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Tuesday, November 27, 2018

State collapse

From Wikipedia, the free encyclopedia

State collapse, breakdown, or downfall is the complete failure of a mode of government within a sovereign state. Sometimes this brings about a failed state, as in the Somalia and final decade of Yugoslavia. More often, there is an immediate process of transition to a new administration, and basic services such as tax collection, defence, police, civil service, and courts are maintained throughout, as in South Africa following the failure of the apartheid system.

State collapse may coincide with economic collapse. State collapse is not always synonymous with societal collapse, which often is a more prolonged process.

Not all attempts at regime change succeed in bringing about state collapse. The 16th-century Babington plot to assassinate Queen Elizabeth I of England, the 19th-century Decembrist revolt in Russia, and the 20th-century Bay of Pigs invasion of Cuba failed.

History of the concept

For Aristotle (384–322 BC), the inherent dangers of democracy were, first, that conflict between the aristocracy and the poor was inevitable; and second, that it would usher in "mischief and corruption". Both processes would lead to collapse unless independent controls and separation of powers were enforced. The ancient Greek philosopher Polybius (c.200 – c.118 BC) asserted that all nations follow a cycle of; democracy, oligarchy, dictatorship, tyranny and collapse.

Islamic scholar Ibn Khaldun (1332 – 1406) also produced a general theory of state collapse. A "theological rationalist", he transformed the study of history into a "new science". In his eyes, dynasties repeatedly become "sedentary, senile, coercive, pompous, subservient to desire ... liable to divisions in the dynasty." Group feeling (asabiyyah, groupthink) disappears as the dynasty grows senile. Ibn Khaldun was fatalistic; "This senility is a chronic disease which cannot be cured because it is something natural". He observed that dynasties last for three generations before a new invading clique, "restless, alert and courageous", will cause the old to collapse in accordance with the principle in the Book of Exodus, chapter 20, verse four: God "visits the sins of the fathers onto their children, even unto the third and fourth generation of those that hate Him". Professor Geoff Mulgan discusses Ibn Khaldun in detail and agrees on the timescale: "There are obvious parallels between the lifespans of individuals and those of ruling groups."

J.J. Saunders, claiming in 1966 that "our age, like his, is one of misery", regrets that Ibn Khaldun had "no predecessors and no successors ... not until four centuries after his death did he rise from his long sleep." In 1868 French Arabists translated the Muqaddimah; "the world was amazed, but he remained a lonely pioneer without followers ... the world has yet to prove that history can exist independently of the theological setting that gives it meaning".

The Japanese philosopher Hajime Tanabe points to the quasi-religious role of the state to mediate between mortal individuals and the eternal universe, so that states regularly collapse; like religious figures, they must undergo a process of death and resurrection. In his view this may account for the perennial popularity of states because they regularly demonstrate their ability to transcend death.

According to psychologist Erich Fromm it is possible for an entire nation, if they all share the same vices and errors, to become insane—a "folie a millions". Inhuman treatment by the rulers inevitably leads to collapse:
Despots and ruling cliques can succeed in dominating and exploiting their fellow man ... but their subjects react ... with apathy, impairment of intelligence, initiative and skills ... or they react by the accumulation of such hate and destructiveness as to bring about an end to themselves, their rulers and their system. ... if man lives under conditions contrary to his nature and to human growth and sanity, he cannot help reacting.
Mark Blyth alleges that a democracy can also collapse "if voters don't get what they want and merely affirm the status quo." In these circumstances, voters deprived of real choice may opt for the least democratic option.

Marina Ottaway discusses the collapse of the Austro-Hungarian Empire and Ottoman Empire in 1918, British India in 1947, the collapse of the Soviet Union in 1991, the collapse of South Africa's white supremacist government in 1993, of Czechoslovakia the following year, and of YugoslaviaHarold Perkin sees "an acceleration of the process of collapse ... the [20th century] saw the collapse of seven great empires: Imperial China, Germany, Austria-Hungary, Ottoman Turkey, the Japanese empire, the British Empire, and Russia, twice". Furthermore, the 20th Century saw the collapse of the French and Portuguese Empires.

John Kenneth Galbraith regrets the "very slight" amount of research on political power in such cases. Power regularly passes to those who "assert the unknown with the greatest conviction... not necessarily related to intelligence." What we call "power" is, "in practice, the illusion of power." Discussing how the "powerless" Mahatma Gandhi brought about the collapse of militarily "powerful" British India, Galbraith reflects that power, mostly seen as a possession of states and their leaders, would be better viewed as a flow, into and away from "those instruments that enforce it".

Few political scientists credibly predicted the collapse of the Soviet Union or agreed on its causes. No one predicted the Arab spring. Though many writings study particular cases of state collapse in isolation, there appears to be no contemporary text which compares events on a global historical basis and identifies common features.

Martin Wight, like Saunders, deplored the "demonic concentrations of power" of the defeated countries in the two world wars. A devout Christian, he saw their "triumphant self-destruction" as "Antichrist moments". He disliked the modern secular tendency to view politics as a succession of questions (the Eastern question, the two-state solution) with "solutions" which are devoid of moral content, because:
The members of international society are, on the whole, immortals. States do die or disappear occasionally, but mostly they outlive the span of human life. They are partnerships of the living with posterity ... A society of immortals will be looser than one of mortals ... there are moral difficulties about indicting a whole nation, because (to do so) would make the passive majority suffer for the acts of the criminal minority, and future generations for the sins of the fathers.
Regarding the idea of a state being immortal, the nation called Russia has survived the collapse of two different political systems: Imperial Russia, a monarchy, in 1917; and the Soviet Union, a communist totalitarianism, in 1991. Likewise, though Germany, ruled by the Nazi Party, was defeated in 1945 and the nation, Germany, was dismembered, it was resurrected in 1990.

Examples

Examples of state collapse through civil war include: the War of the Roses in 15th-century England; the Thirty years war (1618–48); the Irish Civil War (1916-22); the Chinese Communist Revolution (1949); and the Cuban Revolution (1958). State collapses through revolutions, not featuring civil war, took place in Imperial China (1911), in Russia (1917), and in Iran (1979). Collapse through Coups d'etat occurred in Egypt (1952), in Iraq (1958), and in Libya (1969). Negotiated surrenders of power took place in the English Commonwealth (1660); and in the collapse of the Soviet Union (1991), when it fragmented into fifteen independent states.

Mediaeval England was the scene of several violent dynastic collapses: the fall of the West Saxon kings, when William the Conqueror defeated Harold Godwinson in 1066; the civil war known as The Anarchy from 1139-1153 between Stephen and Empress Matilda, a time when 'Christ and his saints were asleep', which ended the Norman line of kings; the reign of the last Angevin, John, King of England, known as 'Lackland' for his military incompetence in losing Anjou; the tyranny of the last Plantagenet monarch, Richard II, who was defeated by Henry, duke of Lancaster, later Henry IV; the destruction of the Lancastrian dynasty during the Wars of the Roses, and especially at the battle of Tewkesbury in 1471; and the battle of Bosworth, which saw the end of Richard III and the Yorkist line.
 
The Taiping Rebellion (1850-1864) was a civil war in China between the established Manchu-led Qing dynasty and the Christian millenarian movement of the Heavenly Kingdom of Peace. It was the second-worst conflict in history; 20-30 millions died over 15 years. In 1858-60 the Qing dynasty effectively collapsed as France and the UK invaded and imposed unequal treaties. In 1864 the Taiping regime also collapsed and the dynasty was reshaped in the Tongzhi Restoration.

The partition of India in 1947 led to the creation of two independent nations, India and Pakistan. The partition displaced between 10 and 12 million Sikhs, Hindus and Moslems, creating overwhelming refugee crises; there was large-scale violence, with estimates of loss of life accompanying or preceding the partition disputed and varying between several hundred thousand and two million.

Failed attempts at reform in the Soviet Union, a standstill economy, and defeat in the war in Afghanistan led to a general feeling of discontent, especially in the Baltic republics and Eastern Europe. Greater political and social freedoms, instituted by the last Soviet leader, Mikhail Gorbachev's policies of Glasnost and Perestroika encouraged open criticism of the communist regime. The dramatic drop of the price of oil in 1985 and 1986 profoundly influenced actions of the Soviet leadership. The Reagan administration in the 1980s placed Pershing II missiles in western Europe in order to escalate the Cold War, overstretch the USSR economy and bring about its downfall because 'they can't sustain military spending the way we can'. The Soviet Union finally collapsed in 1991 when Boris Yeltsin seized power in the aftermath of a failed coup that had attempted to topple Gorbachev. Soviet nuclear weapons were all reassigned to Russia.

The Socialist Federal Republic of Yugoslavia collapsed in the 1990s, when its six socialist republics broke apart to become separate countries; though Slovenia seceded peacefully, civil wars broke out in Croatia, Bosnia and Kosovo, then part of Serbia. Ethnic cleansing and genocide erupted, including the Srebrenica massacre and Bosnian genocide.

The apartheid system in South Africa ended through negotiations between the governing National Party, the African National Congress, and other political organizations, resulting in South Africa's first non-racial election, which was won by the African National Congress. Concerns were raised about the future of its nuclear weapons but they were dismantled.

Potential for instability

In a totalitarian state or an ideocracy, individuals may develop a closed mind and an authoritarian personality, making them more likely to resist threats to the incumbent regime. Psychologists speak of a "Masada complex" that may drive fanatics to a suicidal, violent last-ditch stand. Former British Prime Minister Margaret Thatcher has commented that "History teaches that dangers are never greater than when empires break up."

The new regime gains power, not through the truth of its doctrines and promises, but through its ability to organize and absorb the frustrated masses. As Pope Francis warned in 2017, "in times of crisis, we lack judgement". The timidity of the old regime contrasts with the boldness of those in rebellion against it; "Where power is not joined with faith in the future, it is used mainly to ward off the new and preserve the status quo. On the other hand, extravagant hope, even when not backed by actual power, is likely to generate reckless daring." "The frustrated see in a general downfall an approach to the brotherhood of all. Chaos, like the grave, is a haven of equality."

According to political scientists, in an ideocracy there must be a ruthless charismatic leader: "the leader is the movement", and all individuals are required to submit to, and worship him. "Followers who lead barren, insecure, frustrated lives obey the leader, not through faith in his vision of a 'Promised land', but because he leads them away from their unwanted selves". When collapse threatens he may insist on a "fight to the finish".

Hitler, according to Walter Langer had a Messiah complex and saw himself as the "Saviour of Germany" who performed "miracles" with the economy. He was unnaturally fond of his mother, to the extent that Germany became a "mother symbol". His drive to destroy (the Jews, communism, Europe) was an unconscious attempt to resolve his Oedipus complex and the injustices of his childhood. He "dismantled the German state ... and replaced it with a war machine". He was swept along by a tide of events.

Mussolini, according to Denis Mack Smith, "was an actor, playing the part that Italians wanted him to be". He was vindictive, sadistic, impulsive, proud and cruel, full of "demonic wilfulness" and did not know right from wrong. When in 1944 he led a puppet state in northern Italy, he "divided Italy in two and initiated 18 months of terrible civil war." Ken Livingstone has compared Slobodan Milosevic to Hitler for his racism and expansionist goals. Saddam Hussein, who also suffered from a Messiah complex, was similar: "Hitler was not one of a kind. As long as millions of people passionately long for his return, it is only a matter of time until their wish is fulfilled."

Nicolae Ceaușescu "went mad" as early as 1971 according to John Sweeney, when, "blind to his own Messianism", he attempted to recreate North Korean totalitarianism in Romania. He "played the king" and the role of "chosen one" and "saviour". Czar Nicholas II by contrast was deferential. Acceding at an early age, 26, he was untrained in governance. Grand Duke Vladimir's son Cyril was a rival candidate for the throne. Liberals and revolutionaries challenged his autocracy. By 1916 he had become apathetic, dominated by the Czarina and Rasputin, a "Christ in the image of the rejected and agonizing monarchy".

In the case of the USSR, a Marxist Revolutionary wave had formed in which several subordinate regimes in Eastern Europe and Africa collapsed almost simultaneously with the central power. Mikhail Gorbachev saw the USSR as "on the way to civil war" and tried to conciliate both reformers and hardliners. He and F.W. De Klerk in South Africa focused on acknowledging and managing decline, rather than "heroically" attempting to deny it. They have enjoyed better reputations, although in China, Gorbachev is seen as a dismal failure who capitulated to the West.

Sequence of events

Buildup to collapse

State collapse is often a gradual process of slow, imperceptible, generational change. Only the courageous are prepared for speaking truth to power; the majority 'go with the flow', as with Jewish passivity in the face of the creeping corruption of Nazi Germany.

Collapse is often preceded externally by war, and internally by overpopulation and repression. As Paul Kennedy points out, 'Nations in decline instinctively spend more on "security" and thus compound their long-term dilemma.' In the case of a revolution the crisis is reached when 'the old regime is no longer able to mobilise force'.

Regeneration

Either the incumbent regime itself, or an extremist reactionary group dissatisfied with its performance, may attempt to postpone or avoid collapse by regenerating popular support; 'At the end of a dynasty there often appears some show of power giving the impression that the dynasty's senility has been made to disappear. It lights up brilliantly just before it is extinguished, like a candle which leaps up brilliantly just before it is put out.'

To do so they may have to take 'heroic' measures; 'Throughout history there have always been in the event of defeat two paths of action; the one aims at saving enough of the substance as possible. the other at leaving behind a stirring legend.' According to Piekalkiewicz and Penn, they may rethink or adapt the ideology, or replace it by a completely new set of ideals. For example, in Poland, according to Piekalkiewicz and Penn, communist ideocracy failed in 1980; the recognition of Lech Walesa's Solidarity Trade Union led to a military coup and authoritarian military rule.

According to Sabrina Ramet, regenerative changes occurred in Yugoslavia in the 1980s when the communist ideology was replaced by a nationalist drive for a Greater Serbia and by an anti-bureaucratic revolution in support of Slobodan Milosevic  The Young Turk coup of 1908, the 1991 Soviet coup d'etat attempt, and the financial/industrial reforms of Sergei Witte in Imperial Russia, were all aimed at regenerating causes which were nearing collapse.

Crisis point

When collapse - whether through civil war, revolution, coup d'état, or military defeat and/or invasion - becomes unavoidable and immediate, law and order may break down. There may be Ethnic cleansing or Genocide. Hitler ordered the killing of invalids, Gypsies, Russians and Jews in the Final solution. In Ottoman Turkey, estimates for the death toll in the Armenian genocide vary between 300,000 and 1.5 million.

In the Pacific theatre of World War II, Japan's collapse was hastened by nuclear destruction of Hiroshima and Nagasaki.

When Ottoman Turkey collapsed at the end of World War I, it lost territory, including what became Syria, Iraq and Palestine; the collapse of the Austro-Hungarian empire gave rise to Czechoslovakia, Hungary and the Austrian Republic, while Slovenia and Croatia became part of Yugoslavia]]. Nazi Germany in 1945 fragmented into East and West Germany, while Pomerania and Silesia became part of Poland

Post-collapse

In 1946, the Diet ratified a new Constitution of Japan The new constitution drafted by Americans allowed access and control over the Japanese military through MacArthur and the Allied occupation on Japan. "The political project drew much of its inspiration from the U.S. Bill of Rights, New Deal social legislation, the liberal constitutions of several European states and even the Soviet Union."

Recovery from collapse is often improved by formal or informal efforts at justice, such as the Nuremberg trials and the Truth and Reconciliation Commission (South Africa). Slobodan Milosevic and Saddam Hussein were also tried in court, but Mussolini and Colonel Gaddafi were murdered by mobs.

The collapse of the Ottomans in 1918 had long-term consequences, 'triggering most of the problems that plague the Middle East today.'  Hegemony in the Middle East has been subject to quarrels between British, French, Zionist, American, Arab nationalist, Saudi and Iranian interests  ever since.

Hitler, says Sebastian Haffner, 'whether we like it or not', created many features of the postwar world, including the state of Israel, the end of European empires, the division of Germany, and the joint hegemony of the US and USSR.

States allegedly at risk of collapse

Paul Stares and Helia Aghani suggest that Saudi Arabia could lapse into a succession crisis and civil war if Mohammed bin Salman's accession is contested after the death of his aging father, king Salman. Lebanon and Jordan could collapse following the influx of refugees from Syria and the resultant burden on infrastructure.

In 2003, Colonel Gaddafi of Libya agreed to dismantle his nuclear and chemical weapons programme. In 2011 he was deposed and murdered. This is the reason, according to Forbes magazine, for North Korea to seek to guarantee its security and invulnerability through continuing its nuclear weapons programme. Tom Embury-Dennis claims that North Korea could collapse "within a year" as new US sanctions take effect. In Venezuela, protests and riots against the authoritarian rule of Nicolas Maduro have steadily increased since 2014, while the economy and social infrastructure have worsened.

Emmanuel Todd, one of the first to predict the fall of the USSR, now predicts the collapse of the US in his book After the Empire: The Breakdown of the American Order. According to Iranian general Reza Naqdi, the US will collapse by 2035 and the Trump presidency is hastening that process. Margaret McMillan has compared President Trump to Mussolini, on the grounds that President Trump similarly seeks attention, makes grand gestures, plays the 'strong man' and seeks out enemies.

Nigel Lawson predicts that the European Union will become a federal superstate; also likely to collapse, according to the Polish president, Andrzej Duda, journalist Stephen Pollard, German economist Thorsten Polleit, and a leaked German Government contingency plan.

S Daniel Abraham anticipates the collapse of Israel, where Palestinians will soon outnumber Jews, if the Palestinian problem is not resolved; Iqbal Jassat compares the situation to apartheid in South Africa. A secret CIA report sees the end of Israel by 2022. In Pakistan, Islamic militants are allegedly infiltrating the military and nuclear weapons systems. There are fears of collapse into nuclear war with India, or of chaos enabling extremists to seize weapons of mass destruction.

Gordon G. Chang, in editions of The Coming Collapse of China, has made several predictions of collapse, none of which have materialised. Bruce Gilley sees a largely peaceful process unfolding. David Shambaugh says China must either liberalise to become a developed economy–as Taiwan and South Korea have–or else remain authoritarian and endure a stagnating economy. "We cannot predict when Chinese communism will collapse, but it is hard not to conclude that we are seeing its final phases."

Mark Katz suggests that the Islamic fundamentalist revolutionary wave led by Iran could collapse, but "must first expand significantly" and then experience a "crisis of confidence".

Geoff Mulgan has called for; "new structures of government above the nation-state... this task is essential for Human survival".

In popular culture

There are many semi-fictional books and films, which dramatically demonstrate the turbulent effects of collapse upon innocent or naive individuals. Bernardo Bertolucci's film, The Last Emperor, showed the collapse of both Imperial China and Manchukuo, as well as the post-collapse trial and rehabilitation of Pu Yi. Bruno Ganz played Hitler in Downfall, which depicts the final days of Germany's Third Reich. Events from the period, as seen by prisoners at Auschwitz, are shown in Primo Levi's memoir, If This Is a Man, and in the graphic novels Maus and Maus II. Kurt Vonnegut witnessed the bombing of Dresden and fictionalized the experience in Slaughterhouse-Five.

Robert K. Massie's book about the last Russian tsar, Nicholas and Alexandra, was also filmed. Doctor Zhivago and And Quiet Flows the Don (filmed as War and Revolution) relate stories of families caught up in the collapse of Russia; and The House of the Mosque and Persepolis, in the collapse of Iran.

The Left Behind series of novels by Tim LaHaye and Jerry B. Jenkins features the supposed role of Israel in the apocalyptic End Times. In the spy novel, The Mask of Dimitrios (1939), Eric Ambler comments: "In a dying civilization, political prestige goes not to the man with the shrewdest diagnosis, but to the one with the best bedside manner."

International law

Illustrated title page "Hugo the Great of the Truth of the Christian Worship." Along with the earlier works of Francisco de Vitoria and Alberico Gentili, Hugo Grotius laid the foundations for international law, based on natural law.
 
The First Geneva Convention (1864) is one of the earliest formulations of international law

International law is the set of rules generally regarded and accepted in relations between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens. National law may become international law when treaties permit national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform to respective parts.

International law is consent-based governance. This means that a state member may choose to not abide by international law, and even to break its treaty. This is an issue of state sovereignty. International laws are consent-based. Violations of customary international law and peremptory norms (jus cogens) can lead to wars.

History

Sir Alberico Gentili is regarded as the Father of international law.

The current order of international law, the equality of sovereignty between nations, was formed through the conclusion of the "Peace of Westphalia" in 1648. Prior to 1648, on the basis of the purpose of war or the legitimacy of war, it sought to distinguish whether the war was a "just war" or not. This theory of power interruptions can also be found in the writings of the Roman Cicero and the writings of St. Augustine. According to the theory of armistice, the nation that caused unwarranted war could not enjoy the right to obtain or conquer trophies that were legitimate at the time.
 
The 17th, 18th and 19th centuries saw the growth of the concept of the sovereign "nation-state", which consisted of a nation controlled by a centralised system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the mid-19th century, relations between nation-states were dictated by treaty, agreements to behave in a certain way towards another state, unenforceable except by force, and not binding except as matters of honor and faithfulness. But treaties alone became increasingly toothless and wars became increasingly destructive, most markedly towards civilians, and civilised peoples decried their horrors, leading to calls for regulation of the acts of states, especially in times of war.

The modern study of international law starts in the early 19th century, but its origins go back at least to the 16th century, and Alberico Gentili, Francisco de Vitoria and Hugo Grotius, the "fathers of international law." Several legal systems developed in Europe, including the codified systems of continental European states and English common law, based on decisions by judges and not by written codes. Other areas developed differing legal systems, with the Chinese legal tradition dating back more than four thousand years, although at the end of the 19th century, there was still no written code for civil proceedings.

One of the first instruments of modern international law was the Lieber Code, passed in 1863 by the Congress of the United States, to govern the conduct of US forces during the United States Civil War and considered to be the first written recitation of the rules and articles of war, adhered to by all civilised nations, the precursor of international law. This led to the first prosecution for war crimes—in the case of United States prisoners of war held in cruel and depraved conditions at Andersonville, Georgia, in which the Confederate commandant of that camp was tried and hanged, the only Confederate soldier to be punished by death in the aftermath of the entire Civil War.

In the years that followed, other states subscribed to limitations of their conduct, and numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties, including, but not limited to, the Permanent Court of Arbitration in 1899; the Hague and Geneva Conventions, the first of which was passed in 1864; the International Court of Justice in 1921; the Genocide Convention; and the International Criminal Court, in the late 1990s. Because international law is a relatively new area of law its development and propriety in applicable areas are often subject to dispute.

International relations

Under article 38 of the Statute of the International Court of Justice, international law has three principal sources: international treaties, custom, and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law". International treaty law comprises obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior.

Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC), under the aegis of the United Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations:
  • Colombia v Perú [1950] ICJ 6, recognising custom as a source of international law, but a practice of giving asylum was not part of it;
  • Belgium v Spain [1970] ICJ 1, only the state where a corporation is incorporated (not where its major shareholders reside) has standing to bring an action for damages for economic loss.
International law is sourced from decision makers and researchers looking to verify the substantive legal rule governing a legal dispute or academic discourse. The sources of international law applied by the community of nations to find the content of international law are listed under Article 38.1 of the Statute of the International Court of Justice: Treaties, customs, and general principles are stated as the three primary sources; and judicial decisions and scholarly writings are expressly designated as the subsidiary sources of international law. Many scholars agree that the fact that the sources are arranged sequentially in the Article 38 of the ICJ Statute suggests an implicit hierarchy of sources. However, there is no concrete evidence, in the decisions of the international courts and tribunals, to support such strict hierarchy, at least when it is about choosing international customs and treaties. In addition, unlike the Article 21 of the Rome Statute of the International Criminal Court, which clearly defines hierarchy of applicable law (or sources of international law), the language of the Article 38 do not explicitly support hierarchy of sources.

The sources have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, which was succeeded by the United Nations Charter and is preserved in the United Nations Article 7 of the 1946 Statute of the International Court of Justice.

Treaties

Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law interpretation is within the domain of the protagonists, but may also be conferred on judicial bodies such as the International Court of Justice, by the terms of the treaties or by consent of the parties. It is generally the responsibility of states to interpret the law for themselves, but the processes of diplomacy and availability of supra-national judicial organs operate routinely to provide assistance to that end. Insofar as treaties are concerned, the Vienna Convention on the Law of Treaties writes on the topic of interpretation that:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (article 31(1))
This is actually a compromise between three different theories of interpretation:
  • The textual approach, a restrictive interpretation, which bases itself on the "ordinary meaning" of the text; that approach assigns considerable weight to the actual text;
  • The subjective approach, which takes into consideration i. the idea behind the treaty, ii. treaties "in their context", and iii. what the writers intended when they wrote the text;
  • A third approach, which bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation that best suits the goal of the treaty, also called "effective interpretation".
These are general rules of interpretation; specific rules might exist in specific areas of international law:

Statehood and responsibility

International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. International law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems, and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade.
In theory all states are sovereign and equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations".

Traditionally, sovereign states and the Holy See were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g., North American Free Trade Agreement (NAFTA) Chapter 11 actions) have been inclusive of corporations, and even of certain individuals.

The conflict between international law and national sovereignty is subject to vigorous debate and dispute in academia, diplomacy, and politics. Certainly, there is a growing trend toward judging a state's domestic actions in the light of international law and standards. Numerous people now view the nation-state as the primary unit of international affairs, and believe that only states may choose to voluntarily enter into commitments under international law, and that they have the right to follow their own counsel when it comes to interpretation of their commitments. Certain scholars and political leaders feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the U.N. and the World Bank, argue that international law has evolved to a point where it exists separately from the mere consent of states, and discern a legislative and judicial process to international law that parallels such processes within domestic law. This especially occurs when states violate or deviate from the expected standards of conduct adhered to by all civilized nations.

A number of states place emphasis on the principle of territorial sovereignty, thus seeing states as having free rein over their internal affairs. Other states oppose this view. One group of opponents of this point of view, including many European nations, maintain that all civilized nations have certain norms of conduct expected of them, including the prohibition of genocide, slavery and the slave trade, wars of aggression, torture, and piracy, and that violation of these universal norms represents a crime, not only against the individual victims, but against humanity as a whole. States and individuals who subscribe to this view opine that, in the case of the individual responsible for violation of international law, he "is become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind",[12] and thus subject to prosecution in a fair trial before any fundamentally just tribunal, through the exercise of universal jurisdiction.

Though the European democracies tend to support broad, universalistic interpretations of international law, many other democracies have differing views on international law. Several democracies, including India, Israel and the United States, take a flexible, eclectic approach, recognizing aspects of international law such as territorial rights as universal, regarding other aspects as arising from treaty or custom, and viewing certain aspects as not being subjects of international law at all. Democracies in the developing world, due to their past colonial histories, often insist on non-interference in their internal affairs, particularly regarding human rights standards or their peculiar institutions, but often strongly support international law at the bilateral and multilateral levels, such as in the United Nations, and especially regarding the use of force, disarmament obligations, and the terms of the UN Charter:

Territory and the sea

International organisations

Social and economic policy

Human rights

Labour law

Development and finance

Environmental law

Trade

Conflict and force

War and armed conflict

Humanitarian law

International criminal law

Courts and enforcement

It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.
Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council.

Since international law exists in a legal environment without an overarching "sovereign" (i.e., an external power able and willing to compel compliance with international norms), "enforcement" of international law is very different from in the domestic context. In many cases, enforcement takes on Coasian characteristics, where the norm is self-enforcing. In other cases, defection from the norm can pose a real risk, particularly if the international environment is changing. When this happens, and if enough states (or enough powerful states) continually ignore a particular aspect of international law, the norm may actually change according to concepts of customary international law. For example, prior to World War I, unrestricted submarine warfare was considered a violation of international law and ostensibly the casus belli for the United States' declaration of war against Germany. By World War II, however, the practice was so widespread that during the Nuremberg trials, the charges against German Admiral Karl Dönitz for ordering unrestricted submarine warfare were dropped, notwithstanding that the activity constituted a clear violation of the Second London Naval Treaty of 1936.

Domestic enforcement

Apart from a state's natural inclination to uphold certain norms, the force of international law comes from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it may be through diplomacy and the consequences upon an offending state's reputation, submission to international judicial determination, arbitration, sanctions, or force including war. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law.

It is implicit in the Westphalian system of nation-states, and explicitly recognized under Article 51 of the Charter of the United Nations, that all states have the inherent right to individual and collective self-defense if an armed attack occurs against them. Article 51 of the UN Charter guarantees the right of states to defend themselves until (and unless) the Security Council takes measures to keep the peace.

International bodies

As a "deliberative, policymaking and representative organ", the United Nations General Assembly "is empowered to make recommendations"; it can neighter codify international law nor make binding resolutions. Merely internal resolutions, such as budgetary matters, may be binding on the operation of the General Assembly itself. Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate.

General Assembly resolutions are generally non-binding towards member states, but through its adoption of the "Uniting for Peace" resolution (A/RES/377 A), of 3 November 1950, the Assembly declared that it had the power to authorize the use of force, under the terms of the UN Charter, in cases of breaches of the peace or acts of aggression, provided that the Security Council, owing to the negative vote of a permanent member, fails to act to address the situation. The Assembly also declared, by its adoption of resolution 377 A, that it could call for other collective measures—such as economic and diplomatic sanctions—in situations constituting the milder "threat to the Peace".

The Uniting for Peace resolution was initiated by the United States in 1950, shortly after the outbreak of the Korean War, as a means of circumventing possible future Soviet vetoes in the Security Council. The legal role of the resolution is clear, given that the General Assembly can neighter issue binding resolutions nor codify law. It was never argued by the "Joint Seven-Powers" that put forward the draft resolution, during the corresponding discussions, that it in any way afforded the Assembly new powers. Instead, they argued that the resolution simply declared what the Assembly's powers already were, according to the UN Charter, in the case of a dead-locked Security Council. The Soviet Union was the only permanent member of the Security Council to vote against the Charter interpretations that were made recommendation by the Assembly's adoption of resolution 377 A.
Alleged violations of the Charter can also be raised by states in the Security Council. The Security Council could subsequently pass resolutions under Chapter VI of the UN Charter to recommend the "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the Council's convictions. In rare cases, the Security Council can adopt resolutions under Chapter VII of the UN Charter, related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations.

It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice (ICJ) in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent.

States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice, located in The Hague, Netherlands. The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the court's competence and jurisdiction.

Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created from the Permanent Court of International Justice in 1945) can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist international lawyers. As of June 2009, there are 15 cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states.

Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee. Investment treaties commonly and routinely provide for enforcement by individuals or investing entities. and commercial agreements of foreigners with sovereign governments may be enforced on the international plane.

International courts

There are numerous international bodies created by treaties adjudicating on legal issues where they may have jurisdiction. The only one claiming universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice, and the International Criminal Court (when national systems have totally failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport.

East Africa Community

There were ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its own form of binding supranational law, but this effort has not materialized.

Union of South American Nations

The Union of South American Nations serves the South American continent. It intends to establish a framework akin to the European Union by the end of 2019. It is envisaged to have its own passport and currency, and limit barriers to trade.

Andean Community of Nations

The Andean Community of Nations is the first attempt to integrate the countries of the Andes Mountains in South America. It started with the Cartagena Agreement of 26 May 1969, and consists of four countries: Bolivia, Colombia, Ecuador and Peru. The Andean Community follows supranational laws, called Agreements, which are mandatory for these countries.

International legal theory

International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercitive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international law norms, that limit their freedom of action, in the absence of a world legislature; while other perspectives are policy oriented: they elaborate theoretical frameworks and instruments to criticize the existing norms and to make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, some are interdisciplinary, and others have been developed expressly to analyse international law. Classical approaches to International legal theory are the Natural law, the Eclectic and the Legal positivism schools of thought.

The natural law approach argues that international norms should be based on axiomatic truths. 16th-century natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American peoples.

In 1625 Hugo Grotius argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice while the relations among polities ought to be governed by the law of peoples, the jus gentium, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda, that is, on the basis of the observance of commitments.

On his part, Emmerich de Vattel argued instead for the equality of states as articulated by 18th-century natural law and suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the 1648 Peace of Westphalia.

The early positivist school emphasized the importance of custom and treaties as sources of international law. 16th-century Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in international law. The positivism school narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The 1815 Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe.

Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective" reality that needs to be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal validity and it deems irrelevant all extralegal arguments.

Terminology

The term "international law" is sometimes divided into "public" and "private" international law, particularly by civil law scholars, who seek to follow a Roman tradition. Roman lawyers would have further distinguished jus gentium, the law of nations, and jus inter gentes – agreements between nations. On this view, "public" international law is said to cover relations between nation-states, and includes fields such as treaty law, law of sea, international criminal law, the laws of war or international humanitarian law, international human rights law, and refugee law. By contrast "private" international law, which is more commonly termed "conflict of laws", concerns whether courts within countries claim jurisdiction over cases with a foreign element, and which country's law applies. A further concept, more recently developing, is of "supranational law", on the law of supranational organizations. This concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective. Systems of "supranational law" arise when nations explicitly cede their right to make certain judicial decisions to a common tribunal. The decisions of the common tribunal are directly effective in each party nation, and have priority over decisions taken by national courts. The European Union is an example of an international treaty organization which implements a supranational legal framework, with the European Court of Justice having supremacy over all member-nation courts in matter of European Union law. A further frequently used term is "transnational law", which refers to a body of rules that transcend the nation state.

Criticisms

Nation-states observe the principle of par in parem non habet imperium, 'Between equals there is no sovereign power'. John Austin therefore asserted that 'so-called' international law, lacking a sovereign power and so unenforceable, was not really law at all, but 'positive morality', consisting of 'opinions and sentiments...more ethical than legal in nature.'

Article 2 (1) of the UN Charter confirms this Sovereignty of Nations; no state is in subjection to any other state.

Also, since the bulk of international law is treaty law, binding only on signatories:
If legislation is the making of laws by a person or assembly binding on the whole community, there is no such thing as international law. For treaties bind only those who sign them.
Since states are few in number, diverse and atypical in character, unindictable, lacking a centralised sovereign power, and their agreements unpoliced and decentralised, then, says Wight, 'international society is not a society at all. The condition of international relations is best described as international anarchy:
While in domestic politics the struggle for power is governed and circumscribed by law, in international politics, law is governed and circumscribed by the struggle for power. (This is why) international politics is called power politics... War is the only means by which states can in the last resort defend vital interests...the causes of war are inherent in power politics.
On the subject of treaty law, Charles de Gaulle said this; 'Treaties are like pretty girls, or roses; they last only as long as they last.'

For Hans Morgenthau, international law is the weakest and most primitive system of law enforcement. Its decentralised nature makes it similar to the law that prevails in preliterate tribal societies. A Monopoly on violence is what makes domestic law enforceable; but between nations, there are multiple competing sources of force. The confusion created by treaty laws, which resemble private contracts between persons, is mitigated only by the relatively small number of states. On the vital subject of war, it is unclear whether the Nuremberg trials created new law, or applied the existing law of the Kellogg-Briand pact.

Morgenthau asserts that no state may be compelled to submit a dispute to an international tribunal, making laws unenforceable and voluntary. International law is also unpoliced, lacking agencies for enforcement. He cites a 1947 US opinion poll in which 75% of respondents wanted 'an international police to maintain world peace'; but only 13% wanted that force to exceed the US armed forces. Later surveys have produced similar contradictory results.

Mandatory Palestine

From Wikipedia, the free encyclopedia https://en.wikipedia.org/wiki/Mandatory_Palestine   Palestine 1920–...