" Under international law "

" Under international law " ...

7 May 2014 - 7 Iyyar 5774Categories: Israeli-Palestinian Conflict, Middle Eastby Marcelo WioSource : revistamo.org


international - criminal - court
" A thing is not just for the fact that law. It should be law that is just, " Montesquieu (1689-1755) French writer and politician .
Law means the " body of law created by the state to regulate the external behavior of men and , in case of default is expected of a judicial sanction."
International law , therefore, must be one " set of rules governing the behavior of states ."
The latter - "international law" - apparently the media regularly refer to as the so-called " settlements " Jews - people, Jews in the disputed territories neighborhoods - to label them as "illegal " but they do not like reference to a set of rules and agreements, but rather as an abstraction, as a definition that has strength of conviction , but is unable to explain the arguments of his sentence.
If they did , referring to precise rules , there would be no reason not to mention it or mention.
Precisely, the Foreign Minister of Australia , Julie Bishop, said ( 01.13.2014 ), during his recent visit to Israel, the international community should refrain from naming the settlements illegal under international law , without waiting for his situation is determined in an agreement with the Palestinians. He added:
"I like to see what international law has declared illegal ."
But journalists are content to repeat .
(For a detailed explanation of the arguments - and their counterarguments - put forward by some governments and international organizations to stigmatize illegal "settlements " Israelis, see the journal article , the " international law" ( always ) drew Israel)

    The Spanish agency EFE ( 04/28/14 ) :

    " The paper added that the Palestinian leadership , through the PLO , the sole legitimate representative of the Palestinian people, also ask the UN General Assembly and the Security Council condemn Israeli settlements , illegal under international elderecho " .

    The Spanish news agency Europa Press ( 03/03/14 ) :

    " Obama has repeatedly criticized the construction of Israeli settlements in territories claimed by the Palestinians. In addition , these constructs are considered illegal under international law . "

    Terra Argentina ( 04/11/14 ) :

    " During that period , about 3,000 registered participants will pass through Jewish colonies , whose construction is illegal according to international law, and the separation wall built by the Israeli Army."
The "international law" thus becomes a tool of attack, defamation ; emptied of its goal of regulating relations between States and international organizations .
But , far from being something entirely consensual and static , international law abounds in disagreements. In addition to the "rules" of the right are not , by any means, nor applied uniformly imposed , while there is a global force that enforces these regulations . So , it is very difficult to pretend compare national law , which is applied and enforced by judicial bodies and the security forces of each country within its jurisdiction.
All that is solid melts into air ... and even if it is solid ...
Rosalyn Higgins, former judge and president of the International Court of Justice ( Problems & Process : International Law and How We Use it) argues that " assert a core or fast rules that remain constant regardless of the attitude of the states is the instead , insist on one's values ​​(instead of internationally shared values ​​) . "
On the other hand , proposes that international law , rather than a set of rules, is a dynamic process where qualified judges take into account international laws the present context , the opinion of renowned jurists and the desired result. Higgins speaks mainly a process of decision-making rather than a legislative process, which is the idea provided - to offer nothing more than the mention of the word "right" - the media .
The journalists, information professionals should perhaps learn before trying to inform the public.
To start , they could refer to the Report of the International Law Commission of the UN, in its 65th session ( May-August 2013 ), which explains ( Chapter VII , Training and documentation of customary international law ) that the Special Rapporteur was fully aware of the complexities involved in this issue and the need to approach it with caution "in order to , in particular , to preserve the flexibility of customary process (which is usual, usual )"; and the Special Rapporteur proposed that the Commission should focus on the development of conclusions , " on identifying the rules of customary international law."
This means that in 2013 sessions of the Committee on International Law , it was proposing draw a conclusion on the identification, recognition of the rules of customary international law. But would not it be reasonable to expect that these rules would be very clear on the case of what is usual ? The media seems to think so ; or , at least , seem to want his readers into believing that it is.
The report , in turn , indicates that :
" ... The work he intended to carry out the Commission include , however , an examination of the requirements for the formation of rules of customary international law , as well as documentation material such rules, both tasks required to determine whether there was a rule of customary international law.
[ ... ]
With regard to customary international law as a source of international law , the Special Rapporteur was first referred to Article 38, paragraph 1 , of the Statute of the International Court of Justice as authoritative statement of the sources of international law. The Special Rapporteur addressed after the relationship between customary international law and other sources of international law. While noting that his relationship with treaties was an aspect of great practical importance , also noted that it was a relatively known issue . Less obvious , in his view , was the relationship between customary international law and general principles of law , which required careful consideration by the Commission.
[ ... ]
After an initial review of certain materials from the State practice and jurisprudence of the International Court of Justice and other judicial and non-judicial tribunals , the Special Rapporteur noted at the outset that , although there were some inconsistencies , virtually all the examined materials emphasized that both state practice as juris ( legal duty ) opinio were necessary for the formation of a rule of customary international law. "
The International Law Commission , neither more nor less , work deemed necessary to determine whether there was a rule of customary international law.
But if there is not customary , usual, usual , how international law is built ? ? With ad hoc rules , ie , as the case ? Who or who legislate ? Plus, if there is no global consensus and forces to enforce those rules , what kind of laws are these ? Some that must meet some but not others?
In summarizing the discussion, the report notes :
"There was general agreement that the work of the Commission conveniently could shed some light on the process of identifying the rules of customary international law. Broad support for the proposal to develop a series of findings with review, practical results that would guide lawyers and judges who were not experts in public international law said. It was stressed that customary international law remained highly relevant despite the proliferation of treaties and encoding in various areas of international law.
At the same time , the general view was that the Commission 's work on this topic should not be overly prescriptive , as the flexibility of customary process remained fundamental. In this regard , it is also stressed that the formation of customary international law was a continuous process, not stopping when there was a standard.
[ ... ]
Several members mentioned the inherent complexity and difficulty of the subject . He said that the ambiguities in determining customary international law had led to legal uncertainty and instability , as well as opportunistic or bad faith on the existence of a rule of customary international law arguments. Therefore, given the task of clarifying the process by which a norm of customary international law was determined was received with general satisfaction .
[ ... ]
Some members pointed out ... it was not always possible to distinguish between the general principles of international law and customary international law. A similar observation about the general principles of law and customary international law " was made .
Again, among the experts attempt to shed light on " on the process of identifying the rules of customary international law " while stating that " ambiguities in determination of customary international law had led to uncertainty and legal instability , as well as opportunistic or bad faith on the existence of a rule of customary international law " arguments ; but the means , the knowledge in a previous wisdom , knows what is and is not part of the "international law" ; and when it may or may not invoke this "right" .
The idea that emerges behind these " ambiguities " that need to " shed light " "to determine whether there was a rule of customary international law," is a set of rules ( that may not be such , as should be determine , according to the report , its existence ) which is not far from the consensus of the entire set of nations.
To give that feeling of agreement, the media tend to rely on what I can say the European Union ( an organization or political community, not legal , and whose rules are limited to the territory of the states that compose it, but not above their own national ) laws and the UN ( the General Assembly). What continues to be a mere opinion .
On this latter organism, the jurist Julius Stone referred (Israel and Palestine: Assault on the Law of Nations ) that former judge of the International Court of Justice , Sir Gerald Fitzmaurice, explained that the general structure of the Charter limits the General Assembly (unlike the Security Council) to merely recommendatory functions.
Fitzmaurice argued that :
"... It is precisely this limitation which explains that UN members are often prepared to allow the GA adopted resolutions , for example , abstaining instead of voting against . "
That is, the resolutions of the General Assembly are not binding ( not subject to obligation) and therefore not part of what is commonly called "international law" , for the simple fact that they are not rules, laws , since they can not send or preceptuar .
With regard to the Security Council , the Higgins own notes ( Problems & Process : International Law and How We Use it) that :
" ... It is desirable that the Security Council play a role in defending international law, and invoke international law is an important element in the implementation . But ... when determinations are intended to rule with authority on international law ... it is important to be made ​​carefully , with proper legal advice with an understanding of the issues and not just as a casual description almost made ​​for political purposes . It has been observed that call a 'illegal' government in the same way that it is called ' racist ' adjectivally involves using the term , but not seriously . Still, it is said that serious legal consequences flow ... [ In this regard, it should be noted that ] there is not much evidence in the debates that [ indicate that ] the Security Council has reached its determinations through careful legal analysis. "
Although Israel is involved, and the temptation to point it out as an evil to be tempting , they come back to the exercise of such journalists ever ? Or were comfortably installed in an explicit bias ?
Meanwhile, what international laws are being respected in Syria right now?
The question is worded positively as it has no major convictions and , much less , reprisals against those who threaten the lives of civilians, for example.
Then , with reference to the Syrian civil war (also , since the annexation of Crimea by Russia . ) , Voluntary or involuntary lack of international response to the killings , what is the "international law" ? Or rather , is it something homogeneous application?
Another of the problems that are evident in international law is the emergence of new standards and the identification of crimes therein. A paradigmatic case is that of terrorism, which does not even have an agreed definition worldwide.
It is clear that most national laws encoding terrorism as a crime. More in the latest revision of the Statute of the International Criminal Court was agreed to include the crime of aggression as part of the jurisdiction of that court , while terrorism, by the refusal of the delegations of some countries was outside their jurisdiction .
This, despite the fact that , according to ( International Criminal Law and Terrorism : International Law crime ? ) Professor of International Law and International Criminal Law at the University of Rosario ( Colombia ), Andrea Mateus - Rugeles ; and Juan Ramón Martínez- Vargas , Professor of International Law in the house of higher learning , international criminal law recognizes terrorism as a crime under international law. Even , he explained, the ad hoc criminal courts of the Security Council , have treated terrorism as a crime under international law :
" The International Criminal Tribunal for Rwanda , enshrined in its Statute the ' terrorism ' as a crime under Article 4 which provides the serious violations of Article 3 common to the Geneva Conventions of 1949 and Additional Protocol II to those Conventions " .
Thus , international law seems , at least in certain respects , subject to political and ideological interests of national governments , and political circumstances : more a tool of diplomatic pragmatism (and as a weapon of international politics ) that the law; an ad hoc instrument , implying an inequality to the rule, which applies only to some, while others are outside its competence.
As recently in the Russian and Syrian cases - - they do not lose value , consistency, weight regulator Moreover, what if no rules of international law are respected ? I mean, is not longer than usual, the customary ?
But the Spanish press has been simplified and summarized to a single puzzle piece, a unique language training that does not require reasons: "international law " as well , is a conceptualization of nowhere exerted pointer to point to Israel ; In short , the argument without content to delegitimize and demonize the Jewish state of false consensus.