1  GOLD MERCURY INTERNATIONAL  Eight Global Governance Areas: International Law and Humanitarian Affairs
International Law GLOBAL GOVERNANCE SERIES
and Humanitarian Affairs Human rights> corruption> death penalty> torture> slavery> prisoners of war> poverty alleviation> humanitarian relief efforts> humanitarian intervention> natural disasters> gender equality> human security>
forced migration> civilians and armed conflict> international criminal law and justice> customary law> legal affairs> local, national and international politics
Gold Mercury’s Global Governance Series is designed to offer an informative and invaluable insight into how our world works. The series is structured according to Gold Mercury’s Global Governance Model™ which identifies eight Global Governance challenge areas and a number of corresponding subareas. In each area we address where major policy discussion emanates from, who the key actors are, what developments and challenges we can expect the future to present and which actors are making a considerable contribution to finding global solutions to global challenges.
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Towards an Understanding of the Contemporary State of International Law and Humanitarian Affairs Global Governance in the domain of International Law and Humanitarian Affairs represents a dynamic and evolving task in which existing paradigms of multilateral cooperation and legislation are increasingly being dissected by new challenges and threats that require innovative and anticipatory mechanisms of governance.
International law and human rights legislation have come a long way since the signing of the United Nations Declaration (1942) which saw the Allied nations attempt for the first time to create a world in which ‘men in all lands may live out their lives in freedom from fear and want’. A progressive commitment to peace, international cooperation and the security of all nations has indeed permeated the post-Second World War development of multilateral institutions such as the United Nations and the establishment of the rule of law at both national and international levels. >
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Nevertheless the first decade of the new millennium has provided us with many stark reminders of the challenges we face in negotiating a global polity in which respect for the human rights and security of all persons is recognised as the basis from which life and livelihood may spring forth. Civil wars within fragile states, economic failure, climate change and transnational criminal networks have all undermined multilateral institutions and the dominant state actors that have traditionally led them. The result is that bureaucratic complexity and self-interested values have often precluded the development of the dynamic frameworks and organisations necessary to secure the effective implementation of international law. Indeed today, more than ever, we live in an increasingly interdependent world in which the need for institutional coherence between various state, private and civic organisations is paramount. Through the assessment of specific challenge areas within the domain of International Law and Humanitarian Affairs this global briefing seeks to identify the existing frameworks and treaties through which discussions are presently channelled, in addition to the policies necessary to ensure successful governance in a changing world.
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International Law and Legal Affairs On 10 December 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) which for the first time in human history spelled out the basic civil, political, economic, social and cultural rights that all human beings should enjoy. In conjunction with the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights The necessity to promote the (1966), such legislation may be seen to constitute the universality of human rights law has in so-called International Bill of Human Rights that forms the cornerstone of contemporary international law. The turn seen the formulation of eight UN necessity to promote the universality of human rights treaty bodies each designed to safeguard law has in turn seen the formulation of eight UN treaty rights in specific challenge areas. bodies each designed to safeguard rights in specific challenge areas. These are as follows: ○ Human Rights Committee (HRC) ○ Committee on Economic, Social and Cultural Rights (CESCR) ○ Committee on the Elimination of Racial Discrimination (CERD) ○ Committee on the Elimination of Discrimination Against Women (CEDAW) ○ Committee Against Torture (CAT) ○ Committee on the Rights of the Child (CRC) ○ Committee on Migrant Workers (CMW) ○ Committee on the Rights of Persons with Disabilities (CRPD) By becoming parties to the above treaties, States assume duties and obligations under international law to respect, protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect >
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individuals and groups against human rights abuses. Finally, the obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights. In addition several bodies within the UN engage in activities and partnerships with civil society organisations that protect and promote human rights. These include the World Health Organisation (WHO), International Labour Organisation (ILO), the UN Children’s Fund (UNICEF) and the UN Human Settlements Programme (HABITAT). As will be demonstrated through the subsequent analysis of specific challenge areas within the sphere of international law and humanitarian affairs, a myriad of treaties, constitutions and organizational partnerships have provided an interdependent framework of international legislation designed to promote and implement good global governance norms. Customary Law In contrast to the written conventions established through treaty law in which States formally establish specific rules, customary law may be seen to derive from general international practices that have come to be accepted as law. In particular such practice can be found in military manuals governing the conduct of hostilities within non-international conflicts and in cases of coalition warfare in which States have ratified different international treaties governing their conduct. The requirement that such practices be In addition the report identified accepted as law is commonly referred to as opinio juris a number of customary rules on and has distinct applications with regard to international humanitarian protocol within conflict zones. international humanitarian law that define in much greater detail than treaty The 26th International Conference of the Red Cross and Red Crescent, held in December 1995, law the obligations of States in instances requested that the International Committee of the Red of non-international armed conflict. Cross (ICRC) carry out an in-depth study to identify and facilitate the application of existing rules on customary international humanitarian law. The results demonstrate that customary international law may add to existing treaty law in instances where treaties have not been ratified universally or apply to international as opposed to internal state affairs. In addition the report identified a number of customary rules on international humanitarian law that define in much greater >
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detail than treaty law the obligations of States in instances of non-international armed conflict. For example whilst treaty law does not expressly prohibit attacks on civilian persons in cases of non-international armed conflict, such a prohibition has developed under international customary law. Customary international humanitarian law may therefore fill important gaps in the protection provided to victims of armed conflict by treaty law whilst negotiating wider knowledge of the law and the existence of possible sanctions in cases of non-compliance. In addition such laws may facilitate the promotion of good governance norms outside the often incomplete passages of treaty law. International Trade Law and Corruption The World Trade Organization (WTO) is the primary international body that deals with the rules of trade between nations at a global level. The bulk of the WTO’s current framework may be seen to derive from the 1986-94 Uruguay Trade Round and earlier negotiations under the General Agreement on Tariffs and Trade (GATT). As an organization the WTO attempts to promote trade liberalization, provide a forum for governments to negotiate trade agreements and lay out the legal groundrules for international commerce. In an economic climate in which levels of trade are increasingly shrinking - on 23 March 2009 the WTO predicted that global trade will plunge by 9% this year - and the dangers of protectionist policies are again on the rise, the World Trade Organization and G20 leaders are falling under increasing pressure to sustain open trading markets. A commitment to negotiating successful dialogue and transparent trading policies between nations is therefore a key prerequisite to international cooperation in the new millennium. >