Responses to World Order (HSC SSCE Legal Studies): Revision Notes

Responses to World Order

The role of the nation-state and state sovereignty

Understanding state sovereignty

State sovereignty is the fundamental right of a nation-state to exercise complete legal authority over its territory and population. This power includes the ability to create all domestic laws and to enter into international treaties with other sovereign states. These treaties form the primary source of international law.

State sovereignty in the UN Charter

The principle of state sovereignty was embedded in the UN Charter through Article 2.7, which prohibits the UN from intervening in matters that fall within the domestic jurisdiction of any state. This protection reflects the respect for state autonomy that underpins the international system.

However, the final clause of Article 2.7 provides a crucial exception. It allows the UN Security Council (UNSC) to override state sovereignty using its Chapter VII powers when there is a threat to international peace and security. This creates a legal mechanism for the international community to intervene when:

• There is a threat to peace
• There is a breach of the peace
• An act of aggression has occurred

Challenges with humanitarian intervention

Humanitarian intervention refers to military intervention in a state to stop serious human suffering or human rights violations. While theoretically possible under the UN Charter, several practical obstacles exist:

The UNSC faces significant difficulties in authorising humanitarian intervention because reaching agreement among the Permanent Five members (France, UK, China, Russia, and USA) is extremely challenging. Any of these members can use their veto power to block action, particularly when their national interests are at stake.

Even when agreement is reached, the Permanent Five members are often reluctant to commit their own military forces to interventions, yet they typically possess the only military capabilities sufficient for effective action. Other member states are equally hesitant to risk their soldiers' lives in distant conflicts where their national interests are not directly threatened.

As a more realistic alternative to military intervention, the UN often deploys peacekeeping forces after fighting has ceased. This approach requires either minimal use of Chapter VII powers or none at all, making it easier to implement than full-scale humanitarian intervention.

The United Nations

Origins and purpose of the UN

In June 1945, representatives from 50 nations gathered in San Francisco following World War II, determined to prevent future global conflicts. They established the United Nations with a Charter beginning with powerful commitments to save future generations from war, reaffirm fundamental human rights, establish conditions for justice and international law, and promote social progress and better living standards.

Key achievements of the UN

Despite operating on a modest budget of less than $15 billion annually (about one-tenth of McDonald's global workforce costs), the UN has achieved remarkable outcomes:

The organisation has successfully promoted the universal concept of human rights, led numerous peacekeeping operations, and created a comprehensive body of international law. It has maintained dialogue between hostile states, kept all nation-states as members (even those at odds with the international community), and served as a forum for world opinion on critical issues.

Since the end of the Cold War, UN activities in conflict prevention and peace operations have contributed to a dramatic reduction in conflict deaths and politically motivated mass murders. While there have been notable failures (Rwanda, Somalia, Bosnia), the organisation has also achieved many successes.

The UN Charter

The UN Charter functions similarly to a constitution, outlining member states' rights and obligations. Article 1 identifies four main purposes:

• Maintaining international peace and security
• Developing friendly relations between states
• Cooperating to solve international problems of economic, social, cultural, and humanitarian nature
• Promoting respect for human rights

Article 2 establishes key principles including full sovereignty and equality of members, peaceful settlement of disputes, refraining from threats or use of force, and non-intervention in domestic matters.

The Security Council

The Security Council bears primary responsibility for maintaining international peace and security. It consists of 15 members: five permanent members (USA, France, UK, China, Russia) and ten non-permanent members elected by the General Assembly for two-year terms.

For the Security Council to take action, at least nine votes are required, including all five permanent members. If any permanent member disagrees with a proposal, they can exercise their veto power to halt any action. This veto can block substantive decisions, appointments of the Secretary-General, and amendments to the UN Charter.

Under Chapter VII of the UN Charter, the Security Council can implement enforcement measures including economic sanctions, arms embargoes, or collective military action. During the Cold War, the Security Council was largely paralysed by disagreements between permanent members. This changed in 1990 when the UNSC authorised a US-led military force against Iraq following its invasion of Kuwait, marking only the second use of Chapter VII powers in 43 years.

Peacekeeping operations

While 'peacekeeping' appears nowhere in the UN Charter, it has become a crucial UN function. The Charter's original plan involved a permanent military staff committee coordinating forces from member states to respond to aggression. However, the Cold War prevented implementation of this system.

The main distinction is that peacekeeping can proceed without unanimous Permanent Five support, and the entire peacekeeping apparatus has operated from the Secretary-General's department since 1956.

Future developments

Recognising that peacekeeping alone cannot address situations threatening peace and security, the UN established the Peace Building Commission (PBC) at the 2005 World Summit. The PBC extends assistance to countries emerging from conflict to prevent them from slipping back into violence. It acts as an advisory body to coordinate support and resources for reconstruction, institution-building, and sustainable development.

Various NGOs are also lobbying for a United Nations Emergency Peace Service (UNEPS) - a permanent force capable of responding to international crises within 48-72 hours rather than the months currently required for peacekeeping deployment. If established, UNEPS would combine military services, negotiators, and specialists to rebuild infrastructure in developing nations facing urgent issues. These full-time positions and faster response times could significantly reduce deaths in international crises.

International instruments

Treaties and their role

Treaties (also called conventions, charters, covenants, or statutes) are binding agreements voluntarily entered into by states. They place obligations on parties to act in particular ways or adopt certain behaviours as norms. States typically enter treaties because they perceive mutual benefits.

There are two main types:

• Bilateral treaties between two states (e.g., the 2004 Free Trade Agreement between Australia and the USA)
• Multilateral treaties between multiple states

Treaty registration requirements

Since 1945, Article 102 of the UN Charter has required all member states to register their treaties with the UN Secretariat for publication. This requirement originated from US President Woodrow Wilson's 'Fourteen Points' speech in January 1919, which called for openly arrived-at treaties.

Significant post-1945 treaties

The most important treaties for world order include the UN Charter, Universal Declaration of Human Rights (UDHR), Geneva Conventions, and Nuclear Non-Proliferation Treaty (NPT). These treaties have largely established the framework for international law.

Other significant treaties include:

• General Agreement on Tariffs and Trade (1947, updated 1994 creating the WTO)
• UN Convention on Prevention and Punishment of Genocide (1948)
• Geneva Conventions (1949)
• UN Convention Relating to Status of Refugees (1951) and Protocol (1967)
• International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights (1966)
• UN Convention on the Law of the Sea (1982)
• UN Convention Against Torture (1984)
• Rome Statute of the International Criminal Court (1998)

Jus cogens

Jus cogens (meaning 'compelling law') refers to legal norms accepted by the international community as binding on everyone, regardless of whether a particular leader or nation has agreed to them. These are also called peremptory norms.

Courts and tribunals

International Court of Justice

The International Court of Justice (ICJ) deals with disputes between states. Established in 1946 as a UN organ, the court is based in The Hague, Netherlands, with 15 judges elected by the UN. The court decides questions by majority vote, applying international conventions and customary law. It may refer to academic writings and previous decisions for interpretation, though it is not bound by precedent. If no clear conventions apply, the court may base decisions on 'justice and fairness' principles, provided both parties agree.

The ICJ hears two types of cases:

• Contentious issues between states - producing binding rulings between states that have agreed to be bound by the court's decisions
• Advisory opinions - providing reasoned but non-binding rulings on international law questions submitted by the UN General Assembly

International Criminal Court

The Rome Statute of the International Criminal Court was signed in 1998 by 121 states (including Australia), pledging to establish a permanent court for trying individuals for mass atrocity crimes such as war crimes and genocide. The statute came into effect in July 2002 after ratification by over 66 states.

The ICC was established at The Hague with jurisdiction over genocide, war crimes, and crimes against humanity committed since 2002 - the three most serious international crimes causing significant regional disorder.

By 2010, 110 states were ICC members (having signed and ratified the Rome Statute), while 41 states had signed but not ratified. Cases can be referred to the ICC by treaty parties, the Security Council, or the ICC Prosecutor.

Other international tribunals

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by UN Security Council resolution in 1993. It has jurisdiction over breaches of the Geneva Conventions and international customary law committed in former Yugoslavia since 1991.

The International Criminal Tribunal for Rwanda was established in 1994 based on the ICTY model. It has jurisdiction over acts of genocide committed by the Rwandan government and armed forces in 1994. The Hutu-majority government engaged in mass atrocity crimes against the minority Tutsi people following President Juvénal Habyarimana's assassination.

The European Court of Human Rights was first established by the Council of Europe in 1959 in Strasbourg, France. Reformed in 1998 as a permanent court directly accessible by individuals, it has jurisdiction over human rights issues arising under the European Convention on Human Rights. The Council of Europe comprises 47 member states across Europe, including all 27 EU members.

As states intensify competition for natural resources, tribunals managing these resources are growing in importance. The International Tribunal for the Law of the Sea, established under the UN Convention on the Law of the Sea, can address any sea-related issue such as seabed mining or overfishing. State parties must use either this tribunal or the ICJ to peacefully settle sea-related disputes.

Intergovernmental organisations

Understanding IGOs

Regional intergovernmental organisations (IGOs) are organised groups of two or more states established to pursue mutual interests in one or more areas. They increasingly contribute significantly to world order, though they vary enormously in economic power, effectiveness, cooperation levels, integration, future plans, and global impact.

Notable examples include:

• African Union - modelling itself on the EU with EU assistance for structural setup; currently has peacekeepers serving in Darfur under UN mandate
• Commonwealth - comprising former British Empire members; took strong stands against South Africa's apartheid and Fiji's post-2006 dictatorship (Fiji was suspended in 2009 for refusing to hold 2010 elections)
• ASEAN (Association of Southeast Asian Nations) - has the most influence encouraging Myanmar/Burma's military dictatorship to stop systematic human rights violations

European Union

The European Union (EU) stands out as the most successful and influential regional IGO because it has created unprecedented wealth and security for members and revitalised European influence globally. It has made war between any of its 27 members unthinkable. Many states seek EU admission, and other regional organisations (including the African Union) emulate it.

A European federation of democratic states to end war in Europe was envisioned after World War I. Despite these hopes, it took another world war and political commitment from individuals like Jean Monnet (credited as the EU's 'father') to bring the federation into existence.

The EU officially began in 1992 after gradual development from its 1950 origin as the European Coal and Steel Community with six countries: Belgium, Germany, France, Italy, Luxembourg, and the Netherlands. Under the Coal and Steel Treaty, member states agreed to common management of those industries so none could make weapons of war against the others. As it evolved, economic and political goals coexisted.

As of March 2010, there were 27 member states with three more awaiting approval. The EU has strict membership criteria, adheres to the UN Charter regarding force use, and requires members to be democracies upholding the rule of law and respecting human rights. It has a Charter of Fundamental Rights and a Fundamental Rights Agency advising policymakers and raising public awareness.

Member states work together developing common solutions for immigration and asylum to manage applications from people escaping war, persecution, natural disasters, or poverty. They also cooperate fighting organised crime (drug and people trafficking, money laundering, terrorism) through legislation and police powers. Europol, the European Law Enforcement Agency, coordinates various nations' police efforts.

North Atlantic Treaty Organization

The North Atlantic Treaty Organization (NATO) was established in 1949 to counter the USSR-led communist bloc threat. It is an alliance of 28 countries from North America and Europe with the mission of safeguarding members through political but also military means. It provides a forum for European countries, Canada, and the USA to discuss and address security issues of common concern.

NATO military forces have helped end conflicts in Kosovo and Bosnia. The organisation provided transport and training for the African Union's peacekeeping mission in Darfur, Sudan. Currently, NATO has forces deployed in Afghanistan supporting the fledgling democratic government. NATO's International Security Assistance Force (ISAF) in Afghanistan operates under UN Security Council authority, though it is not a UN body.

Non-government organisations

Understanding NGOs

Groups such as Amnesty International, Human Rights Watch, World Vision, Greenpeace, and Oxfam are among tens of thousands of organisations known as private voluntary organisations, citizen associations, civil society organisations, or most commonly, non-government organisations (NGOs) - associations based on common interests and goals with no government connection.

One of the first NGOs was the Red Cross (known by various names in different countries, such as the Red Crescent or American Red Cross). Its main activities are providing humanitarian aid to war and natural disaster victims and championing international humanitarian law.

The International Crisis Group

Beyond humanitarian NGOs, some specialise in world order issues through investigating, researching, educating policymakers and the public, and lobbying leaders to take action. The International Crisis Group (ICG) was founded in 1995 by retired international leaders responding to the international community's failure to anticipate and respond effectively to genocides in Somalia, Rwanda, and Bosnia in the early 1990s.

With a budget around $16 billion annually, the ICG monitors 60 conflicts and potential conflict situations. The ICG aims to be an accurate information source for governments, IGOs, and NGOs working to respond directly to conflict situations. It also uses media effectively, receiving 14,000 annual mentions. Gareth Evans, former Australian Foreign Minister in the Hawke and Keating governments, served as ICG president from 2000 to 2009.

The ICG sees its role as:

• Supplying behind-the-scenes support and advice in peace negotiations
• Giving highly detailed policy issue analysis
• Offering strategic thinking on the world's most intractable conflicts (Myanmar/Burma, Iraq, Israel/Palestine)
• Providing early warning when security situations become full crises, maintaining constant alert in areas like Darfur, Somalia, Pakistan, and Timor-Leste (still in fragile nation-building stage after initial 1999 UN intervention)

Australia's federal government

The Australian Constitution and international law

The structure of Australia's federal government significantly impacts Australia's responses to world order issues. Under section 51(xxix) of the Australian Constitution, only the federal parliament has power to make laws relating to 'external affairs' - matters of international concern. Consequently, only the federal government can enter into international treaties and agreements.

The states and international law

Any international agreements entered by the federal government can affect states in some way. The federal government usually consults states before signing international agreements but is not obliged to do so. Sometimes international agreements become points of contention between states and federal government.

States cannot enter international agreements independently. However, they can enact their own legislation harmonising with international agreements. For instance, the NSW Government went further in adhering to UN human rights treaties with its Anti-Discrimination Act 1977 (NSW) than the federal government did with the Racial Discrimination Act 1975 (Cth).

Australia's role in global affairs

Since federation in 1901, Australia has taken global responsibilities seriously. Australia's massive World War I contribution stemmed from obligations to maintain the British Empire, viewed as essential to global stability, civilisation's spread, and the rule of law. From 1907 to 1914, Australia was a dominion of the British Empire - a political entity nominally under British sovereignty but independent in all matters except foreign policy.

Australia's World War I contribution won recognition as a nation-state in the League of Nations, alongside other dominions (Canada, New Zealand, South Africa). As a foundation League member, Australia played a very active international role. Many Australian proposals were adopted by the United Nations upon its formation.

Australian involvement in the UN

Numerous Australians have served Australia with distinction internationally. Jessie Street attended League of Nations Assemblies in Geneva in 1930 and 1938. Street was the only woman in the Australian delegation to the 1945 San Francisco conference writing the UN Charter, and one of only four women delegates worldwide.

Many other Australians have served the UN with distinction. From 1997 to 1999, Australian Richard Butler was one of the most powerful and controversial figures in world politics as head of the UN Special Commission (UNSCOM) monitoring Iraq's weapons facilities dismantling after the 1990-91 Gulf War. Butler was also involved in the 1996 Canberra Commission on the Elimination of Nuclear Weapons, initiated to formulate a plan for nuclear weapons reduction and eventual elimination.

Gareth Evans, Foreign Minister in the Hawke and Keating governments, has been actively involved in the UN in nuclear disarmament and the new 'Responsibility to Protect' doctrine. In March 2008, the former Rudd government embarked on a campaign for Australia to be a candidate for a non-permanent Security Council seat in 2013-14. From 2009, then Prime Minister Rudd took a leading role in UN-sponsored debate on global warming and at the December 2009 Copenhagen Conference.

Australia's contribution to peacekeeping

Australia has consistently taken world order maintenance responsibilities seriously, evidenced by its involvement in UN peacekeeping missions. Australia has contributed either military forces or police to 54 peacekeeping forces, two-thirds since 1991.

Australia has also engaged in peacekeeping efforts internationally outside the UN. In recent years, Australia has conducted a peacekeeping operation in the Solomon Islands and committed federal police to many peacekeeping operations worldwide.

Australia and international agreements

Australia has been part of many other international agreements promoting world order. Australia is a signatory to the Geneva Conventions and the Rome Statute establishing the International Criminal Court.

Australia has undertaken many international obligations outside multilateral agreements. The majority of the 900 treaties and agreements Australia has signed are bilateral. Additionally, most of the $1 billion in Australian aid for 2004 Boxing Day tsunami victims was given as bilateral aid partnerships with Indonesia and Sri Lanka, rather than channelled through multilateral organisations. This reflected the Howard government's preference for bilateral rather than multilateral agreements. After its election at the end of 2007, the former Rudd government expressed preference for multilateral agreements.

The media

Media influence on world order

The media have enormous influence on world order, and that influence can be positive or negative. A free and unbiased media are essential ingredients for the rule of law in the global sphere.

Regardless of media ownership and control, today's media have tremendous effects on how we view major events. One characteristic of modern media is the tendency to treat news as entertainment. This means there is often little effort to provide full and considered explanations of major problems and issues' backgrounds. Consequently, while people know of events taking place worldwide, they often lack real understanding of issues. This is particularly true regarding war.

Non-legal mechanisms for international dispute resolution

Political negotiation

Political negotiation is the simplest and most frequently used means of working with other states and resolving disputes. Communication between states now occurs at many government levels, and each country has vast arrays of experts who can negotiate international agreement details. These changes in available means for political negotiation have increased scope for greater cooperation. When disputes cannot be solved through political negotiation, the next option is persuasion.

Persuasion

States, international organisations, and transnational corporations can be persuaded to change behaviour through world public opinion pressure. Persuasion, in the form of naming and shaming, is one of the main ways NGOs achieve objectives. The UN can also use this tactic through reports it delivers on various issues and deliberations of its human rights bodies. In recent years, Zimbabwe's government has been widely criticised for its mass atrocity crimes.

States can also be encouraged to improve behaviour by the prospect of world organisation membership. For instance, China had to raise trade standards to comply with World Trade Organization rules (e.g., applying same tariff rates to all member countries, applying internal laws equally to domestic and imported products).

Force

When political negotiations break down and persuasion and soft power have no impact, resort to force may occur.

The idea that force or threat of force should not be the norm in international relations is enshrined in the UN Charter. Article 2(4) states:

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other matter inconsistent with the Purpose of the United Nations.

However, the UN Charter's architects were realistic enough to recognise that force would sometimes be used, so they created a legal framework for it. Article 51 states that force can be used in self-defence.

Besides providing a self-defence clause, the UN Charter was realistic enough to legitimise force use in circumstances other than self-defence. However, the constraint placed upon this force use was that it had to be agreed to by the Security Council. Article 42 states that the UN Security Council can 'take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security'.

Multilateral action

In 1998, the threat of veto use by two Permanent Five members was enough to stop the Security Council from intervening in the genocide taking place in Kosovo. Kosovo is a Serbian nation-state province with a majority Muslim population. In 1998, the Serbian government, under Slobodan Milošević's leadership, began engaging in ethnic cleansing (a euphemism for genocide) against Kosovo's Muslim population.

However, the prospect of a humanitarian disaster prompted by Serbian forces' genocidal acts caused great concern in Europe and the United States. As a result, in March 1999, NATO successfully intervened in Kosovo. The Security Council, minus China (which abstained), then called for an international civil and security presence in Kosovo, thus retrospectively ratifying the NATO intervention in Kosovo and lending it greater legitimacy.

The NATO action in Kosovo raises the question of what circumstances make force use legal under international law. Was the NATO action legal under international law before it was retrospectively sanctioned by the Security Council? International law scholars would answer that the original NATO action in Kosovo was legal because it was carried out by a multilateral force - NATO.

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