It is conventional wisdom that humankind has reached a common consensus on the need to agree upon certain fundamental laws of governance since the dawn of the concept of society. As people evolved from basic social groupings into politically varied and complex societies, it was very clear that more sophisticated forms of law were needed to keep up with these societal developments. We can narrow down this process into four historical periods – the ancient period, the medieval period, the modern age, and the era of organized states.[1]
There is a consensus among scholars of international law that the regulation of international laws was not established until the 1648 Treaty of Westphalia which paved the way for the emergence of sovereign, self-governing states.[2] The principle of international balance was established as a result of this treaty, meaning that if any state attempts to expand its territory via intervention into another, other nations must unite to prevent this expansionist move in order to ensure international stability. This was considered a substantial step forward for international law, prompting further discussions between international law experts and politicians in many countries, which paved the way for a number of international conventions, most notably the Helsinki Accords of 1975 that adopted the Declaration of Helsinki.[3] This, like the 1815 Congress of Vienna before it,[4] was regarded as the grounds for establishing a positive new model for inter-state relations in continental Europe through regulating the relationships between European states and ensuring international stability. Other agreements, such as the Hague Conventions of 1899 and 1907,[5] played a similar positive role: while the former was more specifically European in nature, the latter was clearly intended as a universally applicable treaty. It is safe to say that the most important outcome of these conventions was the establishment of The Hague’s Permanent Court of Arbitration,[6] the first international judicial entity to which states could turn to for assistance in conflict resolution. The establishment of this body was a great step forward for the world, helping to ensure that sustainable security and peace internationally had become more feasible goals for all peoples.
Despite all of these efforts, the world would later find itself engulfed by the First World War in 1914.[7] This was followed by the Paris Convention of 1919[8] which prominently featured the establishment of the League of Nations,[9] the first international institution vested with the power to address peace-threatening international disputes.[10] The League of Nations would subsequently take the decision to establish a separate entity specifically tasked with investigating disputes of a legal nature, namely the Permanent Court of International Justice.[11] Regarded as one of its most significant international agreements, the League of Nations also brokered the Geneva Protocols in 1928 to further bolster international peace and security.[12]
All of these major efforts, however, were not enough to prevent the outbreak of the Second World War in 1939. WWII was capped by another international meeting in San Francisco in April 1945 to lay the foundations for the establishment of the United Nations.
One can see a clear pattern throughout the evolution of state-related legal debate, from its beginnings to the foundations of modern international law, which is that the principles of peace, security, and justice must be actualized, and that those who violate and break these principles must be held to account and dealt with. Both of these principles are fundamental for the construction of a stable international system in order to eliminate the horrors of war and avert its many associated evils. The founders of modern international law managed to make significant breakthroughs by establishing international tribunals responsible for prosecuting those who violate peace and security, under which the responsibility of a state does not negate the responsibility of an individual. This was demonstrated in the Rome Statute of the International Criminal Court which focused on trying individuals,[13] as did the Nuremberg Trials[14] and the Tokyo War Crimes Tribunal before it.[15]
Nonetheless, the implementation of this legislation has been woefully inadequate, an unfortunate outcome that can be explained by the flaws of the structures of the international system itself. The Charter of the United Nations, for instance, maintains unrestricted power for the five permanent members of the UN Security Council,[16] particularly in respect to political decision-making, which is, after all, its primary and most important role. These five permanent member states were not elected democratically by the UN General Assembly that reflects the countries of the world; there is no form of any devolution of power, meaning that these five permanent members are able to remain in their positions in perpetuity; and they are able to exercise veto power over any decisions that run counter to their own narrow state interests. This kind of absolute, unchecked power can be viewed as an example of authoritarianism and pragmatic dictatorship within the global decision-making process.[17]
This being the case, there is little to compel the UN Security Council to act, even when a crisis occurs that gravely threatens to disrupt international peace and security. Who, if anyone, can hold the UN Security Council accountable if it is unwilling to carry out its most basic of functions? Even if the countries of the world wished to modify the Charter of the United Nations to be more just and democratic, this would require, according to Articles 108 and 109 of the UN Charter,[18] the agreement of two-thirds of the member states, including all the five permanent Security Council members. This is unlikely, given that none of the five permanent member states would be willing to voluntarily relinquish the massive authority granted to them by the UN Charter, due to the political and economic benefits that it confers. This means, in effect, that it is impossible to carry out any actions or modifications, however essential, which might inconvenience or displease any of the world’s most powerful states.
What we are trying to explicitly state is this: when any given state violates the Charter of the United Nations or the rules of international law, threatening international peace and security, the Security Council currently addresses the issue on the basis of pragmatism and political self-interest rather than on the basis of law and principles. Reaching a state of harmony between the five permanent member states can take weeks, months, or even years before any decision or action is taken to stop an aggressor state, whether the act of aggression by the state in question is external – against a neighboring country, or domestic – against its own people.
The critical situation in Syria, which began in 2011, is the clearest example and indictment of the Security Council’s failure to act to stop the threat posed by the Syrian regime to international peace and security. This failure is caused by the opposition to any such remedial action from two of the government’s allies who are permanent members of the Security Council, namely Russia and China, despite the fact that the death toll in Syria has now exceeded 400,000 people according to the Secretary-General of the United Nations.[19]
In addition, approximately 13 million people have been displaced to date, either internally or abroad,[20] while Syria’s infrastructure and buildings have been largely destroyed throughout much of the country. The United Nations Commission of Inquiry has categorically stated in all of its reports since 2011, that the Syrian government, under the leadership of Bashar al Assad, has perpetrated and is still perpetrating crimes against humanity, covering a wide range of violations. [21] Whilst it is true that the Syrian case is the most obvious example of the failure and politicization of the Security Council, it is certainly not the only case, but part of a long list of conflicts including, for example, Rwanda[22] and Bosnia.[23] The London-based International Institute for Strategic Studies recently highlighted some of the long-term challenges posed by the failure of the UN to take decisive action in armed conflicts around the world.[24]
In conclusion, while it is true that any state which violates peace and security is liable under current international law to face international isolation and economic sanctions, these tools are woefully inadequate to end any act of aggression or armed conflict. It is imperative that we find less politicized, more effective and rapid forms of response to resolve conflict and achieve security and justice. More importantly, we must rely on legal guidelines and base our response to transgressions on the fundamental objective of defending human rights.
[1] Malcolm N. Shaw, International Law (5th edn, Cambridge University Press [2003]) [13].
[2] Treaty of Westphalia 1648 <https://is.muni.cz/el/1423/podzim2008/MVZ430/um/Treaty-of-Westphalia.pdf> November 11, 2018
[3] Organization for Security and Co-operation in Europe (OSCE), Conference on Security and Co-operation in Europe (CSCE): Final Act of Helsinki, 1 August 1975 <http://www.refworld.org/docid/3dde4f9b4.html> November 11, 2018
[4] Congress of Vienna 1814-1815 <https://archive.org/details/congressofvienna00webs/page/n7> November 11, 2018
[5] Hague Peace Conferences 1899 and 1907 <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e305> November 11, 2018
[6] Permanent Court of Arbitration <http://www.haguejusticeportal.net/index.php?id=311> November 11, 2018
[7] John Graham Royde-Smith, Dennis Showalter, World War I <https://www.britannica.com/event/World-War-I> November 11, 2018
[8] Convention Relating to the Regulation of Aerial Navigation Signed at Paris, October 13, 1919 < http://library.arcticportal.org/1580/1/1919_Paris_conevention.pdf> November 11, 2018
[9] UNOG Library, Registry, Records and Archives Unit, History of the League of Nations, <https://www.unog.ch/80256EDD006B8954/(httpAssets)/36BC4F83BD9E4443C1257AF3004FC0AE/$file/Historical_overview_of_the_League_of_Nations.pdf> November 11, 2018
[10] League of Nations, Covenant of the League of Nations, 28 April 1919, Art. 8, Art. 10, Art. 11, Art. 12, Art. 13, Art. 14, Art. 15, Art. 16, Art. 17.
[11] Permanent Court of International Justice < https://www.icj-cij.org/en/pcij> November 11, 2018
[12] Protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare <https://www.un.org/disarmament/wmd/bio/1925-geneva-protocol/> November 11, 2018
[13] Rome Statute of the International Criminal Court < https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf> November 11, 2018
[14] The Editors of Encyclopaedia Britannica, Nürnberg trials <https://www.britannica.com/event/Nurnberg-trials> November 11, 2018
[15] International Tribunal Court for The Far East <http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.3_1946%20Tokyo%20Charter.pdf> November 11, 2018
[16] United Nations, Charter of the United Nations, Art. 12(1), Art. 24(1), Art. 41, Art. 42, Art.43, Art. 48(1), Art. 53(1).
[17] Dimitris Bourantonis, The History and politics of UN Security Council Reform (Edition Taylor and Francis, 9781134394494, [2004]).
[18] United Nations, Charter of the United Nations, Art. 108, Art. 109.
[19] Syria conflict: 2017 deadliest year for children, UN aid official reports, March 13, 2018 < https://news.un.org/en/story/2018/03/1004802> November 11, 2018
[20] UNHCR, Syria Emergency, <https://www.unhcr.org/syria-emergency.html>
[21] Independent International Commission of Inquiry on the Syrian Arab Republic, Reports < https://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/Documentation.aspx> November 11, 2018
[22] Amnesty International, Amnesty International Report 1995 – Rwanda, January 1, 1995 <http://www.refworld.org/docid/3ae6a9fe48.html> November 11, 2018
[23] Amnesty International, Amnesty International Report 1995 – Bosnia and Herzegovina, 1 January 1995 <http://www.refworld.org/docid/3ae6a9f01f.html> November 11, 2018
[24] The International Institution for Strategic Studies, Humanitarian Implications of Armed Conflict in Cities, December 2017 <https://www.iiss.org/publications/strategic-comments/2017/armed-conflict-in-cities
