and peace, and forming treaties or engaging commerce in with foreign nations. Emerged 350 years ago as a result of the Treaty of Westphalia. Vested in government or other political agency.

Sovereignty in international law -

The legitimate exercise of power and the interpretation of international law by a state. Government possess full control over its own affairs within a territorial or geographical area or limit.

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Challenges to sovereignty 1) -

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Concepts of sovereignty 1) 2) -

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Authority The right to command and correlatively the riht to be obeyed/ The holder of sovereignty possess authority. Not just mere authority but supreme authority. Legitimacy A holder of sovereignty derives authority from some mutually acknowledged source of legitimacy. i.e. from Natural law, a divine mandate, hereditary law, constitution, international law. Supremacy What makes the constitution of superior to the government. i.e. Federal Constitution is a supreme law of Malaysia. Territoriality Principle by which a community is to be defined. Specifies that their membership derives from their residence within borders.

Types of sovereignty 1) -

De jure “According to the law” (created in respect of constitutional law). The legal right to exercise the power. May happen: de jure sovereign may not be able to command obedience while someone else, whose identity may or may not be recognised by law, is actually obeyed.

De facto “The ability in fact to do so”. Government in control. Although it may not be legally accepted as existing. Has no legal claim to sovereignty but exercises necessary force to make and enforce laws. i.e. Palestine vs Israel, People’s Republic of China (mainland China) vs Republic of China (Taiwan).

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The rise of human rights The emergence of human rights affect sovereignty because these “agreed upon” principles set clear limits on the authority of government to act within their borders. i.e. in Malaysia, any action taken by government that is against human rights will be criticised by people. Economic globalisation The growth of multinational organisation has placed constraints on state ability to direct development and fashion social, and economic policy. This is because economic globalisation will increase flow of communications which allows vital information to be shared between individuals and corporations around the world. The globalisation in economy will promote some sort like changes in idea of certain way how economy growth and direction of economy will be directed by not only government, but also multinational organisation. i.e. Michelin, producer of wheel. They control over the manufacturing and business of rubber wheel without any intervention of government. This is because Michelin has full control over the sources. Thus, sovereignty is affected. The growth of international organisations/ supranational institutions Emerges as significant source of authority that place limit in state sovereignty. Member states transcend national boundaries or interests to share in the decision-making and vote on issues pertaining to the wider grouping. In today’s world no state can openly disregard global enactments made by such international organisations, i.e. UN.

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NON-STATE AS LEGAL ACTORS -

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Organisations established not by nation states, but by certain group of individuals, businessmen and other societal forces. Oppose the characteristics of nation states which have absolute power of their countries including borders, sovereignty, religious matters and ethnics. Does not fulfill the requirement of a state. But give impact to particular state especially to the rule-making such as in the country’s administration.

Classifications of Non-state Actors 1) 2)

International Intergovernmental Organisations (IGOs) International Non-Governmental Organisations (IGOs)

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Functions of INGOs -

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IGOs -

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Non-state actors that are created by nation states. Voluntary organisations of sovereign states. Established by treaty or other agreements. Usually have a legislative body which creates legal acts (decisions, resolutions, directives). May be classified by scope and by function. Play significant role by providing means of cooperation and multiple channels of communication among states. i.e. United Nations, IMF, WHO, Organisation of Petroleum Exporting Countries (OPEC).

Functions of IGOs -

Rule making Agenda setting Information gathering

INGOs -

Private institutions that are independent of the government. Established by certain group of individuals, businessmen or societal forces. i.e. Greenpeace, WWF, Amnesty International

Reasons for INGOs’ emergence -

Role of government increased. Government does not respond to the needs of and demand of the people. Pressure from government policies. Communication revolution.

Transnational Government-organised Business and industry Donor-dominated

Provide analysis and expertise, serve as early warning mechanism and help monitor and implement international agreements. Alerting global network of supporters to conditions requiring attention (relief suffering). Creating emergency response around the world. Mobilising pressure from outside states. Enhance public participation within states by reminding government delegates that they are being watched. Gathering information on local conditions through contacts around the world.

Advantages of Non-state Actors 1) -

Helping in solving world crisis Crisis Yom Kippur War (Security Council adopted resolution 338 in 1973) Crisis of Iran 1946 (Security Council adopted resolution 2. Solving world hunger (WFP, Stop Hunger Now, Bread for the World)

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Gain more trust from the people

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Diplomatic relation Help in the international trade and diplomatic ties. i.e. ASEAN – 10 countries participated in Southeast Asia. United Nations.

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Have more of a grass roots focus Usually focus on specific issue. i.e. WFP (food), WWF (wildlife), WHO (health). Can find problems and solutions faster than the government since the government has a lot of matters to take care of. Assisting the government on issues that they may have overlooked.

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Disadvantages of non-state actors 1) -

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Interference of veto power Permanent members of UN (China, Russia, France, USA, UK). i.e. USA has vetoed 32 recommendations regarding the issue of Israel. Implication of neutral ground Principle in ASEAN do not interfere with other country’s sovereignty. i.e. ASEAN towards Myanmar. Cannot solve the problem of Rohingya because practiced the ASEAN principle. Domination of power Price determination. i.e. OPEC determining and dominating the price of oil around the world.

@ Advantages of non-state actors -

Specific issues. Provide the information. Settle economic issue among them. Get cooperation through sort of formal structure. They hold the state sovereignty.

Disadvantages of non-state actors -

Plays lesser role in political issue. State has to give part of their sovereignty. Inequality among the state members. The membership is limited.

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UNITED NATIONS -

Successor of the League of Nations. Failed to prevent world war. Founded in 1945 after the 2 nd world war by 51 countries committed to maintaining international peace and security, developing friendly nations, promoting social progress, better living standards and human rights.

Structure of UN -

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193 state members. 2 non-member states (Holy See and Palestine). Non-members receive standing invitation to participate as observers in the sessions and the work of the General Assembly and maintaining permanent observer missions at Headquarters. Secretariat, General Assembly, Security Council, ECOSOC (economic and social), ICJ.

Aim and Objectives 1) -

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To keep peace throughout the world Agreements on disarmament i.e. the NonProliferation Treaty (NPT) for nuclear weapons. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among states. States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. To develop friendly relations among nations Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States. States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. The duty of states to co-operate with one another. To help nations work together to improve the lives of poor people, to conquer hunger, diseases and illiteracy, and to encourage respect for each other’s rights and freedoms WFP (world hunger – food assistance branch of the United Nations). UN Declaration of Human Rights. UNESCO (education, scientific, cultural).

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To be a centre for harmonising the actions of nations to achieve these goals. Acts as the middleman. Might seem to interfere, but actually paternalistic.

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Secretariat Run day-to-day operation. Provides administrative task. Led by Secretary General (who is appointed by Security Council for five years). Staffs are only answerable to UN, not to the country they operate (i.e. UNESCO Malaysia). General Assembly Main deliberative organ of UN. Composed of representatives from all member states. Decide and pass important policies. Consider and make recommendations on the general principles of cooperation for maintaining internal peace and security, including disarmament. Initiate studies and make recommendations to promote international political cooperation, human rights, ecosoc, etc. Elect non-permanent members of the Security Council and members of other UN councils and organs, recommend the Security Council, appoint Secretary General. Each member has one vote to vote on issues. Security Council Five permanent members: China, France, UK, Russia, USA. Ten non-permanent members elected for twoyear terms by the General Assembly. Carries out the aim and objectives of UN. ECOSOC Responsible for cooperation between states on economic and social fields. i.e. raise standard of living. ICJ Located in Hague, Netherlands. Resolve dispute between states. Judges elected by General Assembly and Security Council for period of nine years. May entertain 1) legal dispute between states submitted to them, 2) requests for advisory opinions on legal relations referred to it.

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Contributions of UN 1) -

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Maintaining international peace and security There are 16 UN peacekeeping operations deployed on four continents. i.e. UN Military Observer Group in India and Pakistan and UN Mission in Liberia. Countering terrorism Counter-Terrorism Implementation Task Force (CTITF) was established in order to ensure coordination and coherence in UN activities on counter-terrorism. i.e. I-ACT Mission 2015.

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Seeing it as a mean for countries who already possess nuclear weapons to keep their weapons and prevent others from developing it.

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Biological welfare Killing people with intentional diseases – for overpopulation.

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States are not bound to bid by the sanctions provided by UN. One of UN’s bodies, ICJ, is created to resolve disputes between states. However, not all states follow the decision of the court. The sanctions provided by UN are not always followed. States are not legally binded to follow UN’s decisions. Therefore it is not effective because these countries are also a part of the world. i.e. Malaysia do not ratify to some of UN’s treaties.

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Protecting human rights UN Human Rights Council. UN Declaration of Human Rights, the first legal document in protecting universal human rights and is generally agreed to be the foundation of international human rights law. Delivering humanitarian aid Helping refugees (UNHCR). WFP sends food aid to Syrian refugees.

Challenges of UN 1) -

Keeping human rights LGBT – everyone has different standards of human rights due to different cultural and religious beliefs.

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Insufficient funding Salary of the staffs Donation Refugee crisis, etc.

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Trying to curb the spread of diseases New diseases keep coming in. Spread too quickly. Could get out of control.

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Limited supply

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Enforcing the law Veto power.

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The threat of nuclear weapon North Korea withdrew from NPT. Announced on March 2016 that they’re going to launch their nuclear soon.

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Keeping countries in a treaty North Korea withdrew from NPT.

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10) Outdated structure 15) The permanent members have veto power. 16) Outgrowing number of members, therefore more states should be able to be permanent members as well. 17) These other states can only pass non-binding resolutions. 18) The big five does not seem to have the intention to give up any power or share it with more states. 11) Increasing demands Not enough peacekeeping troops. States are asked to contribute troops for peacekeeping but it is still not enough. 100 peacekeepers had died last year and dozens have been taken captive. 12) -

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Unreliable funding Funded by voluntary contributions. Not enough donations. WFP had to suspend a food voucher program serving more than 1.7mil Syrian refugees after the donors failed to meet their commitments. Members owed about $3.5bil for regular operations and peacekeeping.

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Failure to achieve UN’s objectives

Effectiveness of UN 1) -

Effective in reducing climate change. Kyoto Protocol. Kyoto, Japan in 1997.

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Successful efforts on helping the people in need WFP. Developed smartphone application: Share The Meal, which is very successful. All that it takes is a single click and $0.50 will be donated to Syrian refugees.

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Terrorism NPT (North Korea, Israel, Pakistan, India) Sri Lanka; The Safe Zone Child Sex Abuse Scandal Veto power of permanent members (one vote will beat others – i.e. China and Russia vetoed the attempt to intervene and prevent genocide in Syria, resulting to 60,000 been killed, with thousands more displaced). The Cold War

Veto power Weaknesses of UN 1) -

Failure to act fast i.e. to curb the spread of diseases. Too slow until the disease is widespread and out of control.

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Wasting the fund Divided into different branches and suborganisations, cost a lot of money. Huge salaries are paid to international staffs. UN is not a business firm which people can make money out of. As a development agency, the fund is supposed to be channeled to help the poor as best as they could. UN must cut the salary of expats in order to make the available funding to the program’s operation and development.

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