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Iraq Essay, Research Paper

Analysis of International Law

International law is the body of legal rules that apply

between sovereign states and such other entities as have been granted

international personality (status acknowledged by the international

community). The rules of international law are of a normative

character, that is, they prescribe towards conduct, and are

potentially designed for authoritative interpretation by an

international judicial authority and by being capable of enforcement

by the application of external sanctions. The International Court of

Justice is the principal judicial organ of the United Nations, which

succeeded the Permanent Court of International Justice after World

War II. Article 92 of the charter of the United Nations states:

The International Court of justice shall be the principal

judicial organ of the United nations. It shall function in accordance

with the annexed Statute, which is based upon the Statute of the

Permanent court of International Justice and forms an integral part of

the present Charter.

The commands of international law must be those that the

states impose upon themselves, as states must give consent to the

commands that they will follow. It is a direct expression of raison

d’etat, the “interests of the state”, and aims to serve the state, as

well as protect the state by giving its rights and duties. This is

done through treaties and other consensual engagements which are

legally binding.

The case-law of the ICJ is an important aspect of the UN’s

contribution to the development of international law. It’s judgements

and advisory opinions permeates into the international legal community

not only through its decisions as such but through the wider

implications of its methodology and reasoning.

The successful resolution of the border dispute between

Burkina Faso and Mali in the 1986 Frontier Dispute case illustrates

the utility of judicial decision as a means of settlement in

territorial disputes. The case was submitted to a Chamber of the ICJ

pursuant to a special agreement concluded by the parties in 1983. In

December 1985, while written submissions were being prepared,

hostilities broke out in the disputed area. A cease-fire was agreed,

and the Chamber directed the continued observance of the cease-fire,

the withdrawal of troops within twenty days, and the avoidance of

actions tending to aggravate the dispute or prejudice its eventual

resolution. Both Presidents publicly welcomed the judgement and

indicated their intention to comply with it.

In the Fisheries Jurisdiction case (United Kingdom v. Iceland,

1974) the ICJ contributed to the firm establishment in law of the idea

that mankind needs to conserve the living resources of the sea and

must respect these resources. The Court observed:

It is one of the advances in maritime international law,

resulting from the intensification of fishing, that the former

laissez-faire treatment of the living resources of the sea in the high

seas has been replaced by a recognition of a duty to have due regard

of the rights of other States and the needs of conservation for the

benefit of all. Consequently, both parties have the obligation to keep

inder review the fishery resources in the disputed waters and to

examine together, in the light of scientific and other available

information, the measures required for the conservation and

development, and equitable exploitation, of these resources, taking

into account any international agreement in force between them, such

as the North-East Atlantic Fisheries Convention of 24 January 1959, as

well as such other agreements as may be reached in the matter in the

course of further negotiation.

The Court also held that the concept of preferential rights in

fisheries is not static. This is not to say that the preferential

rights of a coastal State in a special situation are a static concept,

in the sense that the degree of the coastal State’s preference is to

be considered as for ever at some given moment. On the contrary, the

preferential rights are a function of the exceptional dependence of

such a coastal State on the fisheries in adjacent waters and may,

therefore, vary as the extent of that dependence changes. The Court’s

judgement on this case contributes to the development of the law of

the sea by recognizing the concept of the preferential rights of a

coastal state in the fisheries of the adjacent waters, particularly if

that state is in a special situation with its population dependent on

those fisheries. Moreover, the Court proceeds further to recognise

that the law pertaining to fisheries must accept the primacy of the

requirement of conservation based on scientific data. The exercise of

preferential rights of the coastal state, as well as the hisoric

rights of other states dependent on the same fishing grounds, have to

be subject to the overriding consideration of proper conservation of

the fishery resources for the benefit of all concerned.

Some cases in which sanctions are threatened, however, see no

actual implementation. The United States, for example, did not impose

measures on those Latin American states that nationalized privately

owned American property, despite legislation that authorizes the

President to discontinue aid in the absence of adequate compensation.

Enforcement measures are not the sole means of UN sanction.

Skeptics of the coercive theory of international law note that

forceful sanctions through the United Nations are limited to

situations involving threats to the peace, breaches of peace, and acts

of aggressiion. In all other instances of noncompliance of

international law, the charter’s own general provisions outlawing the

threat or use of force actually prevent forceful sanction. Those same

skeptics regard this as an appropriate paradox in a decentralized

state system of international politics. Nonetheless, other means of

collective sanction through the UN involve diplomatic intervention and

economic sanctions.

In 1967 the Security Council decided to isolate Southern

Rhodesia (now Zimbabwe) for its policy of racial separation following

its unilateral declaration of independence from Britain. As in other

cases of economic sanctions, effectiveness in the Rhodesian situation

was limited by the problems of achieving universal participation, and

the resistance of national elites to external coercion. With respect

to universal participation, even states usually sympathetic to

Britain’s policy demonstrated weak compliance.

The decentralization of sanctions remains one of the major

weaknesses of international law. Although international bodies

sometimes make decisions in the implementation of sanctions, member

states must implement them. The states are the importers and exporters

in the international system. They command industrial economies and the

passage of goods across national boundaries.

Furthermore, the UN is wholly dependent on its members on

operating funds, so no matter what decisional authority its members

give it, its ability to take action not only depends on its decision

but also on means. Without the support, the wealth and the material

assistance of national governments, the UN is incapable of effective

sanctions. The resistance of governments to a financially independent

UN arises principally on their insistence on maintaining control over

sanctioning processes in international politics.

Despite sweeping language regarding “threats to peace,

breaches of the peace, and acts of aggression”, the role of the United

Nationsin the enforcement of international law is quite limited.

Indeed the purpose of the UN is not to enforce international law, but

to preserve, restore and ensure political peace and security. The role

of the Security Council is to enforce that part of international law

that is either created or encompassed by the Charter of the United

Nations. When aggression occurs, the members of the Council may decide

politically – but are not obliged legally – to undertake collective

action that will have sanctioning result. In instances of threats to

or breaches of the peace short of war, they may decide politically to

take anticipatory action short of force. Moreover, it is for the

members of the Security Council to determine when a threat to peace, a

breach of peace, or an act of aggression has occured. Even thi

determination is made on political rather than legal criteria. The

Security Council may have a legal basis for acting, but self-interst

determines how each of it members votes, irrespective of how close to

aggression the incident at issue may be. Hence by virtue of both its

constitutional limitations and the exercise of sovereign prerogatives

by its members, the security council’s role as a sanctioning device in

international law is sharply restricted.

As the subject matter of the law becomes more politicized,

states are less willing to enter into formal regulation, or do so only

with loopholes for escape from apparent constraints. In this area,

called the law of community, governments are generally less willing

to sacrifice their soverein liberties. In a revolutionary

international system where change is rapid and direction unclear, the

integrity of the law of community is weak, and compliance of its often

flaccid norms is correspondingly uncertain.

The law of the political framework resides above these other

two levels and consists of the legal norms governing the ultimate

power relations of states. This is the most politicized level of

international relations; hence pertinent law is extremely primitive.

Those legal norms that do exist suffer from all the political

machinations of the states who made them. States have taken care to

see that their behaviour is only minimally constrained; the few legal

norms they have created always provide avenues of escape such as the

big-power veto in the UN Security Council.

Despite the many failures and restrictions of international

law, material interdpendence, especially among the states of

equivalent power, may foster the growth of positive legal principles.

In addition, as friendships and emnities change,, some bilateral law

may cease to be observed among new emnities, but new law may arise

among new friends who have newfound mutual interests. In the meantime,

some multicultural law may have been developed. Finally, research

suggests that the social effects of industrialization are universal

and that they result in intersocial tolerances that did not exist

during periods of disparate economic capability. On social, political,

ane economic grounds, therefore, international law is intrinsic to the

transformation and modernization of the international system, even

though the “law of the political context” has remained so far.

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Statement on the Iraq Bombing —

Join the Demonstration in Austin

by Andrei Buckareff

[Demonstration in Austin: Friday, January 8th, 11:45am at the downtown Post Office, 510 Guadalupe]

The decision on the part of our President to bomb Iraq, and the determination of congress to stand behind this decision, should raise a plethora of questions in the minds of the American people regarding the wisdom of our so-called leaders in matters regarding foreign policy. For the last eight years our country has waged a war against the people of Iraq in the name of ridding the world of a tyrant–a tyrant, lest we forget, that the United States supported and kept in power throughout the 1980s. While our leaders have stomped their feet and vituperated the Iraqi leadership for their horrendous record on human rights, they remain woefully silent about the fact that they did not raise such a stink during the 1980s when Hussein used poison gas against the Kurds (no doubt using weapons technologies we supplied).

Now that the red threat is gone, in the spirit of National Security Council Document No. 68 (dated April 14, 1950), the U.S. feels that it has an incumbent duty to remain the dominant controller/police officer of the world. The document states that “Even if there were no Soviet Union we would face the great problem . . . [that] the absence of order among nations is becoming less and less tolerable.” Moreover, as William Appleman Williams noted, the prosperity of the nation and the military industrial complex was/is predicated upon this perceived threat: “. . . pointing to the experience of World War II. . . NSC-68 confidently predicted that the increase in military spending would prevent the possibility of any socially and politically explosive ‘real decrease in the standard of living’.” So bombing Iraq, and keeping Iraq as our number one pariah, provides us with an excuse to keep the military-industrial-capitalist-complex going. The blood of innocent Iraqis provides the oil for the machine, and the industrial bourgeoisie are the chief beneficiaries. This most recent incident, then, should come as no surprise in light of our country’s initiatives in the past and interests in the present.

Finally, in the spirit of the cynicism I’ve adopted here towards U.S. foreign policy, Bill Clinton’s domestic problems, his prevarications aside, have a role to play in this matter. Lest we forget, back in August, when things heated up for him, he decided to blow up a pharmaceutical company in Sudan and bomb a few strategically insignificant sites in Afghanistan.

At this point, resistance is crucial. You can e-mail the white house at president@whitehouse.gov and give them hell. Also, protests started in Austin Wednesday, December 16 at 9 pm. The protests will continue every day at 5 pm (at 11th and Congress, in front of the State Capitol) until the bombing stops (editor’s note: the demonstration on Saturday, December 19 has been rescheduled for noon). We must pursue peaceful means of conflict resolution in the Persian Gulf region. The very fact that we are attacking right before Rammadan can only upset the people of Iraq more. (Imagine bombing Christians right before Lent, leaving them to clean up the mess.) This can only dehumanize the Iraqi people more. Violence will only perpetuate more violence. And continued violence against the Iraqi people can only galvanize support for Suddam Hussein–something, I suspect, our leaders want to avoid.

19 February 1998

Iraq – caught between the US and the UN

The current crisis in the Gulf might look like bully-boy tactics by the US and Britain, but in fact is a product of the institutions put in place after the crushing of Iraq by the Allied forces, argues Donna Kingsley

Iraq should expect bombing raids once the moon’s cycle is darkest after 24 February. This was the message spelled out in a major speech by US President Bill Clinton and lengthy debates in both the House of Lords and the Commons in Britain. Despite some pacifists’ posturing there appear to be few if any barriers to Clinton and Blair having their way and teaching Saddam Hussein a lesson.

The emphasis on Saddam’s alleged nuclear potential has placed ‘weapons of mass destruction’ at the centre of the debate. The setting up of the UN Weapons Inspectorate in the months after Desert Storm marked an important shift in international relations. UNSCOM, the United Nations Special Commission set up to identify and destroy Iraq’s nuclear, chemical and biological capabilities, has the power to interfere in Iraq on the pretext of global security, turning global policing into a ‘humanitarian’ issue, policed by a ‘neutral’ body, the UN. The image of international inspectors bravely negotiating their way, armed only with clipboards, into the arsenals of a tin-pot dictator seemed to mark a shift away from the era of Stormin’ Norman and US arrogance. In reality of course, behind the men in white coats is always the threat of being turned into ‘a charcoal briquette’, as North Korea was told in 1995 and as Iraq is finding out at the moment. It is inevitable that the process of weapons inspecting results in periodical acts of defiance by the inspected and to the flexing of the muscles behind UNSCOM.

Despite all the protestations about the use of force, the demonisation of Saddam is more entrenched now than ever before. Whether the chosen solution is the diplomacy of the UN chief Kofi Annan or the military threats of the Clinton and Blair brigade, the underlying belief is that Saddam is the problem. There is a consensus that something must be done about Iraq. Pacifist slogans in the UK say sarcastically ‘First we arm dictators – then we bomb their citizens’. There has been a disturbing absence of disbelief in the increasingly ludicrous claims about the kind of weapons Saddam is alleged to have at his disposal. Like something from a science fiction novel, in an article in the liberal-leaning Observer, prime minister Tony Blair described in gory detail the likely affects of Saddam’s stores: anthrax which makes people ‘drown in their own body fluids’; the ‘gas gangrene’ Clostridium and Atafloxin which ‘induces liver cancer’. The opponents of the proposed bombing do not seek to expose these fantasies, but claim that there is a greater risk from bombing the ‘presidential palaces’ than from disarming Saddam by negotiation. That Saddam needs disarming is unquestioned.

Those who see themselves as progressive may have an instinctive suspicion of the naked bullying tactics of the US and Britain. For them, the crude threat of smart missiles and ground troops reeks too much of old fashioned national self-interest. The bleatings from British commentators about the hypocrisy of war-mongering by the New Labour proponents of an ethical foreign policy miss the point: ethical foreign policy and bombing Iraq go hand in hand. Ethical foreign policy is all about identifying and punishing those states which do not fit into the etiquette of ethics and humanitarianism as defined by UK Foreign Secretary Robin Cook or US Secretary of State Madeleine Albright. Of course there is a tension between the ethical claims of Britain and the US and the nasty reality of blowing people’s heads off, but the consensus that Saddam is a threat who needs to be dealt with is the other side of moral outrage. Shouting ‘hypocrisy’ is no answer to the self-righteousness of Cook and Co.

War without end

To explain the crisis in the Gulf, you need to look no further than London and Washington, argues Brendan O’Neill

Why was Iraq the big international issue of 1998, culminating in British and US air strikes in December? Bill Clinton and Tony Blair would have us believe that Iraq poses a threat to world peace by continuing to build ‘weapons of mass destruction’. According to Blair, December’s air strikes were an attempt to ’stop Saddam Hussein from…developing nuclear, chemical and biological weapons’ (Sun, 17 December 1998).

Yet after seven years and more than 2400 inspections, UNSCOM (the United Nations Special Commission to Iraq charged with locating the ‘weapons of mass destruction’) has failed to find a single prohibited weapon. Asked what he thought Iraq’s arsenal consisted of, Charles Duelfer, deputy chairman of UNSCOM, said, ‘That’s a good question…We have enormous uncertainty’ (Impact, CNN, 4 March 1998). In the nine months since Duelfer made that comment UNSCOM has still not found anything incriminating. But on the ‘uncertain’ notion that Saddam Hussein is developing deadly weapons, Iraq has been bombed and subjected to crippling sanctions.

In reality, the conflict between the British and US governments and Iraq has nothing to do with ‘weapons of mass destruction’. The only such weapons that we know for certain exist in the Gulf are those used by the British and US forces. Last year’s air strikes were justified not by the discovery of Iraqi weapons but by the fact that the Iraqis failed to submit documents about their factories and chemical plants to UNSCOM. It seems that the only thing Iraq can really be accused of is hiding ‘memos of mass destruction’ and wanting to keep its internal affairs private.

The British and US governments seem to be in a permanent state of war with Iraq. Last year the ‘Gulf crisis’ was the major theme of British and US foreign policy and looks set to be the big international issue of 1999. Already this year there have been ‘dog-fights’ between the Iraqi army and US fighter planes and Blair has once again warned Saddam not to get ideas above his station.

This is a war without end. The Gulf crisis can never be resolved because it is not about what is happening in Iraq and not about ‘weapons of mass destruction’ or Saddam’s threat to his neighbours. It is driven entirely by what is happening in the West.

The weapons inspectors of UNSCOM play an important part in sustaining the permanent state of crisis between the West and Iraq. The real role of UNSCOM was exposed by ex-member Scott Ritter, who has been doing the rounds of the US and British media, describing the weapons inspectors as being like ’spies’. UNSCOM inspectors have gone from demanding access to factories and chemical plants to demanding access to Iraq’s presidential palaces and the Baath Party headquarters in Baghdad. By its very nature the search for weapons is ongoing and can never be satisfied, at least not until the weapons inspectors give Saddam himself an intimate body search.

UNSCOM is an open-ended licence to create a crisis between the British and US governments and Iraq. According to Iraqi minister for oil General Amer Rashid, ‘The policy…within UNSCOM is always to have an issue under consideration. So always the technique is to make it endless, this tunnel without a light at the end; the goal post is always moving’. This is the reality of UNSCOM; not as a body with a definite brief that can be achieved over a certain period of time, but as an ever-present force which can ‘move the goal posts’ when it feels like it and muster up a crisis.

This ability to conjure up a crisis at any time serves Britain and America well. The endless war with Iraq is driven by internal US considerations. Many cynics questioned Clinton’s motives in taking military action against Iraq, accusing him of trying to deflect attention from the impeachment procedures which were due to take place just days later. But military intervention abroad points to more deep-seated problems in countries like America and Britain.

At a time when not very much goes right for Western leaders they need the international arena in which to assert their authority. This is an ongoing crisis of authority which existed before Clinton and will exist after him. The permanent state of crisis with Iraq gives Clinton the ability to turn to the Gulf whenever he needs to bolster his position as the world’s moral policeman and counter the US view of the president as ‘Sick Willie’.

New Labour has become involved in the Gulf crisis as a result of its natural inclination to assume the moral high- ground on every issue. Tony Blair has not only been able to improve his relationship with Clinton through the Iraq crisis, it is also the perfect issue on which he can deliver a sermon and look down his nose at those beneath him. Hence all his language about ‘degrading Saddam’ and putting him ‘back in his cage’. The Gulf crisis goes on, not because the weapons inspectors have so far failed to find (non-existent) weapons, but because the crisis continues to serve the purposes of the British and US governments.

The transparent and self-serving nature of Britain and America’s policy on the Gulf has rarely been so exposed. This was illustrated in December by America’s isolation in launching the missile attacks on Baghdad. The UN secretary-general Kofi Annan registered his opposition to the air strikes by saying that his thoughts were with the men and women of Iraq. Other members of the UN security council were either openly hostile, like China and Russia, or quietly hostile, like France. Such differing views among the leaders of the ‘international community’ exposed the artificiality of Britain and America’s campaign.

For the British and the US governments, Iraq has become the one place where they are sure they can stand tall and look down on the world. In their pursuit of this moral authority Clinton and Blair have clearly decided that Iraqi lives are worthless and expendable.

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