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Last Updated: 07/15/2013The Myth of Rule of Law
Shant Abou Cham
Law is neither morally just for its own sake, nor is it capable of securing international peace and stability as it is based on contested notions of territoriality and sovereignty. Shant Abou Cham explains.
This paper will discuss how Rule of Law and International Law have failed to live up to the expectations, and have turned into a mere tool in the hands of powerful nations to further their interests. The author will argue that International law and rule of law have lost their moral foundations, in the sense that territorial integrity and borders have a superior legal standing then people and their right for self-determination.
Jan Klabbers argues that the rule of law, which was once considered to shield humanity from the exercise of naked power, is unable to perform this task, and it is privileging some while oppressing others. Governments sometimes lose their moral authority to rule and govern, after they become detached from the citizens, stop becoming responsive to their needs and demands, and continue to commit gross Human Rights violations. Rule of law and international law in the same way lose their moral foundations when it continues to be used as a mere tool in the hands of states and superpowers to further their interests.
After the Treaty of Westphalia, the concept of nation-states started to develop. The central features of the nation-state had two external and two internal dimensions. The external dimensions were precise border delimitation and jurisdictional congruence- which represented a new territorial regime, while the internal dimensions were administrative homogeneity and direct rule (Kahler, 2008). Moreover, The Montevideo Convention on The Rights and Duties of States of 1933 laid down the four criteria that should be met if an entity is to be considered a state. At the heart of the criteria is a defined territory. Hence, since the 17th century, the concept of state and territory have evolved to become at the heart of international law. moreover, state and territory have become more closely associated. "The development of international law upon the basis of the exclusive authority of the state within an accepted territorial framework meant that territory became perhaps the fundamental concept of international law. Most nations indeed developed through a close relationship with the land they inhabited" (Shaw, 2008, p. 488). Hence, the notion of territorial integrity started to appear.
Territorial integrity, which was incorporated in the Charter of the United Nations has two meanings. On one hand, it protects existing borders and prevents nation-states from territorial acquisition, or from promoting secessionism. On the other hand, territorial integrity means equal sovereignty, and protects states from interference in internal affairs (Elden, 2009). Territorial integrity has since evolved to mean territorial preservation, meaning as long as the boundaries and the borders of the nation-states remain the same, intervention and interference is allowed. Territorial integrity is seen as stabilizing factor. It is based on the notion of Uti Possidetis, which means states would inherit the boundaries, or internal jurisdictions of colonies after their independence (Elden, 2009). Territorial changes are not allowed after the independence of colonies. Since international is based on the concept, and mainly developed by western/European states, territorial integrity has a higher legal value then the right or principle of self-determination.
Self-determination is the right or principle of nations (a group of people sharing a common language, history, culture and heritage) to choose their own density. Self-determination has both an internal and an external aspect. Internal self-determination is the right for authentic self-government, the right for a freely chosen political and economic regime, the right for democratic rule, and the right for a government responsive to the will of the population. External self-determination on the other hand means the right to independence as a people, the right to self-rule, the right to be free from colonialism, the right to form an autonomous state. Hence, what is the position of self-determination in international law, and does international law allow secessionism? "Self-determination is not only highly circumscribed in international law, but in almost most cases, territorial integrity can be asserted over and above it" (Elden, 2009, p. 143). Territorial integrity always wins out in struggle with other principles and norms of international law. A reason for this is territorial integrity's importance to any commonly conceived notion of statehood and its role in international law (Elden, 2009). For example, the Council of Europe's negotiations around minority rights, such as the Framework Convention for the Protection of National Minorities, stressed the notion of territorial integrity three times, stating that nothing in the current provision gives the right to engage in activities that is contrary to the fundamental principles of international law, sovereign equality, territorial integrity and political independence of states (Elden, 2009). In international law, self-determination applies to colonies, to non-sovereign territories rather than groups. Sub-state groups are not subjects of international law. Moreover, nothing in international law provides for secessionism, however, it does not explicitly prohibit it either. The Kosovo case concluded that territorial integrity applies between states and not between a state and its people. Hence, this topic enters the political realm. Since secession is not explicitly prohibited under international law, to support it or not is purely a political decision.
One cannot completely separate International law from international relations. International operates in political environment, and hence, is highly influenced by it. Secessionist tendencies, whether justified or not, are not welcomed. Secessionist movements are dismissed as terrorist movements. Secessions has been dubbed as being undemocratic. For example, Canadian politician Stephane Dion has said that there is a contradiction between secssion and democracy, which makes these two concepts hard to reconcile. One can understand the context in which Dion made his comments (taking into account the demands of Quebec). To counter Dion's claims, one should have a look at the Republic of Nagorno-Karabakh. Since its secssion from Azerbaijan, Karabakh has adopted a democratic system. The state has also a Human Rights Umbudsman, common to western democracies. Karabakh has an active civil soceiety, with NGOs operating in every field.
What has been overlooked is the questionable boundaries and borders that have been drawn in the colonies, especially in Africa, Asia, and the Middle East. Borders were drawn taking into consideration the differences in ethnicities and religions (This appears to be immoral, but politics has no moral basis. The colonial powers envisaged future conflicts in the colonies after their independence. They favoured certain groups over others, most of the times the minorities, envisaging future interferences and interventions in those states). Through the principle of Uti Possidetis, the borders of former colonies have remained the same, encompassing groups within it that have more differences then similarities. These have sometimes been the causes of violent conflicts, wars and even Genocides. The international community, including the United Nations, by continually stressing the importance of territorial preservation, is aggravating the existing problems rather than providing solutions for it. Concerning the United Nations, especially the Security Council, the organisation is increasingly becoming detached from the realities of the world, and its decisions increasingly "illegal". The composition of the Security Council has remained unchanged since the amendment of 1965, which increased the number of non-permanent members from six to ten. The permanent five continue to monopolize decision making in the world by using the veto power. One should consider the rationale behind giving France a permanent seat in the Council. France was occupied, and half of its population and the Vichy government collaborated with Nazi Germany.
International law is immoral and territorial. Territory, state, and stability are prioritized, while people, nations and their rights are marginalized. International Law has lost its moral authority to "rule". Sub-national groups without a state of their own don't have an arena to voice their concerns and demands. Hence, another remedy is sought, which is secession and self-determination. If nations can establish their link to a certain territory, and have been subject to atrocities and grievances, and they can establish that they totally differ ethnically from the rest of the composition of the state (For example, The Basque people, Abkhazia, Nagorno-Karabakh, The Irish of Northern-Ireland), they should have the right for secession and establishing their own state, where they can truly be in charge of their own destiny.
Elden, S. (2009). Terror and Territory: Special extent of sovereignity. Minnesota: University of Minnesota Press.
Kahler, M. (2008). The Misplaced Westphalian Moment: Mapping Modern Statehood. American Political Science Association.
Shaw, M. (2008). International Law. Cambridge: Cambridge Univeristy Press.
Shant Abou Cham holds an MA from UPEACE in International Law and Human Rights.