International Law Essay

An international legal order is not just a matter of prudence; it is a requirement that derives from a rather essential moral obligation, the (limited) obligation to help ensure that all persons have admittance to institutions that protect their most essential human rights (DJ Harris, 1991). Though, offered international legal order gives a prominent role to states need not consequence in overly conservative conclusions[1]. International law whose major elements must be justice rather than politics based in two senses: (1) justice, understood mainly as respect for basic human rights, serves as the basic vantage point from which to assess the existing international legal system and to originate proposals for improving it; and (2) a recognition of the moral compulsion to help ensure that all persons have access to institutions of justice understood as institutions that care for their basic human rights—supplies the chief moral cause for trying to develop an international legal system directed by the ideal of justice. International law can be stated in the form of four basic theses. (1) Justice has to to be a primary goal of the international legal system, where the major content of justice is supplied by an outset of basic human rights. (2) Legality, both for states (understood as long-term institutional structures) and governments (understood as collections of agents inhabiting key institutional roles) requires a convincing effort to please at least a minimal threshold standard of protection of basic human rights by means that value those same rights. (3) Rights of autonomy are constrained by the claims of legitimacy, and therefore eventually by justice. The right to pull out, understood as the unilateral right or nonconsensual entitlement to seek autonomous statehood by groups currently within the jurisdiction of a state, is a corrective right only, a right that a group comes to have by virtue of importunate and serious violations of the human rights of its members, or of rights given on them by intrastate autonomy agreements, or by virtue of infringement of the rights of legitimate states (as when one state unfairly annexes another). Hence there is no right to separate from a legitimate state with a legitimate government, unless secession is by mutual agreement or constitutional provision. (4) Groups can have legitimate interests in diverse forms of self-determination short of secession without having a right to pull out, and the international legal order ought to give active support for democracy (Katzenstein, Peter, 1996). Recognizing that we ought to use our domestic political resources to hold a system of international law intended to ensure that all persons’ rights are respected is quite companionable with a clear recognition that government has no independent moral status and no independent legitimate interests, but is to be considered strictly as a fiduciary, and that the state is formed for individuals rather than vice versa (Martin Dixon & Robert McCorquodale, 2003). However, the trick is to understand how popular sovereignty in a system of states can be made well-suited with state policy in support of a more just international legal order. The means to seeing how this compatibility can be attained is to realize that popular sovereignty does not mean unlimited sovereignty[2]. Instead, popular sovereignty means simply that the people of a state are the definitive source of political authority within the state and that government is primarily to function as their agent. The degree of the peoples’ sovereignty—including the limits placed on it by international law and the moral limits on how it might be exercised that are imposed by the natural duty of justice—are another matter. According to moderate cosmopolitanism, we do have moral compulsions beyond our own borders, but these are seen as being well-suited with giving special priority to the requirements and interests of our fellow citizens. The view is cosmopolitan as it distinguishes genuine moral obligations to those outside our own polity, and that for this reason the special precedence given to our own polity cannot be absolute. It is reasonable because it rejects the extreme cosmopolitan position that all of our particular obligations, together with our obligations to our fellow citizens, are severely derivative upon our obligations to humanity at large. The shift from the optional association view to recognition of the justice understood as a restrained cosmopolitanism does not end debates concerning whether and how to use our state’s resources to sustain efforts to achieve moral progress in and through international law; it only makes it probable to engage in them. For one thing, there is the exceptionally difficult issue of how much priority we might give to our own interests and how great the costs are that we should bear in helping to protect the rights of those who are not our fellow citizens (Martin Dixon, 1993). One of the most reflective changes that have occurred in the international legal system since the 1960s is that partaking in the processes that specify the content of human rights has been deeply broadened, as membership of the UN became open to all countries, including former colonies. In contrast, all through most of the history of the international legal system, membership was restricted to a handful of Western states. Perhaps even more significant, the significant growth of transnational, nongovernmental organizations increasingly allows for meaningful participation in the development of specifying norms that is not completely controlled by states[3]. There are two motives to welcome these developments. First, broader participation can be apparent to reduce the risk of parochial biases in moral reasoning concerning which rights are truly human rights and how their content is to be tacit The specification of human rights norms that would consequence from a process of operationalization in which the simply participants were Westerners or representatives of Western states might be quite diverse from one in which a broader sampling of humanity participated. Second, quite excepting the fact that broader participation is, other things being equal, more probable to capture effectively the content of norms that are supposed to apply to all human beings, not just to Western Europeans, subjectively restricted participation impugns the legality of the process of operationalization and thereby threatens to weaken the effectiveness of appeals to human rights in the international legal order as a whole. The first benefit of extensive participation is epistemic, the idea being that a system that features broad participation is more expected to result in an accurate requirement of the content of human rights norms; the subsequent concerns procedural justice and its contribution to professed legitimacy, not the quality of the outcome of the process. By attributing the right to be renowned as a legitimate state to a new political entity, the international legal order signals that it is all set to take its place in the system of states, fulfilling the functions that only states have and enjoying the rights, liberties, privileges, and immunities atypical to states. By uncoupling the legitimate interests that diverse groups can have in self-determination from the independent right to secede, and by extrication self-determination from nationality, the international legal order can and must encourage creative departures from the centralized-state; â€Å"unbundled† autonomy paradigm that fuels secession yet virtually never solves the problems that give rise to it. Limitation of the unilateral right to secede to a corrective right would liberate states to consider intrastate autonomy arrangements without getting on a slippery slope toward their own dissolution[4]. Discontent minorities would be expectant to opt for intrastate sovereignty as an alternative to secession by reassuring them of international monitoring of and support for conformity with autonomy agreements in high-risk cases. Dangerously broad references in international legal documents to an international legal right to autonomy should be replaced by clear statements of the independent right to secede as a remedial right only and by language that uncouples the right to pull out from legitimate interests in autonomy and uncouples self-determination and nationality. International law must support the legitimate interests of national minorities by intensification human rights against discrimination and by encouraging states to search forms of intrastate autonomy, rather than by recognizing a â€Å"right of autonomy of peoples† that legitimizes secession by such groups (Samuel Barkin and Bruce Cronin, 1994). International recognition of a unilateral right to intrastate independence in certain special, rather narrow circumstances. First while international law recognizes a group’s right to secede, it must also distinguish the right of the group to opt for intrastate autonomy if it so chooses. Second, while a group (whether it is a nation or not) qualifies on corrective grounds for a unilateral right to disaffiliate but opts instead for intrastate autonomy, the international legal order must recognize its legal right to independence and play a positive role in negotiations to originate an appropriate intrastate autonomy arrangement and must apply appropriate measures to monitor conformity with it. Third, international law must recognize and support intrastate autonomy for indigenous groups when they are desired to rectify serious injustices suffered by such groups. Fourth and finally, where establishment of an intrastate autonomy establishment for a minority is the only way to avert it from suffering large-scale violations of basic human rights, an intrastate autonomy regime can be imposed upon a state through a proper international legal process (Ruggie, John Gerard, 1993). The international legal community must construct a more ethically defensible and practicable international legal practice regarding involvement for the sake of protecting basic human rights, one that does not need Security Council authorization in every instance (under the current arrangement in which each undying member of the Council has a veto). A new practice of intervention, so far as it pertains to secessionist conflicts, should be shaped by and consistent with the remedial right only approach to an international legal right to unilateral secession. Subject to apt constraints that apply to justified humanitarian interventions usually (proportional force, protection of noncombatants, etc.), states must be allowed under international law to mediate to support groups that are known in international law as having the unilateral right to secede, if other means of restoring the group’s grievances have failed or offer little viewpoint of success in a timely manner[5]. Generally speaking, international law must prohibit states from intervening militarily to support secession by groups that are not renowned under international law as having the independent right to secede and should support legitimate states in their efforts to resist illegal secessions. Exceptions to this overview could include cases where the state has endured in using unlawful means of war to restrain an illegal secession (for example, indiscriminate and/or inconsistent military force or efforts to suppress the secession that amount to genocide). References: DJ Harris, Cases and Materials on International Law Fourth Edition, (London: Sweet and Maxwell, 1991). J. Samuel Barkin and Bruce Cronin, â€Å"The State and the Nation: Norms and the Rules of Sovereignty in International Relations†, International Organization 48, 1 (1994): 107-8. Katzenstein, Peter J., ed. The Culture of National Security: Norms and Identity in World Policies. New York: Columbia University Press, 1996. Martin Dixon & Robert McCorquodale, Cases and Materials on International Law (4th ed., Oxford; New York: Oxford University Press/Blackstone Press, 2003). Martin Dixon , Textbook on International Law, 2nd ed. ( London: Blackstone Press, 1993). Ruggie, John Gerard. â€Å"Territoriality and Beyond: Problematizing Modernity in International Relations.† International Organization 47, no. 1 (1993): 139–174. Foot Notes Slaughter, Anne-Marie, ‘International Law and International Relations Theory: A Dual Agenda’, American Journal of International Law 87 (1993). Teson, Fernando, A Philosophy of International Law (Westview, Boulder, CO, 1998). Rubin, Alfred, Ethics and Authority in International Law (Cambridge University Press, Cambridge, 1997). Scheffler, Samuel, ‘Conceptions of Cosmopolitanism’, Utilitas 11 (1999). Kingsbury, Benedict, ‘Sovereignty and Inequality’, European Journal of International Law 9 (1998). [1]   Slaughter, Anne-Marie, ‘International Law and International Relations Theory: A Dual Agenda’, 205-39 [2] Kingsbury, Benedict, ‘Sovereignty and Inequality’, 599-625. [3] Scheffler, Samuel, ‘Conceptions of Cosmopolitanism’, 255-76. [4] Teson, Fernando, A Philosophy of International Law, 78-79. [5] Rubin, Alfred, Ethics and Authority in International Law, 122.