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Democratic Governance and International Law

Democratic Governance and International Law (Cambridge University Press ) 2000 Editor

From Amazon.com: "This book considers how the post-Cold War democratic revolution has affected international law. Traditionally, international law said little about the way in which governments were chosen. In the 1990s, however, international law has been deployed to encourage transitions to democracy, and to justify the armed expulsion of military juntas that overthrow elected regimes. In this volume, leading international legal scholars assess this change in international law and ask whether a commitment to democracy is consistent with the structure and rules of the international legal system."

AU International Law Review

AU International Law Review

Peace Education

In the following extract, Ernst-Otto Czempiel explains the effect of international law as a peace strategy, while at the same time highlighting the limitations of this strategy, which is dependent on consensus between the states. One of the most significant achievements of international law is the codification of human rights.

"Given that peace - and its opposite, war - represent interaction, it follows both in historical and logical terms that strategies for peace should seek to influence directly these relationships. (...) Two large and important attempts in this direction [exist] (...): international law and the concept of international organization. By 1625 at the very latest, following the publication of Hugo Grotius' „three books on the lawfulness of war and peace“, international law has seen the right to peace as one of its characteristics. This understanding, however, has come more and more to the fore as international law has developed. International law seeks to influence interaction between states by codifying their rules. (...) In theory, the relationship between pace and international law can be easily defined. Jurisdiction is the highest and most peaceful form of resolving conflict, because it links non-violence and justice to each other. To this end, jurisdiction is justifiably controlled by the opposing side of the conflict resolution continuum.

Codifying the law does not mean creating it. And it because of this that international law is often accused of describing and preserving dissatisfaction in its current state. This is only correct to a certain extent and plausible from a retrospective position. Indeed, it would have made little sense to have postulated nothing but ideals. Given that there is no law-making and law-sanctioning authority in the international system, international law is only able to put down in words the things that the states that participate in the system are prepared to accept as being binding. Putting progress down in writing represents (...) another advancement.

But has international law failed to have its own direct influence on the peace process? Well, for one, it has introduced into international politics a way of dealing with conflict through arbitration and judgment and with the permanent court of arbitration 1899, the permanent international court of justice 1920 and the ICJ set up authorities for this purpose.

Secondly, international law has also developed approaches for peacefully changing unjust situations, albeit only by introducing a small number of rules into the statute of the League of Nations and the United Nations. And, thirdly, it has also paved the way for the further development of international law by developing new legal norms that are far ahead of the current circumstances and current state of awareness. This achievement mostly concerns the period following the Second World War in connection with the United Nations. It is, of course, also possible to argue that the first two were achieved by nation states, with assistance from international law, which is personified by political science. The third of these achievements can be attributed exclusively to international law.

Apart from that, political interests have also played their part in the further development of international law: for instance European pacifism during the 19th century, which played a major role in driving forward the establishment of the international courts of arbitration and courts of justice; and the Third World, which introduced the right to development into international law. The term international law, then, is used here as a shorthand expression to encompass a number of players: states, the science of international law and interest groups. These different players are integrated in seeking to limit and eradicate the use of force in the international system using a legal process to rule over interaction between states. (...)

The most significant aspect of international law lies in codifying the individual stages associated with the peace process. While Grotius (1584-1645) is regarded as the founder of modern international law, the Dominican de Vitoria was almost 100 years ahead of him as the creator of the first comprehensive codification of the existing laws surrounding peace and war, followed only a little later by the Spanish Jesuit Suarez (1548-1617). It was these three, but especially Grotius, who were responsible for the international law of modern times by making it to a system of regularity for intergovernmental relationships between the developing territorial states based on natural law. (...)

Regularity is the central term on which international law during modern history has been founded. While it didn't' do away with war, it did manage to „monitor“ it (Carl Schmitt). This was certainly of benefit to peace as non-war. By limiting and creating order to war, the horrors, which would have been caused by the unrestricted use of force, were reduced. War became a recognized political means, which could be implemented in certain circumstances and, therefore, lead to success. Its use was codified by classic international law, which remained valid until the First World War. It didn't contain peace strategies in the true sense, but rather served in regulating the use of war. To this end, it reflected the interests of the territorial state and absolutism, whose aims were more to do with capturing land and populations than bringing about their destruction.

This involved the use violent and non-violent methods. The international law of the Modern History period developed negotiation (colloquium), agreement (compromissum) and lots (lors). Of these means, agreement or rather compromise was the most important. It's important, however, not to attach too much weight to its former significance in terms of peace strategy. Indeed, if reaching a non-violent agreement was not possible, war was always available as an acceptable alternative.

Its position as „ultima ratio regis“ was undisputed in the ius publicum europaeum. The states and the people who lived in them were regarded as the private property of the sovereigns, whose relationship between each other was regulated by international law. The sovereign did not embody the state, they formed it - as was famously expressed by Ludwig XIV.

This means, then, that international law was firmly designed and intended as a strategy. International relations during the development of Modern History, in as far as they were politically relevant, were carried out between the sovereigns. Society was affected, but only in a selective way. Even when war did break out, it only affected small and limited parts of the country rather than its entirety. And anyway, the developing exchangeable economic relationships apart, there was hardly any interaction between the different parts of society worth mentioning. Indeed, horses were the fastest mode of transport and communication up until the 19th century. This also served in limiting the extent to which Absolutist power could be exercised; it did however serve in mediatising its subjects entirely in terms of the political interaction in the system. Only against this ruler-sociological background was it possible to place war and peace on an equal footing in the political and legal consciousness of Modern History.

Indeed, even the French Revolution, which replaced sovereignty of the king with sovereignty of the people, did not put an instant end to this situation. This new form of sovereignty did not abolish the mediatazation of the individual and even served in strengthening the foreign affairs of the political systems. These systems represented the state's interests vis-à-vis other states and demanded subordination below the rulers in return for security. The difference now was that these systems had to be functionally justified as a consequence of sovereignty of the people. The assent of the individual to a subject of politics, which was brought about by the French Revolution, resulted in an increasing demand for people's existence to be preserved. At first these demands were only raised in the special circumstances of war, when the protection and claim of the state were released to an equal extent; and it was for this reason that ius in bello was expanded. During the 19th century, however, this demand spread to encompass the entire scope of politics. And it was this demand that did away with the equal importance of war and peace, that made peace the primary desired state of international politics and, finally, de-legitimized the use of violence in the international system.

This process of democratization, which was triggered by the French Revolution, which slowly gathered pace during the 19th century, which accelerated during the 20th century and which still has a long way to go, has been significantly reflected in the development of international law. The Declaration Respecting Maritime Law in Paris in 1856 expanded the ius in bello and at the same time represented the birth of humanitarian international law. For the very first time it was becoming apparent - and this was also reflected subsequently in the first Geneva Convention in 1864 and especially in the Hague Agreement about the Regulation of Land War 1907 - that the individual had elementary rights which should not be mediatized and had to be respected by the state. (...)

The evolvement of the pacifist movement in the 19th century, which accompanied democratization, led to more and more vigorous demands for war to be abandoned and replaced with mediation as a peaceful means. While it might not have been triggered by this movement, the first institutionalized procedure for achieving a non-violent resolution to conflict at the end of the 19th century in the form of the court of arbitration was certainly brought about by it. Then, at the end of the First World War, the decisive if incomplete political measures were taken to limit considerably the "freedom to declare war". A peaceful arbitration process and a waiting period was slotted in ahead of war.

This represented the beginning of the end for the classic international law phase. From now on war and peace were no longer equal partners in the international system; international law now called for "strict guidelines" to be put in place that are "appropriate" for effectively preserving peace between the peoples“ (Article 11). The development of international law was then pushed further forwards with the draft of the Geneva Protocol in 1924 and the Kellogg Pact in 1928, which included a clause whereby the states agreed to forgo war as an instrument of national politics. This pact was more important in principle than it was practically or politically, particularly since it gave up the link made in the Geneva Protocol between non-aggression and the peaceful resolution of conflicts. Nonetheless, it did document a change in sentiment and signalled the end of the ius ad bellum.

The sense of awareness brought about by the Second World War resulted in the United States leading the way to the United Nations Charta which, in art. 2 not only prohibited war but also the use of military aggression, which were replaced by a set of rules for reaching agreement laid out in chapters VI and VII. The Charta is justifiably referred to as "groundbreaking" in terms of international law. It went largely unnoticed, however, that in as successful as the Charta was in tuning the corner it also turned its back on the specific legal-based methods of solving conflict in the form of the international court of justice and arbitration and moved towards a political mechanism for reaching agreement, like the one made available to the Security Council. Therefore, the arrangements in place for resolving conflict under the United Nation's Charta should be seen in the context of international organization and not in the context of international law.

The contribution made by international law towards strategies for peace, however, should not be seen just in terms of codifying the agreements made by nation states. Although this function is important enough, it also serves in making sure that that which has been achieved in terms of resolving conflicts cannot be avoided or forgotten. The Charta of the United Nations, for instance, discriminates against any attempt to reintroduce international use of aggression through the backdoor of a „just cause“ such as for a fight for national independence, which would mean returning to the outdated concept of bellum iustum.

It should also be pointed out that international law has done more than just codify the agreements between nation states, that is, the consensus between them. It also sought to establish institutions for dealing with international conflicts, which were similar or analogous to domestic means of jurisdiction. At the two Congresses of Europe at The Hague during the period of the League of Nations and at the beginning of the United Nations, these institutions were able to attract a great deal of attention, but have since been rather neglected. (...)

A good example of the way in which international law has continued to develop through the formulation of new principles and norms, as well as the contribution made to this process by political science, is particularly well illustrated by the attempts made to anchor human rights into law on an international scale. Human rights were mentioned in the statue of the United Nations: in its preamble in article 1, par. 3, and also in article 13 of the Charta. They were also generally announced by the United Nations on the 10th of December 1948 in the Universal Declaration of Human Rights. But human rights would have to wait until 1976 before they were made binding in international law, as the two „human rights pacts“ on civil and political rights and on economic and social rights came into force. As far as the signatories to these conventions were concerned, human rights became binding in law, even though it was left up to them to decide whether to adhere to the convention or not.

The limitations resulting from this, then, are considerable, especially in terms of implementing practical human rights observance measures. Yet for all this, the progress made by this convention is considerable. It documents the existence of a general set of rights that breaks through the vertical structure of the international system and puts the sovereignty of the state into perspective. It has made the individual the subject of policy with genuine rights and requirements that may not be encroached upon by the state.

Human rights make it clear that basic political interests exist which transcend all cultures and which are common to everyone in the world. That these rights are now demanding their place in the structure of world politics clearly demonstrates a new political human awakening and that at the very least a fundamental political standard has been established that is seeking recognition on a worldwide scale. To have put these into words and to have established them as an international norm represents the most significant achievement of international law and the political scientists involved. Changing political norms serves in changing awareness and influences, albeit indirectly and over the long-term, behavior; to this end, then, they make a contribution to peace.

On the other hand, however, it's important not to overestimate the codification of international law and its further development in functional terms. The most important reasons for this have already been mentioned. International law is and remains a consensus right, which depends on being accepted by all participating states. Its contribution to peace can only be as large as the members of the system will allow. To this end, it is up to states as to whether and to what degree international law can promote peace."

Principles of Public International Law

Principles of Public International Law has been shaping the study and application of international law for over 40 years. Written by a world-renowned expert, this book was the first to bring human rights into the mainstream of international law.

This seventh edition, fully updated since 2003, continues to provide the balance, clarity and expertise expected by Brownlie readers. The depth of knowledge displayed by the author, along with the detailed referencing and logical structure, make this title an indispensible resource for students, scholars and practitioners working in or studying international law.

* The most well established and authoritative textbook on international law on the market - readers know that they will be accessing unequalled expertise and knowledge in this book

* Gives readers a carefully balanced perspective on international issues from the point of view of someone who has had substantial experience as Counsel and Advocate in international tribunals and also as Arbitrator. The book has appeared in local language editions in countries including China, Japan, Korea, Portugal and Russia.

* Superb coverage of jurisprudence and historical materials allowing readers to follow and gain a deeper understanding of the development of international law, which is essential to its comprehension

* Includes rigorously detailed references and a particularly thorough and comprehensive index, making it the ideal reference text or stand alone resource

LLM Maritime Law

 

Maritime law is a fascinating blend of commercial law and environmental law, of private law and public law, of national law and international law. Characters include salvors and scuttlers, pirates and pilots, treasure hunters and tug owners. Maritime law unfolds against the most dramatic of backdrops, such as war and invasion, storms and pollution disasters. It addresses issues as diverse as the liability of carriers of goods to the exploitation of fish stocks, the legal response to stowaways to the insurance response to smuggling.

ECSC Graduated 576 Civil Servants of Public Internationl Law

The Ethiopian Civil Service College graduated 576 students in nine fields of study with bachelor and masters degrees on July 17, 2010. The college graduated 438 students in post graduate programs and 138 students in undergraduate programs. The programs include, among others, Urban Management, International Law, Comparative Public Law and Good Governance, Public Financial Management, Urban Engineering, Development Management.

Opening the graduation ceremony, Dr. Haile-Michael Abera, President of the Ethiopian Civil Service College underscores that performance capacity building is one of the key government policies which are designed to promote peace, democracy and good governance and secure development in the country. Our Performance capacity building objective is securing all sided development and successfully implementing policies, strategies and programs which benefit the people at large said, Dr. Haile-Michael.

In achieving this objective, said Dr. Haile Michael, the entire peoples of Ethiopia including the private sector are exerting concerted efforts, and remarkable achievements are being registered as a result. He also added that with respect to capacity building, a lot of reform works which build the capacity of the civil service in knowledge, skills, attitude, performance and organization are underway.

Dr. Haile Michael added to support these efforts, the College has done a lot in offering undergraduate and postgraduate programs, delivering short term trainings, conducting researches and giving consultancy services which focuses on the civil service sector and important for the development of peace, democracy and good governance in the country.

The president further said for the past four years the college carried out the task of assisting the federal ministries and agencies and regional governments in their effort to study and implement business process reengineering activities and balanced scorecard.

Dr. Haile-michael emphasized along with the teaching and learning business, the college has been continuously building its internal capacity and is now able to offer 13 undergraduate and post graduate programs through the six institutes. The number of students reaches more than 9,000 in regular, evening and distance sessions and 260 PhD and masters holder lecturers and consultants are giving their services. Including today’s graduates, the College graduated 5506 civil servants in bachelor degrees, 1740 in master degrees, and 8000 in regular diploma and distance education, Dr. Haile-michael said.

Besides the College offered short term trainings in identified areas which are crucial to enhance the capacity of the civil service and reform package via face to face, E-learning and video conference. So far 20,000 trainees from federal, regional and non-governmental organizations participated

Finally Dr. Haile-Michael stated that the college is now actively involved in expanding its programs in collaboration with inland and external organizations to benefit the public. Accordingly the college opened Public Procurement and Asset Management Department for the purpose of building the capacities of the public service sector in managing and auditing the public assets and procurements. Additionally the College is on the way to open Leadership Institute in the coming year.

According to the president the College signed Memorandum of Understanding with Kehl University, in Germany to open Public Policy Studies Centre in masters degree and conduct research work in the area. The College is also designing a project in collaboration with Toronto University, Canada to offer masters program in Ethics, Anti Corruption and Good Governance.

Later graduates of the year took their degrees from the College President and Four students, two of them are female, awarded gold medals.

Finally, graduates conducted a swearing of an oath to serve the public with honesty, integrity and provide quality, efficient and effective service devoid of corruption and other malpractices.