International Law: Managing Transactional Issues
The primary goal of international law is to promote the growth of global peace and prosperity. International law is enshrined under the international legal system, which is characterized by complex and complicated rules and regulations (Messenger 2015). Some areas in which international law has expanded entail issues on crime, disease, and the environment. These areas viz., crime, environment, and disease constitute a fundamental component of international security. According to the United Nations infectious diseases, environmental degradation and organized crime have become a key component of the changing threats to international security (United Nations 2017). This paper critically evaluates whether the expansion of international law to new areas like environment, disease, and crime has been effective. The expansion of international law to new areas like the environment, disease, and crime has been fully effective, but has to some extent solved some challenges.
Background
The complication of the legal system arises from the fact that it is comprised of actors and institutions from diverse jurisdictional boundaries. Conversely, the complexity of the international legal system emanates from the fact that it is dynamic. Thus, international law is subject to change to successfully address emergent international issues. Messenger (2015) asserts that “international law develops within this world responding to and influencing the institutions and actors with which it engages” (p.111). Thus, international law has been developing over the years in response to accommodate different areas such as environment, disease, and crime.
The dynamism associated with international law has contributed to its expansion. According to Herik and Stahn (2012), the expansion of international law has led to significant fragmentation and diversification of international law. Agius (2014) asserts that the expansion of international law comprises of the formulation of law needed to deal with substantive fields. Additionally, Alter (2014) asserts that fragmentation and diversification of international law are increasingly being perceived as a sign of the vitality of international law. Cassese (2005) thinks that power under international law is dispersed and fragmented. Alter (2014) argues that there are a growing number of treaties, adjudicative bodies, and institutions that are aimed at improving the efficacy with which international law addresses different cross-boundary issues. Nevertheless, Koskenniemi (2006) asserts that the diversification and expansion of international law have led to significant challenges to the interpretation of international law.
Discussion and Analysis
International Law and Crime
Even though countries have the power to legislate, adjudicate, and execute on matters related to criminal issues, international law also has the power to impose punishment and deal with certain issues on crime. In addition, the modern rules of international law related to human rights have resulted from the silent revolution of the 1940s that advocated for the rights of the people. Cohen (2004) asserts that international lawyers consider criminal jurisdiction as a critical component of a country’s sovereignty. Binder (2013) emphasizes that “irrespective of the fact that criminal jurisdiction is mainly applied by national and sub-national governments; offenses can be prescribed and punished by international law” (p. 279). Different types of crime can be adjudicated under the international law. Some of the most notable aspects include war crimes, safe trade, and piracy. The emergence of different types of crime has also led to the inclusion of genocide and crimes against humanity as some of the issues that can be adjudicated under international law (Binder, 2013). This is necessary to ensure that crimes that are against the international people are reported and those found culpable prosecuted. Thus, international law has developed to accommodate crimes such as apartheid, hijacking, terrorism, and genocides as well as crimes against humanity.
The past few decades have been characterized by remarkable growth in the need to promote peace within the society. This is underlined by the emergence of the Responsibility to Protect (R2P), which is enshrined under international law. The rationale of the R2P is to protect the international community against the occurrence of crimes of mass atrocities within sovereign states (Joyner, 2007). The emergence of the concept of R2P has remarkably contributed to the restoration of peace in different countries and regions across the world. Examples of such regions and countries include Darfur, Rwanda, Kosovo, and Bosnia (Williams, Ubrick & Worboys 2012). Diverse tribunals have been established in the past to deal with certain types of crimes. For example, an ad hoc international tribunal was established to deal with the civil conflicts in Rwanda and Yugoslavia (Binder, 2013). These conflicts escalated to the extent that the sovereign states were not in a position to protect their citizens from the war.
The formulation of the Rome Statute, which led to the establishment of the International Criminal Court, further underlines the efforts that have been formulated to deal with crime on an international level. The International Criminal Court has over the years made significant progress in adjudicating international crimes. Its effectiveness arises from the fact that it confers the countries that are signatories to the ICC to seek legal redress to punish crimes against humanity, war crimes, and genocide (Binder, 2013). In punishing crime under international law, the ICC is guided by the Rome Statute as opposed to national codes.
The adjudicative bodies established under international law have the power to punish international crimes that occur in different jurisdictions that are signatory to international law. Although critics argue that the application of international law contravenes a country’s sovereignty, the rationale behind the application of international law lies in the fact that a country that abuses humanitarian rights forfeits the protection of its sovereignty (Sohn, 1982). Binder (2013) asserts that the failure by some countries to protect their citizens against criminal violence justifies the application of extraterritorial criminal jurisdiction (ETJ) by other states (p. 281). The application of the ETJ beyond the normal boundaries has been promoted by development of the international law and globalization, which has made the world a global village.
Despite the progress made in dealing with international crime across countries, international law has not been entirely successful. The failure of international law to promote peace has arisen from the fact that not all countries are signatories to international law. Another major factor that has contributed to the ineffectiveness of international law is underlined by the preference for difference concerning the method of curbing international crime. For example, the UN Charter restricts the international community against using force in dealing with crime. The use of force can only be authorized under Chapter VII of the UN Security Council (Williams et al., 2012). All members of the United Nations (UN) have now vowed to take independent and combined action in conjunction with the UN to attain the great goals.
Based on this aspect, one can argue that international law has remarkably contributed to the effectiveness of international law in maintaining a country’s sovereignty. Messenger (2015) further argues that the application of international law in curbing international crime is further limited by the prevalence of competing interests between a country’s sovereignty and the need to preserve human rights. According to Williams et al. (2012), "The conflict caused by competing interests of human rights and national sovereignty led to doubt about how far the international community might go to intervene in a sovereign state in the face of major human rights violations” (p.477). In this context, questions have been raised related to the effectiveness of the Security Council to intervene in matters that were wholly within the borders of a state. Nonetheless, the UN can lawfully take action with the intent to stop mass human rights violations. The lack of effectiveness resulted in the death of one million people in Rwanda and Bosnia but also resulted in the military intervention by NATO to prevent continual mass human rights abuse in Kosovo.
The prevalence of conflict between a country’s sovereignty and the need to preserve human rights through the application of the concept of R2P, which is enshrined in international law, has negatively impacted the effectiveness of international law in curbing international crime such as mass atrocities (Joyner, 2007). ). This aspect is well outlined by the case of Kosovo in which President Slobodan Milosevic ordered an attack on the Albanian civilian as a part of his military campaign against the Kosovo Liberation Army. During the initial phase, the United Nations Security Council responded by enacting Resolution 1199, which prohibits violation of human rights (Williams et al., 2012). In enacting the resolution, the Security Council demanded the parties involved in the conflict desist from engaging in the violation of human rights.
Even though President Milosevic continued with the civilian attack, the UN Security Council did not impose stronger measures to end the violation of human rights. As a result of the UN Security Council's failure to apply international law as required under Chapter VII of the UN Charter, NATO responded by conducting a 77-day air strike campaign, which successfully ended the conflict in Kosovo (Williams et al., 2012). This aspect illustrates that despite the expansion of international law to cover international crime; its effectiveness in dealing with crime is significantly limited.
International law and disease
The emergence of infectious diseases around the globe has resulted in the development of international law that provides regulations on how to make controls. Fidler (1996a) pointed out that “numerous multilateral treaties and the subsequent adoption of the International Health Regulations ("IHR") by the member states of the World Health Organization ("WHO") indicate international cognizance of the cooperation critical to the control of infectious diseases” (p. 493). Thus, international law plays a significant role in the history of states to cooperate and collaborate to control the spread of infectious diseases. Nonetheless, the re-emergence of infectious diseases in the 1960s resulted in the revision of the IHR to accommodate new global circumstances. The duties of the states have been to notify the World Health Organization (WHO) in case of cholera, yellow fever, and plague outbreaks and to react to disease outbreaks experienced in other countries. Nonetheless, “the IHR has failed badly because states routinely ignore the duties of notification and limited response to disease outbreaks in other states” (Fidler, 1996a, p. 495). Thus, the IHR has been ineffective in terms of ensuring people are protected from the spread of infectious diseases from an international perspective.
Despite the aforementioned challenges related to international law's effectiveness and control of infectious diseases, international law played a significant role in promoting infectious disease diplomacy. For instance, the IHR which are legally-binding regulations were adopted under the WHO to focus on global surveillance for infectious diseases. By Aginam (2002), "In the modern era, the constitution, charters, and legal framework of most international organizations (WHO, WTO, FAO) provide for international legal mechanisms in forging consensus on a range of issues overtly or covertly related to the transboundary spread of communicable diseases" (p. 949); however, Thus, international organizations have been able to effectively function in terms of controlling the spread of communicable disease as safeguarded by the international law. Subsequently, presently public health is no longer the perquisite of epidemiologists and physicians, but international health bodies. International health law has included elements of human rights, international trade law, food security, environmental law, human reproduction, weapons and wars, and organ transplantation to promote global communicable disease control (Aginam, 2002). Although international law is still viewed as having a limited utility in terms of addressing global health challenges, it could play a significant role if better mechanisms were incorporated. For instance, if states started to feel that international laws protect their populations from communicable disease threats, then international measures incorporated under the WHO would be effective.
State authorization is required for international disease law to be effective. This implies that sovereignty and the ability of states to exercise it determine the effectiveness of international legal rules (Brownlie, 1990). In the adoption of legal strategy for the emergence of infectious diseases, the WHO has been expected to influence its members to abide by international law to control the disease emergence. The primary significance of the state and its sovereignty institutes a fundamental weakness in international law since international legal rules are a reflection of the compromises made to realize agreement through international law (Fidler, 1996b). Thus, despite the efforts to ensure that international law controls diseases; the issue of sovereignty has prevented its full effectiveness and the full coverage of diseases. Also, the unwillingness of WHO member states to be committed to the prevention and control of serious infectious disease control measures could have been prevented by the perception that the laws would undermine the sovereignty of member states. The lack of effective enforcement of international law is a problem that has hindered the functionality of international law to its fullness. Moreover, States have continued to agree to international legal obligations without taking any serious intent to fulfill them (Fidler, 1996b). The alleged failure of the IHRs could have been as result of member states of WHO legally fulfilling the duties, which they solemnly accepted. The WHO lacks the power to enforce compliance (Fidler, 1996b). Thus, there is a likelihood that an international legal regime on the control of emerging diseases would face the same enforcement problem.
The WHO aims to promote maximum protection against the spread of international diseases to the people by requiring members to develop national surveillance systems that meet international minimum requirements (Fidler, 2003). The history of IHR violations is accompanied by the member-state unwillingness to limit sovereignty, members are less likely to bind to minimum standards. As such, the development and implementation of international law to control diseases has not been fully effective because a majority of the member states have failed to agree to the minimum standards for national surveillance. Unindustrialized countries have also opposed legal requirements to improve their national surveillance without any financial commitment from developed countries. According to Fidler, (1996b), the objective of the IHR has been to promote the maximum protection against international disease spread by member states without any form of minimum interference. As such, member states have adopted a legal system and measures to ensure that cholera, plague, and yellow fever are not spread across boundaries. The WHO provides recommendations related to how its member states must handle public-associated health emergencies that are of international concern (Fidler, 2003).
The evolution of international health law has resulted in the promotion and protection of human rights linked to physical and mental integrity. The International Bill of Rights, the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social, and Cultural Rights (1966) were developed to develop health and human rights. For instance, international law has been adopted to ensure the protection of women's health issues and HIV/AIDs. Taylor (2008) pointed out that noted that in the late 1980s, the human rights approach to the global HIV/AIDS pandemic “compelled governments to be publicly accountable on an international stage for their actions against persons living with HIV/AIDS” (p. 669). International human rights law has resulted in the incorporation of public health, and as a result, the HIV/AIDS pandemic has been part of international human rights law (Patterson, & London, 2002). Thus, international human rights laws have been effective in protecting people living with HIV/AIDS from being discriminated against. Also, obligations have been imposed on governments to protect, respect, and fulfill the human right of the citizens to health via the adoption of prevention and treatment programs, which are universally available (Patterson, & London, 2002). Lastly, to some extent, International human rights law has contributed to vertical strategies that control communicable diseases within states.
International Law and Environment
International Environmental Law (IEL) focuses on the control of pollution as well as the depletion of natural resources to achieve a sustainable environment. The IEL has become part of public international law, which was created by states for states with the intent to provide governance on problems that arise between states. Park (2013) has contended that the IEL was created as an institution that would establish regulations and rules for managing environmental problems that cannot be solved by single member states. The rationale for IEL was to pursue the minimum order and ensure sound environmental management via the satisfaction of equitable problems. International environmental law has been effective compared to international law of diseases. For instance, it has been able to overcome the same challenges encountered by WHO's international legal effort to control emerging disease control (Fidler, 1996b).
The development of international environmental law was based on the crafting of new international legal rules rather than old ones with the intent to deal with the global threats posed by pollution and to promote compliance and enforcement of laws (Birnie, 1992). Park (2013) has noted that the IEL has the power to punish Member States involved in environmental depletion and pollution of the environment. Pollution is defined by the UK Environmental Protection Act as the release of harmful substances into the environment resulting in potential harm to man and other living organisms (Parker, 2013). To ensure environmental protection, the Kyoto Protocol was established under international law to ensure the reduction of GHG emissions into the atmosphere. This has previously been confirmed under the Rio Declarations (1992) and the Stockholm Declaration of 1972. Under the Kyoto Protocol, member states acknowledge and agree on the adoption of specified levels of GHG emissions, hence international responsibility by developed nations to safeguard the environment.
Between 1990 and 1999, 86 multilateral environmental agreements were developed and adopted to promote climate change and a sustainable environment (Tanaka & Matsuoka, 2010). According to Hurrell and Kingsbury (1992), States have come to terms with handling global environmental problems without the inclusion of international rules and cooperation could be challenging. Additionally, states now know that addressing environmental concerns requires changes for companies and governments within states and cooperation to promote the effective implementation of international agreements (Hurrell & Kingsbury, 1992). Improving environmental conditions is a solution that can be achieved via international agreements and by state members. The basic obligation under international environmental law is "not to cause environmental damage to the environment of other States or areas beyond the limits of national jurisdiction" (Schrijver & Weiss, 2004, p. 238).Conclusion
The international law was developed with the intent to enhance the development of global peace, unity, and prosperity. International law has over the years developed to accommodate various areas, including environment, disease, and crime. Nonetheless, its expansion has been fully effective, although it has acted as a deterrence to some of the world's challenges. For instance, IEL has ensured that States can work together to reduce GHG emissions and promote a sustainable environment. Regarding crime, international law plays a major role in the protection of people from atrocities associated with mass murder and actions against humanity. However, it has not been effective since the formation of the ICC has not punished and prosecuted criminals. The issue of sovereignty has hindered the full adoption of the international law to control infectious diseases. There has been a failure in global environmental governance because of the deficiencies associated with the environmental negotiation process and mechanisms for monitoring its use of IEL are scant and lack binding force.
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