Prerogatives of International Legal Obligations: An International Relations and Pragmatism Approach

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Insight

International Legal Obligations have a dynamic perspective. Beyond the principles of erga omnes, jus cogens and pacta sunt servanda, the basic principles of international law dealing with such matters are in furtherance with the reality of an optimal utility of the IR aspect that prevents state from being vaguely implicative. The persistent objector principle and other concepts relate to that perspective. With the change in the policy factions of Arab League and the relative representation of DPRK as per VCLT, is instrumentally something more than important and considerably important and different. The article emphasizes over those instrumental aspects that are of interesting and top-notch concern.

 

Introduction

International Law is generally based on what its general relevant instruments are presupposed to act or how is the realist aspect of the practice stays afloat. Sovereignty and self-determination, as the two sides of the same coin, do exist together in every unit of international legal personalities such as the states, where both of them diversify and develop within a required conglomeration of responsibilities and privileges. This may not be an obvious figure but it is understandable that basic key-players as the international legal personalities or any state or not state-actor has primarily emerged from these two repulsive phenomena. Even hegemony defines the objective and subjective traits of the both. Henceforth, emergence has it that these two basic concepts of remarkable concern have developed from how relevance and existence is shaped. Even some of the basic political principles, such as Liberalism, Communism and Realism signify how state practices are represented. Moreover, the principles of sovereign equality and competences d’attribution and ‘persistent objector’ and collective defence do signify how delicately the instrumentations of universality even existent in the International Humanitarian Law. This article focuses on a crispy insight of certain principles and conceptualities in international law, which are not just about the relations perspective always, but yes, somehow related.

Self-determination and Persistent Objector: A Quest

In the ILC Draft Articles on Diplomatic Protection of 2006[1], akin to the Vienna Convention on Law of Treaties[2], the law of responsibility becomes a matter of imperative consideration, where it affects state practice. Thus, sovereignty itself becomes an attribute of wider approach, where self-determination reflects not only the characteristic of every individual, but of every entity, which is entitled to represent itself. He or she or it can be disintegrated into state or non-state actors, where this differentiation itself depends on how their action and relevance suggests. In short, the relativity in sovereignty is mutatis mutandis the relativity in self-determination. Let us a special case from the ILC Draft Articles on Responsibility of Internationally Wrongful Acts[3] via its Articles 23, 40 and 41.

Article 23[4] stipulates about the concept of force majeure, where the ILC states the contingent probabilities of “is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State,13” therefore “making it materially impossible in the circumstances to perform the obligation13”. Material impossibility of performance giving rise to force majeure may be due to a natural or physical event[5] as a conceived idea may be attributed as a broad concept, has been received in the various municipal law systems (civil law system, common law system, etc.) as well as in the various law branches into which those systems may be divided (private law, administrative law, criminal law, etc.)[6]. It is not. however, in the field of the primary rules that force majeure plays its more important role as a legal concept, but rather in connexion with those rules governing responsibility for non-performance of obligations provided for in primary rules.[7] Henceforth, this is quite understandable that force majeure is a conditional restriction resembling responsibility within itself and its activities, with which it is or gets concerned. Even in a submission given by Mexico in the United Nations Conference on the Law of Treaties in Vienna (1968-69), it was clearly stated that “the result of the force majeure is to render permanently impossible the fulfilment of its obligations under the treaty[8]”. Thus, sovereignty is not debarred, but the misuse of its immunity and equality that it provides, states may breach the obligatory considerations of a pacta sunt servanda[9]. Moreover, it is not the breach only that affects the fate of the membership, relevance and action of a treaty, but it also affects the International Relations in all terms such as what the United States of America did via withdrawing the Paris Agreement. However, despite the U.S. federal government’s decision to withdraw from the Paris Agreement, Alliance members are committed to supporting the international agreement, and are pursuing aggressive climate action to make progress toward its goals[10]. Henceforth, relevance is what institutions, whether it is human instruments, state actors or non-state actors. The correlative duty of respect for territorial sovereignty[11] in its all respect is actually the resemblance of organized or accountably phasing and positional presence. It is akin to the idea of organic thinkers, when they stipulate a state as an organism or a living body[12], where these thinkers assume the priority of state comparing to a man. This actually makes us ascertain the safeguarding of self-determination and merging it into an idea[13], which is reflected but is absent when it merges. Aristotle in his book, Politics, Book I, says, “The state is by nature clearly prior to the family and to the individual, since the whole is of necessity prior to the part; for example, if the whole body be destroyed, there will be no foot or hand, except in an equivocal sense, as we might speak of a stone hand[14]”. Here we understand the realm of self-determination existent as a matter of representation.

The persistent objector doctrine v. the collective defence principle

 Both the principles, in pursuance to International Law, have been differently applicable. However, both of them bear a sui generis capability, which intends us to deepen the prospects that both the principles share common-

  1. Both the principles share absolute and subjectively qualified adherence;
  2. Both the principles share the beautiful attribution to representation in more better dimensions;
  3. Both the principles are traditionalized and to an extent, are vague;

International Law never has an intent of being vague; it is the optimate mobility that States require. The Security Council of the United Nations is a sure example. Whether or not, the positive side of the third paragraph of the Article 27 of the Charter of the United Nations does not exist in its purview, which is obviously the aftermath of veto power. Howsoever, it is not that the traditionally recognized and reaffirmed concept of veto in UNSC makes the Security Council fail. There always exists a vague data in sovereignty, but it is not the fault of the principle itself, but of just the subjective considerations, which instrument another juxtaposition to think over the broadened realm of sovereign equality. Persistent objector, is not merely a tool of customary international law, but is surely a magnum of politico-legal submergence of action, negation and restriction. The traditional factor, which weakens it, as in the case of UNSC vetoes, is not so true in picture. In fact, the maintainability of the rule of law in a decentralised concept of International Law is accountably possible, where the approach towards VCLT seems to be intriguing. The VCLT’s exit provisions, together with those set forth in the agreement itself, are intended to be exhaustive.[15] A recent and high-profile dispute involving Article 56 of the VCLT concerns North Korea’s attempt to denounce the International Covenant on Civil and Political Rights (ICCPR) in 1997. In response to the State’s action, the UN Human Rights Committee (HRC) issued a General Comment concluding that the ICCPR was not capable of denunciation or withdrawal[16]. It then reasoned that the rights protected by the ICCPR ‘belong to the people living in the territory of the State party’ and cannot be divested by changes in government or State succession.[17] As a result, the treaty ‘does not have a temporary character typical of treaties where a right of denunciation is deemed to be admitted, notwithstanding the absence of a specific provision to that effect’.[18]

Collective defence is never a hoax; it depends on the aspects of the utility of responsibility, which constructs it. On 20 July 2008, weeks before the Russian invasion of Georgia, the "zombie" computers were already on the attack against Georgia[19]. The NATO treaty, which guarantees its members against a territorial intrusion, was used in the utility of its Article 5, where yet the era of cyber war and electronic intrusion represents a threat akin to traditional warfare that is of a new, still-developing nature[20]. Thus, the nature of activity, where same in the case of a persistent objection, not being ultra-traditional, widens the scope of collective defence. Faced with a looming humanitarian disaster in the Balkans, U.S. President Bill Clinton and NATO Secretary-General Javier Solana ordered NATO to launch airstrikes against Yugoslavia to restore order and prevent Serb forces from inflicting further harm on the Kosovar population[21]. However, India’s invasion of Bangladesh in December 1971 was the first internationally recognized humanitarian intervention on behalf of non-nationals since the birth of the U.N. Charter[22], which was also justified under the doctrine of self-defence, given the fact that Pakistan, in anticipating an Indian move, had launched [23]a pre-emptive air strike against Indian airfields[24], which marks defensive action in a more realistic and considerable way. Thus, traditionalism does not tend to persist in this generation of humanity in case of sovereign representation, action and inaction, which shall further in its more mature attributions.

 

 

 

 

[1] Available with commentary in A/61/10.

[2] United Nations, Treaty Series, vol. 1155.

[3] Report of the International Law Commission on the work of its fifty-third session on the Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, A/56/10, p. 76.

[4] Id.

[5] Supra note 4.

[6] Extract from the Yearbook of the International Law Commission, 1978, Vol. II (1), A/CN.4/315, p. 66.

[7] Id. at 67.

[8] Official Records of the United Nations Conference on the Law of Treaties, Documents of the Conference (United Nations publication, Sales No. E.70.V.5), p. 182, document A/CONF.39/14, para. 531 (a).

[9] Supra note 3 at 339.

[10] United States Climate Alliance, About, (December 12, 2017) at https://www.usclimatealliance.org/.

[11] Corfu Channel (UK v. Albania), ICJ Reports 1949, 4, 35; UN Charter, art. 2(4).

[12] O.P GAUBA, AN INTRODUCTION TO POLITICAL THEORY, MAYUR PAPERBACKS 232. (7TH EDITION, 4TH REPRINT, 2016).

[13] This is as similar to what John Locke asserted in his Social Contract theory. He postulated the conditional but rational (rather assumable or presumable) where he attributes a more logical set-up disintegration of the relevance of the consent given to safeguard the 3 rights to life, liberty and property other than the rest of the 19 rights that he asserted. It is not like feared as stated in Leviathan and based on self-ideas as stated by Rousseau.

[14] ARISTOTLE, POLITICS, BOOK 1, 2 (Translated by Benjamin Jowett, 350 BC) at http://pinkmonkey.com/dl/library1/gp017.pdf (January 18, 2018).

[15] Laurence R Helfer, Terminating Treaties 636 (April 11, 2012) (unpublished manuscript, on file with Oxford University Press).

See: VCLT art. 42(2) (‘The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention’).

[16] Id. at 639. See: UNHRC, General Comment 26 UN Doc CCPR/C/21/Rev1/Add8/Rev1 (1997)

[17] LR Helfer, Exiting Treaties, 91 VIRGINIA L. R. 1579, 1582 (2005).

It explains that ‘exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in an intergovernmental organization’, which creates the intriguing sense.

[18] Id. at 639. See: E Evatt, Democratic People’s Republic of Korea and the ICCPR: Denunciation as an Exercise of the Right of Self-defence? 5 AUSTRALIA J. HUMAN RTS. 215, 219–20 (1998).

[19] John Markoff, Before the Gunfire, Cyberattacks, THE NEW YORK TIMES, at http://www.nytimes.com/2008/08/13/technology/13cyber.html (12 August 2008); Travis Wentworth, How Russia May Have Attacked Georgia's Internet, NEWSWEEK, at http://www.newsweek.com/how-russia-may-have-attacked-georgias-internet-88111 (23 August 2008).

[20] Kertu Ruus, Cyber War I: Estonia Attacked from Russia, THE EUROPEAN INSTITUTE, at http://www.europeaninstitute.org/index.php/component/content/article?id=67:cyber-war-i-estonia-attacked-from-russia (2008).

[21] Dr. Klinton W. Alexander, NATO’S INTERVENTION IN KOSOVO: THE LEGAL CASE FOR VIOLATING YUGOSLAVIA’S “NATIONAL SOVEREIGNTY” IN THE ABSENCE OF SECURITY COUNCIL APPROVAL, 22 H.J.I.L. 2 (2000). See S.C. Res. 1203, U.N. SCOR, 53rd Sess., 3937th mtg. at 1, U.N. Doc. A/SC/3937 (1998)

[22] Id. at 13.

[23] Id. See RICHARD B. LILLICH & FRANK C. NEWMAN, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW AND POLICY 486, 495 (1979).

[24] Supra note 22.