Towards Replacing Vacuums of International Law, Possible New Laws Governing the Global System

The new challenges to international security reveal themselves on today’s international scene, representing major elements of the new logic that establishes international order: they transform the security environment, redefine international relations and succeed to influence the way be perceive global peace, individual liberties and every day life.  

¼br /> World security can no longer be evaluated in a static sense and it can no longer be reduced to defending specific regions. Threats towards security can appear everywhere. The international community can be essentially threatened by risks coming from different parts of the world, from regions “out of area”, as they are called in security terms. International terrorist and organized crime networks are the direct beneficiaries of the permeabilitation process of state borders, with one tragic effect; they become able to strike and menace the international community from areas outside the legal state order or from places characterized by minimal governance.
We are more and more vulnerable, in a world in which the distance from some instability regions, can no longer be a guaranty of security and safety. Today’s security context implies a concentrate, united action of the international society towards the new threats to security. The international system needs order; it is dependent of an institutionalized architecture that could manage and control through efficient means the dynamic and rhythm of international life. We need an integrate and united doctrine that can generate the theoretical frame to project real and viable international structures and laws that will govern the international security environment in the post cold war era.

Studying numerous works from different specialization fields I will try to give a relevant answer to the question of the future of international law and the new laws of governing the international system, taking into account that we find ourselves in an era of reshaping and redefining international relations and structures.
 

Reconsidering the Un Charter
 

Global norms represent accepted standards of behavior that are generally assumed by the human community. When we speak about international relation’s rules, the norms regarding the conditions in which a nation can decide to go to war become serious issues that ask for a complex considerations and a serious and precise approach. The United Nations has been, ever since its foundation the main organization in setting international law and global norms.
In his paper, George Soros says that the United Nations is “far the most important security decision forum, but an extremely imperfect institution”, an institution that granted noble goals but is incapable to accomplish them. The Un Security council, actually the strongest UN component can promote law like decisions, but rarely his five permanent members that have the veto right come to an agreement. This incapacity is seen by Soros as being rooted in its very constitution, as the Cold War made it impossible for its members to cooperate. Even if widely beneficial, an Un ‘Security Council reform is very unlikely as none of its permanent members will ever renounce willingly their rights. For this reason, Soros calls the UN, “inefficient, complicated and expensive”. In his view, the USA’s negative attitude,” its biggest and strongest member”, condemns the UN to far bigger inefficiency.[1] Francis Fukuyama, another international relation specialist says that there is indeed a lack of sympathy that the US shows for this international forum, which makes it definitely more inefficient. The argues though that just because some of the US administration think negatively of the UN, it does not mean that the US despises international legitimacy. He says that the US mistrust is normal taking into account the very negative experiences in the 1990’s and considering that international legitimacy for Us actions was most of the time granted ex post and not ex ante, as in the case of Kosovo and Bosnia, for example.[2] After the experience of two disastrous world wars, that have shaken, shocked and changed international society, the UN Charter tried to deter states in the threat of force or use of force, in order to prevent war. Written in 1945, the Charter imposes an almost absolute force interdiction.
Even from its preamble the Charter states: “We the people of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and  to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and  to promote social progress and better standards of life in larger freedom. And for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples.”[3]  The purpose of the present Charter is very clear and understandable if we think to the then recent experience of the international community, the two world wars.
Art.2 (3) and (4) states that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. All Members shall 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.”[4] According to Michael N. Schmitt, the aspects of article 2(4) deserve to be discussed properly. Even if the obligation to abstain from threaten force or use force applies only to the members of the Charter, the acts of force extend to every state, even non-member states. At that time this had a great meaning as in 1945 there were only 51 member states. Today the member states number grew significantly, as it gathers the whole world.
The UN Charter has become today the base of international law, in its true sense. Schmitt says that the force interdiction refers only to the cases of war that threatens territorial integrity and the political system of a state, and therefore does not interdict surgical interventions towards for example nuclear capabilities. Schmitt argues that surgical attacks like the ones Iran and Israel implemented on Iraqi capabilities in 1980 and 1981  in Osirak, (clearly pre-emptive attacks), the Us attacks over Sudan and Afghanistan in 1998, attacks such as El Dorado Canyon in Libya in 1996 are permitted by the 2(4) article Of the UN Charter.  When discussing interdiction of force and pre-emptive use of force, there are to aspects that Schmitt considers important. He says surgical pre-emptive strikes are permitted, but interdicts the regime change made through pre-emptive war. The surgical strikes, he says are not set to conquer a territory, nor to affect the political process, and therefore, does not implicate interdiction for the use of force. [5] ¼br /> We can reply of course that today, in cases of terrorism and WMD, a surgical action does not apply as, even if Al-Qaeda was stroked in Sudan and Afghanistan in 1998, the Us was still attacked in 2001, and even if the Osirak reactors were destroyed in 1980 and 1981, Saddam’s regime reopened its military program. This is why Fukuyama considers that the only mean is regime change, through pre-emptive war, even if it contradicts the UN Charter.[6] The simple fact that a state failed in respecting article 2(4) that interdicts the use of force, that does nit mean that another state that felt threatened can respond by using force. The answer must comply to the two exceptions of the Charter, in which force is accepted, and through which a state is given the right to use force. First, it is about the Security Council authorization. In article 39 of the Un Charter “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” .
Once the determination is made, the Security Council can recommend to parties or can decide about the measures that must be implemented in maintaining peace and breach of the peace.[7]  Article 41, according to which, in case to the threat to peace the Security Council must ask its members to implement non-military actions as economic embargo.[8] states that ” The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” [9] In case these measures stated in article 41, do not prove themselves successful, article 42 permits to launch other measures that can imply forceful actions to maintain or restore international peace and security. “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”[10]  In other words the Security council can dispose authorization for the use of force.[11] ¼br /> Schmitt says it is imperious to comment this article when we discuss new international norms as there is no statement in these articles that an actual, direct threat to peace must be made nor that an actual act of aggression must be made. That means, in Schmitt’s assertion that the Security Council can authorize a if it wills a military pre-emptive action. “This fact becomes clear when it is outlined that it is included the maintenance of peace and security.” In his view, there is no dough that the mentioned above articles can legitimate a pre-emptive action. More, the author states that an action can be ordered as a reaction to any threat to peace and security, enumerating numerous acts that the Council considered threats to world security and peace.
Taking the example of Iraq, the author says that the simple disrespect shown by Saddam to UN resolutions can be interpreted as violations to peace and security. For example resolution 1441 that asks Iraq to respect the weapon inspection program states that “disrespecting its obligations and proliferating weapons of mass destruction are considered threats to peace and security”.
In lack of own means to use force, the UN, through its Security Council can delegate or empower other entities to use military force. Its mandate can be given to a coalition of states willing to take military actions, can delegate another international organization that has these means, as NATO in the case of Afghanistan, or can create its own mission, as was the UN Mission to Sierra Leone.[12] According to Schmitt, the Security Council has the power to sanction pre-emptive actions, having a great and unprecedented power; in determining actions that constitute threats to peace and security, as well as in deciding whom will it grant the mandate for taking military actions to maintain international peace and security.
To the general interdiction to use force, there is a second exception, self-defense. In article 51, it is stated “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-defense 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.”[13] According to Anthony Clark Arend there are to interpretations to this article, the restrictionist and counter-restrictionist. Restriconists interpret article 51 as explicitly limiting self defense to actions that occur after an actual armed attack had happened, accessing that any form of anticipative self defense must be eliminated, as being outside the boundaries of the cited article. On the other side the counter restrictionist argue that this article was never made to restrict preventive or pre-emptive self-defense, considering that this article defines armed attack as one of the cases in which a state can act in self defense, as armed attack is just given as an example to it.[14] The charter is sufficiently ambiguous regarding article 51, in Arend’s acceptation, and because the customary law that existed before the UN Charter permitted anticipative self–defense, the Charter does not interdict pre-emptive war, in an explicit way. Consequently, he finds no reason that should made us consider preventive or pre-emptive military actions illegal, so anticipative actions are according with international law, he says.[15] The threats of the new international security environment asks for reconsidering international law criteria, and it seems that inside this context the decisions of  the Security Council, approving start of hostilities, based on a Charter elaborated in 1945, are no longer valid or needed. The UN Charter becomes expired and irrelevant in an era of asymmetric warfare, terrorism, rogue and failed states and weapons of mass destruction.
 

New Political, Moral and Judiciary Norms in the Management of the International System (Pragmatic Militarism or Militant Constructivism?)
 

After the end of the Cold War, there are five threats identified to be a menace to the security of the international community: terrorism, WMD proliferation, regional conflicts, rogue and failed states and organized crime. It is important to understand that these threats to international peace and stability are interdependent and inter-relational. We can identify them in various proportions in different areas of international society. All this related elements can generate a societal frame that exposes the individual to severe insecurity conditions.
It is important to understand that this threats towards security, in an every day more interdependent and related international environment, transform themselves in global threats that ask for a concentrate, united action from the international society. In this context it is imperative to ask for international effort to constitute the global system, effort that must take us to the projection of a normative frame capable of imposing very strict praxis rules and laws. The constitution process must be understood as a regularization effort, an effort to norm praxis rules of the international system, combined with the transformation of the state in imputable entities in front of international society.
The state becomes seen as an actor having rights but also obligations , as an entity that integrated in a constitutional order that constrains it to act , function and produce policies imputable and in conformity with norms and regulations asserted by the international society.
The main problem comes from the fact that the procedures and mechanisms of the existent security system were projected to manage and regulate inter-state relations, as in the condition of a globalize world the main threats with destabilizing potential come from inside state borders. Threats toward security are less generated by strong states and more generated from failed and rogue states, and from sub-state actors.
In this context, one of the major imperatives is represented by the fact that international society develops graduate new norms and rules of practice, to be able to manage immediate threats to peace and security. This necessity brings to attention, a debate that dominated the last century, about legitimacy and the legality of warfare, maximizing its relevance. The debate was about the reformation of the frame and normative fundamentals of international law and the political international system. The debate over the new doctrine comes at its pick in 1990 after the end of the Cold War, in the light of the catastrophic humanitarian events that started in Europe.
The international community must support the gradual development of a normative consensus, that changes the state rights and obligations, depending on the new profile of international strategic environment, as it appears after 1990.[16] These new management rules of the global system are reducible to contesting the main constitutive principle, state sovereignty on the Westphalia coordinates. Classically international law protects state sovereignty, interdicting other states in interfering in internal affairs of other states, through military or non-military actions. But in the light of humanitarian crises of 1990, from hunger to genocide systematical politics and ethnical depuration, the doctrine of sovereign state on the Westphalia bases continues to erode.
In George Soros vision, “anachronism or not, sovereignty remains the base of today global order” and in this context the author identifies two challenges. The first refers to the question of how to intervene in the internal affairs of states, the second is, once the intervention is made, can it support global good”. Intervening in the internal affairs of a state, the author asks who has the right to intervene, and on which bases can somebody intervene.[17] The first problem has, in Soros assertion a very simple answer, it is the case of “constructive intervention”, action that does not hurt state sovereignty as states can accept or not foreign intervention. This mean can function as an efficient instrument to improve internal conditions   without the brake of state sovereignty principle. Constructive intervention can though be made only in the countries that are willing to receive it, and it remains the question of repressive countries that are not willing to get the international help.[18] The international community can no longer wait; reacting only after a crisis has generated massive human suffering or even has exported instability to neighboring countries, constituting a threat to international peace and security. Maintaining peace and security imposes countries to be capable to prevent and not only to act post-factum.[19] A very recent development that contributes immensely to this evolutional process, to coagulate a normative consensus that refers to the responsibility of international community, is represented by a report belonging to a commission of international experts, mandate by Kofi Annan, the UN Secretary General at that time. The report “the responsibility to protect reshapes notions of foreign intervention and state sovereignty, accentuating not “the right to intervene” but the “responsibility to protect”.  In the center of this new approach, we can find a fundamental movement in the very essence of sovereignty. Sovereignty is no longer reducible to the notion of control, but it must be also understood as responsibility. [20] The judicial norm in classical international system implies that a sovereign state has the right to exercise a total and exclusive jurisdiction over its territory, and that other states has to refrain themselves in interfering in its internal affairs. Gradually fundamental human rights began an erosion process of sovereign state immunity creating the premises of imputability “sovereignty is imputable at the national level as well on the international level.” In the new perspective, sovereignty imposes a double responsibility: an external responsibility to respect the sovereignty of other states, and an internal one, to respect fundamental human rights of state citizens. Briefly, it means that sovereignty implies rights but also obligations.
As a consequence, state institutions are responsible for the safety, security and life of it’s own citizens in front of its population, but also in front of the international community;  state institution are responsible for their actions, as their actions are imputable. Sovereignty seen as responsibility implies the necessity that every state actor to respect the dignity and fundamental rights of its citizens.
We assist to the formation of a new regulation: the responsibility to protect. An operational definition of this new international relations norm can be the following: sovereignty as responsibility implies that national government authorities are obliged to assure a minimum security and welfare standard to its citizens, standard that becomes imputable in front of the international community.  Sovereignty is seen in the new context as the responsibility to produce the expected effect of government. In other words, if UN member states have the responsibility to protect and assure the life, liberty and rights of humans inside the state borders, in the moment that one of these primarily state functions fails, or find itself in incapacity to do it, the international community has the right and responsibility to intervene.[21] There are two principal criterions to validate humanitarian international intervention. International consensus intervention in the light of massive life lost due to state action or non-state interference to stop this atrocity, or in the case in which the state is not that strong to have the power to intervene. The other is gathered in the moment of state collapse that can trigger mass hunger or civil war. [22] More, military action can represent an anticipative measure, as a response to possible beginning of ethnical purification policies. It is absurd for the international community to wait until genocide begins in order to be able to stop it, before he has the legitimacy to stop it. States must take action in advanced preventively, and not to react post-factum. This new assumptions seem to have gather a consensus at international level and begins to affect immediately the future policy-making, becoming a operational principle in projecting future policies that have to manage the international system.
This new philosophy of “pre-emptive and preventive actions”[23] regarding instability export from some international crises to a region or globe is becoming to be formalized and articulated in new western doctrines.  It is a logical development in the frame of the new security dynamic, an upgrade to the classical concept of self-defense. In this new light self-defense is to be implicated actively in crises management in regions “out of area”, before the “spill over process” affects the global security.
Ever since the end of the cold war, rogue and failed states became important problems of international order, this commit abuses to human rights, provoke humanitarian disasters, determine emigration flows and attack their neighbors. They are sometimes safe heavens for terrorist organizations or are that week, that that sub-states actors are able to kidnap state authority. A relevant example is Afghanistan, failed state that became an easy target for a terrorist organization that accomplished to control it completely.[24] The problem with rogue and failed states was at first catalogued as having humanitarian nature being a concern to human rights; lately it gathered a security dimension. Week or bad government “sub mines the principle of sovereignty” principle that governed international order after Westphalia” as the problems that this states generate “widely increase the possibility that somebody from the international community to intervene in their internal affairs, against their will, to resolve by means of force the existing problems.” [25] “Sovereignty and therefore legitimacy are no longer given automatically to the facto owner of power inside a state”. “Sovereignty seemed to be a very bad joke in the case of countries like Somalia or Afghanistan were state failure was so deep that they become governed by military and terrorist regimes”,[26] governments that contradicted to the human basic rights could no longer hide behind state sovereignty while  “committing crimes against humanity, especially in multiethnic states as former Yugoslavia.” In this conditions the international community states Fukuyama, “acting in the name of human rights and popular legitimacy did not only have the right to intervene but also the obligation to intervene.[27] Failed government can create security threats intolerable for the international community, as terrorism, organized crime, WMD and a state threatened by this can act to justification and legitimate its intervention to a sovereign other country. The restore of such a case can justify the result, just as in the case of humanitarian intervention. “The need to enter in such countries and take over the government, in order to eliminate such threats is evident.[28] A state enjoys its sovereign attributions as long as it protects its citizens, in the moment that he can no longer cope with that it always is the possibility of outside international intervention.
A second principle, ready to emerge, that becomes an imperative in projecting future international management is the “responsibility to prevent.” This responsibility to prevent  refers to those states that have continuously found themselves outside international order and law.[29] It is about a collective responsibility to prevent, which has the international community as a main subject. In essence, everything is deductible to the new sovereignty doctrine, reinterpreted on the responsibility coordinates, imputable towards international community. The sovereign state behavior becomes imputable to the international community, and in the moment in which that state effects global or regional security, the international community action becomes a necessity.
 

Under the Question Mark, Possible Conclusions
 

The ancient order, the international system based on the Westphalia principle of state sovereignty was not longer functioning. The system to which we walk is if not better to international community, at least more adapted to the new environment. The new risks and threats to security can no longer be managed with the old rules. New norms and regulations must replace the old ones. The international community must though act carefully in finding these new management regulations, these new laws and should affray itself in acting outside these very precise rules as it can create dangerous precedents.
To the pre-emptive American strategy, states that feel threaten can act pre-emptive to pre-emption as North Korea said it. International system needs its rules and cannot act outside law boundaries. If not, war can become a common thing. China could attack Taiwan pre-emptive, India could attack Pakistan or vice versa, since they can feel threaten by each other, the Arab states could attack Israel pre-emptive and this could lead to generalized conflict. The system cannot act outside law, and very strict and precise rules and condition need to be set in acting to complete these new norms.
Only time will tell about the future evolution of international law. A certainty remains the security environment has changed dramatically over the last decade, and today international law cannot comply with the new threats and must therefore reform somehow. In the end only history will decide if we act or not correctly in front of the new threats and risks to peace and security.
 

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·          ***    The United Nations Charter
·          ***    The National Security Strategy of the United States, 2002
·          ***    The National Security Strategy of the United States, 2006
·          ***    The European Security Strategy, A Secure Europe in a Better World, 2003
·          ***    The Responsibility to Protect, Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty
·          ***    Law of Armed Conflict, Human Rights Library, University of Minnesota