冰的起点

'International law is an instrument used by the powerful nations to oppress the weak nations' was a question given by my lecturer as part of the coursework evaluation in the class on 'International Law'. From my reading, I've come out with the following writing to answer the question. It might not be a very good writing, but I think it is one of my best pieces throughout the three years of my study ^_^

INTRODUCTION
Centuries before the emergence of the nation states, interactions between the different continents in the world were limited; precisely, there was no interaction. In fact, communication and interaction were restricted to the poor development of communication system. In those days, relations between the nowadays “nation-states” was limited to the extent that, laws of nations was not required to maintain the then “international system”.

The resolution of the Peace of Westphalia in 1648 eventually marks the beginning of the modern world—the emergence of nation-states and the current international system. However, the existence of international law in the other analogous forms existed far before this modern era. According to John O’Brien (2001), “Records exist of the making of treaties and the sending of ambassadors from at least the time of ancient Egypt” (pg. 5). Indeed the conflict between Egypt and the Hittites in 1269 BC was brought to an end by a peace treaty; nonetheless, around 1100 BC, Ramases II of Egypt concluded an agreement with the King of the Hittites pledging peace and brotherhood. These had actually set the layout of the current international law that is being practiced today.

However, the interaction in today’s international system is a complicated one. The lack of a central authority had left the international system an anarchic. International actors are not only subjected to the state actors; the non-state actors may as well exercise its influence in the global perspective. International relations nowadays are about the interactions between and among international actors—state actors, non-state actors, and those between state and non-state actors. The role of international law has grown world-wide. Yet, the compliance of the international actors to that of the international law remains suspected and blurred, eventually, the accountability of the international law is being questioned, whether the law had actually secured the will and interests of all the nations, regardless of the states’ capacities.

INTERNATIONAL LAW—AN OVERVIEW
There have been a lot of arguments and discussion on the credibility of international law as “law”. Anthony Clark Arend (2004) elucidated that, “…one of the greatest criticism levelled against international law is that it is not really ‘law’” (pg. 903). This is mainly due to the fact that the current international system is lack of a central authority. David Robertson (2002) asserted that, “Legal theorists still debate whether or not international law really is law…because there exists no mechanism for enforcing judgments (pg. 243). However, in this paper work, international law will be discussed in such a way that international law is law and it had been exercised as a diplomatic means to conduct international relations.

International law is being refined as a system that regulates the behaviours of states, where states are the principal actors on the international scene. According to Anthony Clark Arend (2004), international law is “consisting of a set rules that are binding on international actors….the actors to whom it is addressed are under an obligation to carry out these rules”, stressing that the international actors are typically described as binding on both state and non-state actors (pg. 897-898). The ‘Oxford Companion to Politics of the World’ (1993) proposed that, “The body of legal standards, procedures, and institutions governing the social intercourse of sovereign states is known as international law” (pg. 440). On the other hand, ‘The Blackwell Encyclopaedia of Political Thought’ (1991) defined international law as, “that body of rules and usages which collectively govern the relations between and among states. Depending on the context, ‘international law’ can refer to ….positive international law, customary international law, the principles of international law, and the theory of international law” (pg. 246).

International law is divided into public international law and private international law, in which public international law governs the relations between states, and those between states and international organization. Public international law consists of the generally understood rules governing the relations between states, as well as an enormous mass of treaty-based specific regulations (David Robertson, 2002, pg. 243). Thus, it can be concluded that fundamentally, the international law concerns primarily the relations between state actors; whereas the private international law is the body of rules and arbitration agreements covering contractual arrangements between non-governmental bodies from different countries.

What is the ultimate objective of international law? According to ‘The Oxford Companion to Politics of the World’ (1993), the main purpose of international law is to “orient and channel the foreign policy of states so as to further relationships of coexistence and cooperation” (pg. 440). The international law has been used broadly as a diplomatic measure, nevertheless, an instrument of foreign policy of a state to achieve its national interests. In today’s international system, the member countries of the United Nations are obliged to the Charter of the United Nations. Meanwhile, the International Court of Justice (ICJ), International Criminal Court (ICC), World Trade Organization (WTO) and the International Monetary Fund (IMF) serve as the main resource of recommendations that constitute most of the customary and international treaties (sources of international law).

POWERFUL AND WEAK NATIONS
In the justification of such a question, the powerful nations and the weak nations should be defined. Besides that, it is important to clarify the meaning of the question and then the appropriate aspect that should be discussed, to present a better picture of the international scene.

When international law is being seen as an ‘instrument’, it is referring to the usage of international law in a legal means which constitutes to the misuse of international law, but not the violation of international law. In this writing, the violation of international law refers to that of breaking of rules (in the context of international law—the treaties, conventions and customary laws). This is important such that when the violation of international law occurs, the rules-breaker is actually regardless of the existence of the international law. In simple words, when one does anything regardless of the international law that one is obliged to, to that state, the international law actually does not exist, thus it is not being ‘used’ as an instrument.

The term ‘oppress’ in this paperwork is defined as actions including the unjust and immoral actions towards the weak nations, politically, economically and socially. It should be clarified that law does not confine to conform morality and justice. In the spectrum of law, the only distinction that exists is that between ‘legal’ and ‘illegal’. Therefore, the context in which this paper is focusing is: Is international law being used in a legal way by the powerful nations to oppress the weak, resulting in benefits gained by the powerful nations, whereas the weak nations suffering from the damages and casualties that are brought about.

What constitutes a nation to be considered as powerful or weak? In the international system, the powerful nations are fundamentally those with strong economic power, high rate of literacy, nonetheless, and the advanced military power. In the current international system, G8 are considered as powerful nations. On the other hand, the weak nations are those highly dependent on the powerful nations for their capitals in terms of foreign investments, transfer of technologies to assist development of the country. This is distinguished when such countries are actually in debt to the international monetary institutions. These nations include mainly the Third World countries.

Focusing on the use of treaty, the use of force and sanctions, the following part of the paper will be focusing on a few cases that constitutes to the misuse of international law as an instrument to oppress the weak nations by the powerful nations.

THE USE OF TREATY
The Panama Canal: The Surrender of Territorial Sovereignty
The reduction of territorial sovereignty of Panama in a ten-mile-wide strip across the isthmus of the current Panama Canal serves a distinguished example of how a powerful nation—the United States oppressed the weak nation—Panama. The Panama Canal has been the most important sea lines of communication and commercials for the United States, economically and militarily. Since 1903, Panama did not exercise its sovereignty on its own land. Ironically, the United States had been exercising its de facto sovereignty in the canal. In fact, it was the U.S. that put the country under such situation through the 1903 Hay-Bunau-Varilla Treaty.

One of the most important figures who are responsible for the reduction of sovereignty of Panama in the Panama Canal is Philippe Bunau-Varilla, the one upon whom the leaders of the Panamanian revolution had relied for advice. However, Bunau-Varilla was also representing the successor company to Ferdinand de Lesseps’s (who had won a concession from Columbia—the formal colonist of Panama to build the Panama Canal) bankrupt enterprise. He signed the 1903 treaty which gave the Untied States to build a canal and also granted in perpetuity the use, occupation, and control of a ten-mile strip of land across the middle of Panama (adapted from Robert W. McElroy, 1992, pg. 123). In return, the United States granted the independence of Panama, to pay the new government US$ 10 million for the canal and Canal Zone rights, and to pay an annual fee of US$250,000.

Although the Panamanian delegation that later arrived in Washington was devastated by the terms of the treaty, especially the exchange of ‘money’ between Bunau-Varilla and the residual rights to the canal concession, they had no choice but to agree with the treaty. This is done mainly for the raison dêtre of the country. According to Congressional Research Service (1977):
…the United States would withdraw its protection of Panamanian independence if the new treaty were not ratified by Panama. Thus on December 2, 1903, the Panamanian junta, citing the “indispensable need” to guarantee U.S. support for the independence of Panama, consented to the Hay-Bunau-Varilla Treaty and surrendered its powers of sovereignty over the centrepiece of its national territory. (As adapted from Robert W. McElroy, 1992, pg. 124)

The 1903 Treaty is indeed a valid treaty, ratified by the Panamanian government. However, it had greatly oppressed the sovereignty of Panama by using the legal framework of the international law. Using the 1903 treaty, the Canal Zone had its own American police, American court system, and American jails; Panamanians who committed crimes within the Zone were prosecuted by American authorities; overt discriminatory aspects to the administration of the Zone in terms of educations and vacancies, even infrastructures such as drinking fountains for Americans and Panamanians are separated (Robert W. McElroy, 1992, pg. 124). It was indeed a form of ‘Apartheid’ in Panama.

THE USE OF FORCE
The Invasion of Iraq 2003: Pre-emptive Strike: Legality and Morality
After the incident of September 11, the world seems to be drawn into the great phobia towards terrorisms. The United States which suffers the greatest casualties from the collapse of the World Trade Center and the Pentagon was ‘given’ most sympathies by the public community. Aided by Great Britain and Australia, the legality of the military invasion of Iraq in 2003 by the United States was claimed upon the possession of sufficient legal authority to use force against Iraq pursuant to Security Council resolutions adopted in 1990 and 1991. The Bush administration asserted that the U.S. had a legal right to use force “in the exercise of its inherent right of self defense, recognized in Article 51 of the United Nations Charter.
Indeed, the invasion of Iraq in 2003 was fundamentally being launched in the name of self-defense, precisely—it was a pre-emptive strike. Firstly, the nation of Iraq was being accused of possession and development of weapons of mass destructions (WMD), nonetheless, the ‘secret link’ between the state leader—Saddam Hussein and the global Islamist terrorists group—Al-Qaeda. Basically, these are the two main reasons other than the distinguished abuse of human rights in the country. However, the pre-emptive strike launched by the America is questionable, whether it is a way of oppressing the weak nation by using international law.
Adapted from the writing of Anthony Clark Arend (2003) in “International Law and the Preemptive Use of Military Force”:
Under Article 2(4) of the United Nations Charter, states were to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the Purposes of the United Nations.” In the charter, there were only two explicit exceptions to this prohibition: force authorized by the Security Council and force in self-defense. Under Article 38, the council is empowered to determine if there is a “threat to the peace, breach of the peace, or act of aggression.” If the Security Council so determines, it can authorize the use of force against the offending state under Article 42. (Pg. 91-92)

From the writing above, it is clear that any use of force or threat of use of force on the basis of self-defense is legal to be taken. However, there exist some grey areas within the UN Charter of self-defense jurisdiction. Article 51 state that:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security (pg. 92)

The 2003 invasion of Iraq serves no concrete and visible evidence of the country involving in development of WMD; whereas the claimant of Saddam Hussein having connection with Al-Qaeda was simply a falsification. The invasion of Iraq can be viewed as the attempts of the powerful nations to oppress the weak nations, whether in the name of counter Islamist terrorists, or solely for the rich petroleum resources in the land of the Middle East region.

In fact, the Islamist terrorist group is actually a decentralized terrorist network—the non-state international actor. The war in Iraq primarily pointed that the state of Iraq is a terrorist state. Joseph M. Schwartz (April, 2004) asserted that, “The U.S. invasion of Iraq marked a dangerous transformation of the “war against terrorism” into a war against “terrorist states”” (pg. 285). He responded that the invasion of Iraq in the doctrine of ‘just war’ against terrorism threaten the excessive use of state military force instead of an efficacious, nuanced police response to a decentralized terrorist network (pg. 275). According to Michel Chossudovsky (2004), “…the Just War theory in its modern day version is an integral part of war propaganda and media disinformation, applied to gain public support for a war agenda.” This resulted in the violation of the weak nation’s sovereignty, nevertheless, more wars and eventually threatens the global peace.

ECONOMIC SANCTIONS
Iraq: Economic Sanctions since Persian Gulf War
Under Chapter VII of the UN Charter, the Security Council can take enforcement measures to maintain or restore international peace and security. Such measures range from economic and/or other sanctions not involving the use of armed force to international military action. The Council has resorted to mandatory sanctions as an enforcement tool when peace has been threatened and diplomatic efforts have failed. Such sanctions included comprehensive economic and trade sanctions and/or more targeted measures such as arms embargoes (Retrieved from UN Security Council Sanctions Committeess website, 2007).

The well-kept record of the United States manipulation of the sanctions program to Iraq since 1991 portrays a good example of the powerful nations oppressing the weak using international law. Within the UN Security Council, the United States has been oppressing the nation by all means. Joy Gordon (2002) asserted that:
…the United States has consistently thwarted Iraq from satisfying its most basic humanitarian needs, using sanctions as nothing less than a deadly weapon, and, despite recent reforms, continuing to do so. Invoking security concerns—including those not corroborated by U.N. weapons inspectors—U.S. policymakers have effectively turned a program of international governance into a legitimized act of mass slaughter. (Retrieved from Harper’s Magazine—electronic version).

The sanctions that are being posed by the UN on Iraq is said to be the most comprehensive one. According to Joy Gordon (2002), “…virtually every aspect of the country's imports and exports is controlled….an estimated 500,000 Iraqi children under the age of five have died as a result of the sanctions”. He elucidated that:
…the United States has fought aggressively throughout the last decade to purposefully minimize the humanitarian goods that enter the country. And it has done so in the face of enormous human suffering, including massive increases in child mortality and widespread epidemics. It has sometimes given a reason for its refusal to approve humanitarian goods, sometimes given no reason at all, and sometimes changed its reason three or four times, in each instance causing a delay of months. Since August 1991 the United States has blocked most purchases of materials necessary for Iraq to generate electricity, as well as equipment for radio, telephone, and other communications. Often restrictions have hinged on the withholding of a single essential element, rendering many approved items useless. For example, Iraq was allowed to purchase a sewage-treatment plant but was blocked from buying the generator necessary to run it; this in a country that has been pouring 300,000 tons of raw sewage daily into its rivers. (Retrieved from Harper’s Margazine—electronic version).

Therefore, from the case above, it can be concluded that the United States, had been abusing the very fundamental right of a state by imposing sanctions that eventually resulted in the mass destruction in a weak nation, politically, economically, and socially. Such immoral actions were being done by ‘utilizing’ her position in the UN Security Council, using the legal framework of the UN Charter, oppressing the weak nation—in this case, Iraq.

CONCLUSION
Referring to the above examples, it can be concluded that international law is an instrument used by the powerful nations to oppress to weak. Indeed, in term of international treaties, in the use of force, even the economic sanctions which sound just, both the intention and the implications of such international law had resulted in various damages to the weak nations, politically, economically and socially. Although the use of international law in such occasions is legal, it was immoral and unjust to the Third World nations involved. These nations become the victims under the legal framework.