Archive for June, 2016

Useful treaties and conventions to use for World Order essays

June 15, 2016 Leave a comment

treatyThis blog post is written with a HSC Legal Studies audience in mind, and more specifically those who do ‘World Order’ as an option in Legal Studies in NSW.

There are many treaties and conventions that you can choose from in a world order essays.  However, there are certain treaties and conventions are particularly useful, because of their explicit links with many useful talking points.  I would recommend that you familiarise with them.

  1. Genocide Convention 1951 (The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG))
    • Adopted by the UN General Assembly on 9 December 1948 as General Assembly Resolution 260. This demonstrates how international law and convention can work.  Genocide Convention was NOT a UNSC resolution.  it was a UNGA resolution, hence not directly binding.  Yet because it established a persuasive legal norm, it became a binding international law, even on those who did not sign.  (The very definition of jus cogens is that it is law whether you agree or not.  See Professor Shirley V Scott, International Law in World Politics, p.5)
    • It defined genocide, and that the prohibition of genocide reinforced as a jus cogen.
    • It prescribes this as a crime against international community that must be punishable by “a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal“.  (Article 6)  This is the basis of subsequent Ad Hoc tribunals as well as the ICC in 1998.
    • Under Article 8 of the convention, signatories may “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide“.  This provides the rationale for a possible chapter 7 intervention in the face of credible evidence of genocide.  In fact, it arguably imposes a responsibility to protect in the face of such evidence.
    • The convention also underlines the potentially persuasive roles of lobbying and NGOs in encouraging cooperation and compliance, or in particular the role of a one-man NGO in the person of Raphael Lembkin, a Polish-Jewish lawyer and professor of international law in Rutgers University NY, who kept campaigning for a formal convention against genocide throughout the inter-war years (1919-1939).  His persistence and refusal to give up meant that the world came face to face with the fateful atrocities of the Holocaust, Lembkin’s campaign finally found a receptive audience among world leaders.  Thus, the story of Genocide Convention illustrates that
      • It is sometimes hard to evaluate the impact of NGO lobbying.  Certainly, during the inter-war years, it appeared Lembkhin’s lobbying fell on deaf ears.  (See Dr Sarah Ellen Merry, NYU)
      • But long term persistence can sometimes pay off, especially when historical and political opportunities arise.  This is the story of Lemkhin.  
  2. Ottawa Treaty 1997 (also known as ‘Mine Ban Treaty‘, or the ‘Treaty on the Prohibition of Land Mines‘)
    • Signatory states agreed to stop using anti-personnel land mines within ten years.
    • This treaty is excellent for illustrating the issue of compliance, because 38 nations have not signed it, and these being some of the powerful military powers in the world (e.g. USA, Russia, China etc.)
    • Because of this, the treaty has been recognised as jus cogens.  It simply has not yet established the prohibition of land mines as legal norm in international law yet.  Needless to say, it also demonstrates how the interests of major sovereign powers can frustrates and limits the effectiveness of legal instrument.
    • The treaty is also great, again, for illustrating the powerful persuasive role of long-term campaigns and lobbying by NGOs in encouraging compliance, cooperation and promoting law reform in response to increasing global awareness of the humanitarian danger of anti-personnel land mines.  This included:
      • Mine Action Canada, which lobbied the Canadian government to lead the diplomatic effort
      • Celebrities like the late Diana, Princess of Wales
      • International Campaign to Ban Landmines
  3. Rome Statute 1998
    • The fact some major sovereign nations have not signed or ratified the Rome Statute obviously undermines the strength of the treaty.
    • Some of the non-signatories are P5 powers.  This is an even bigger problem:
      • ICC Prosecutor may initiate investigations and issue arrest warrants against individuals in member-states.
      • However, if the suspects are citizens of non-signatory nation-states (e.g. Sudan), then ICC could only initiate investigations and issue arrest warrants against such suspects if the UNSC refers such suspects to the ICC.
      • Obviously, this gives the P5 powers enormous influence, and it ensures that soldiers and officials from non signatory states like China, US and Russia would never face ICC justice.  This leads to accusations of unfairness, and that ICC is captive to the interests of powerful sovereign powers.
      • Refer to China being unwilling initially to refer President Omar Bashir to the ICC, due to its strong economic ties with Sudan.
      • Refer to China deciding to allow UNSC to refer Bashir to the ICC after heavy diplomatic pressures, as well as mounting unavoidable evidence of atrocities committed by Sudan against the people of Darfur.  
        • Make the point that in diplomacy, credibility is often seen as important asset.  This explained China’s changing stance.
    • Its lack of direct arrest mechanism means that it relies on the cooperation and compliance of member-states to assist.  This can lead to problems.
      •  Refer to the incident of Zuma and Bashir.  
  4. Nuclear Non-Proliferation Treaty 1968
    • The treaty establishes non-proliferation as a legal norm.
    • It establishes the IAEA (International Atomic Energy Agency) as a verification agency.  This clarity underlines its effectiveness.
    • It relies on the UNSC for enforcement.  This does give P5 enormous powers again.  However, keep in mind that P5 are legally allowed to possess nuclear weapons under NPT.  So, it was in their interests to support the NPT legal regime.
      • This demonstrates that treaty regimes can be quite effective if they are aligned with the political interests of powerful member states.
    • However, the enforcement abilities of NPT can be ineffective if
      • Violating states are willing to pay the diplomatic and economic costs of violations (e.g. sanctions against North Korea has not stopped North Korean nuclear weapons programs.
  5. Fourth Geneva Conventions 1949
    • This is an excellent treaty to demonstrate compliance.
    • This is with particular reference to the role of ICRC in demanding access to Prisoners of War as well as monitoring violations of international criminal law in conflict situations.
    • This is because ICRC is a neutral NGO.  This gives it credibility.
    • Refer to the Guantanomo Bay case.


Categories: world order