http://kuklawnotes.blogspot.de/p/internati http://kuklawnotes.blogspot.d e/p/international-law_72.ht onal-law_72.html ml 2. Int Intern ernati ationa onall La Law w is th thee van vanish ishing ing poi point nt of Jur Jurisp isprud ruden ene. e. !"plain. I#$%&'()$I&#:- *olland has remarked that International Law is the vanishing point of jurisprudence in his view , rules of international law are followed by courtesy and hence they should not be kept in the category of law. The international Law is not enacted by a sovereign King Ki ng.. It ha hass al also so no sa sanc ncti tion onss fo forr it itss en enfo forc rcem emen entt wh whic ich h is th thee esse es sent ntiial el elem emen entt of mun uniici cipa pall law aw.. Hol olllan and d fur urtthe herr sa say y tha hatt International Law ass the vanishing point of urisprudence because in his view there is no judge or arbiter to decide International disputes and that the rules of the I. Law are followed by !tates by courtesy. +ustin also subscribes to this view, Jus Justi tiee ,.%. %.ris rishna hna Ierformally member of Indian Law "ommission has also remarked, #It is a sad truism that international law is still the vanishing point of jurisprudence. This view is not correct. It is now generally agreed that Holland$s view that international law is the vanishing point of urisprudene is is not orret. %ut now it is is well settled that that International International Law is law. law. It is true that that International Law is not enacted by sovereign and has no agency for its enforcem enforcement. ent. %ut it is true true that it is is a weak law. law. & major majority ity of Inte In tern rnat atio iona nall la lawy wyer erss no nott su subs bscr crib ibee to th this is vi view ew is ba base sed d on th thee proposition that there are no sanctions behind international Law are much mu ch we weak aker er th than an th thei eirr co coun unte terp rpar arts ts in th thee mu muni nici cipa pall la law w, ye yett it cannot be successfully contended that there are no sanctions at all behind international international law. The jurists who do'not consider international law as the vanishing point of jurisprudence say that there is differ difference ence between state law and Internation International al Law. Inte Internati rnational onal Law cannot be enacted by the state but still there is agency for its enforcement. +ording to 'ias, #International Law is obeyed and complied with by the states because it is in the interests of states themselves.( 0or this obet the give the following arguments:). Th Thee ju judg dgem emen ents ts of In Inte tern rnat atio iona nall co cour urtt of u ust stic icee ar aree bi bind ndin ing g on !tates.
*. If any state does not honour the order+judgement of International court of justice, the !ecurity "ouncil may give its recommendation against that state for action. . The judicial powers of International "ourt of justice -oluntarily and compulsory/ have been accepted by the !tates. 0. The judgement of International court of ustice has been followed till date. 1. The system of enforcement i.e. sanctions and fear, has been developed. 0or e"ample :- If there is a threat to international peace and security, under chapter II of the 2.3. "harter, the security council can take necessary action to maintain or restore international peace and security. %esides this the decisions of the International "ourt of ustice are final and binding upon the parties to a dispute. $he gulf war 11 Ira3 trespassed and ac4uired the whole territory of 5uait in her possession by violation of International Law. The !ecurity "ouncil passed a resolution against Ira4 and asked her to liberate 5uait. %ut Ira4 did not honour the resolution of !ecurity "ouncil6 hence therefore may economic and political restrictions were composed against Ira4. %ut all in vain. Then 2!& and her allies were permitted to compel Ira4 to honour resolution of !ecurity "ouncil. "onse4uently 2!& and her allies used force against Ira4 and freed 5uait. The same action was taken against 3orth Korea and "ango during the year l708 and )79). The !ecurity "ouncil imposed penalty against Libya for shooting down &merican :lane in Lockerbie -!cotland/ in )77*, conse4uently two citi;ens were also killed. The !ecurity "ouncil forced Libyan
Thus International Law is in fact a body of rules and principles which are considered to be binding by the members of International "ommunity in their intercourse with other. The legal character of International Law has also been recogni;ed in )7>? @eclaration on the :rinciple of International Law "oncerning Ariendly relation and "ooperation among states. )onlusionB' Cn the basis of above discussion it may be concluded that the International Law is in fact law and it is wrong to say that it the vanishing point of urisprudence. httpB++thecompanion.in+ga;a'strip'the'vanishing'point'of' international'law+
Gaza Strip – The Vanishing Point of International Law If we start with famous jurist Thomas Erskine Holland’s remark, “International Law is the vanishing point of Jurisprudence, the title of this article is no surprise! "hen #nited $tates attacked Ira% on the guise of neutrali&ing "eapons of 'ass (estruction )"'(*, invaded +fghanistan in search of in Laden, attacked civilians in the $wat valle- of .akistan with their drones , when $ri Lankan government commits genocide against its own Tamil population, whenever Israel attacks the .alestinians, whether it /e 0peration 1ast Lead, 0peration .illar of (efense or now, the 0peration .rotective Edge, the common man asks certain common %uestions, "here is International Law2 "hat is #nited 3ations doing2 "here are the Human 4ights odies2 1oming /ack to the Holland’s view that International Law cannot /e called Law, as it does not have a sovereign authorit- to enforce or it lacks sanctions, it is at least, not applica/le in the case of maintaining international peace and securit- as the #nited 3ations 1harter has given the powers to the $ecurit1ouncil to take actions under 1hapter 5! ut one of the striking features of International Law is its consensual nature! #nlike municipal law, it depends on the consent of those states that are governed /- it! ut the role of consent, and the e6tent to which it is applica/le, remains unclear! The hierarchical structure of the $ecurit- 1ouncil and the alliance of #$ with the 7ionist
aspirations of Israel together make the International Law vanishing, when it comes to .alestine!
Israel had been condemned in 45 resolutions by the subsidiary organ of UNGA, United Nations Human Rights Council since its creation in 2!" #he Council had resol$ed almost more resolutions condemning Israel than on the rest of the %orld combined" In the case of #nited 3ations $ecurit- 1ouncil, the consent has to /e given /the permanent mem/ers 8 #$, #9, 4ussia, 1hina and :rance! #nder +rticle ;5 of the #3 1harter, $ecurit- 1ouncil decisions on all su/stantive matters re%uire the affirmative votes of nine mem/ers! ut a negative vote or “veto /a permanent mem/er prevents adoption of a proposal, even if it has received the re%uired votes! eing one of the major allies of Israel, #$ has consistentlopposed #3 intervention to end the occupation in .alestine< #$ has vetoed more than => #3 $ecurit- 1ouncil resolutions critical of Israel’s policies on .alestine! #3$1 has adopted more than ;;? resolutions relating to the Israel@ .alestine 1onflict from AB=C to ;>A=! Though the 1ouncil determined that a threat to peace e6isted within the meaning of +rticle DB of the 1harter and the 1ouncil also keeps on reiterating the need for a truce, and orders cease@fire pursuant of +rticle => of the 1harter under various resolutions, it never took actions like economic sanctions under +rticle =A or militar- action under +rticle =;! The #nited 3ations eneral +ssem/l-, the main deli/erative organ of the #nited 3ations, composed of representatives of all 'em/er $tates, which granted F3on mem/er o/server state’ status to .alestine recentl- on ;Bth 3ovem/er ;>A; was alwa-s in the forefront of protecting the rights of the .alestinian people! The #3+ has come up with numerous resolutions supporting the .alestinians! The resolution D;DG in AB5= recogni&es the right of the .alestinian people to regain its rights, including the right to self@ determination and the right of return! - resolution D;=G in AB5=, it affirms the legitimac- of armed resistance /- oppressed people in pursuit of the right to self@determination, and condemns governments which do not support that right! Israel had /een condemned in =? resolutions /- the su/sidiar- organ of #3+, #nited 3ations Human 4ights 1ouncil since its creation in ;>>G! The 1ouncil had resolved almost more resolutions condemning Israel than on the rest of the world com/ined! The =? resolutions comprised almost half )=?!B* of all countr-@specific resolutions passed /- the 1ouncil! ut the structure of the #3 1harter does not confer #3+ the power to initiate actions against the violation of the #3+ resolutions /- the mem/er states! The resolutions are recommendator- in nature under +rticle AA of the 1harter! ut pursuant to its “#niting for .eace resolution )4esolution D55 )** of 3ovem/er AB?>, the
eneral +ssem/l- ma- also take action if the $ecurit- 1ouncil fails to act, owing to the negative vote of a .ermanent 'em/er, in a case where there appears to /e a threat to or /reach of the peace, or act of aggression! The +ssem/l- can consider the matter immediatel- with a view of making recommendations to 'em/ers for collective measures to maintain or restore international peace and securit-! The #niting for .eace resolution was initiated /- the #nited $tates, and su/mitted /- the “Joint
[email protected] in 0cto/er AB?>, as a means of circumventing $oviet vetoes during the course of the 9orean "ar! ut, this resolution was never emplo-ed /- the #3+ which clearl- assert the power /alances in the #3 mechanism! Human Rights in Gaza and the Right to Return :or .alestinians, violations of human rights are a da- to da- realit-! The large scale operations /- the Israel onl- add to their miseries, or the world communit- gets interests in the .alestinian issue when there is a large scale attack, thanks to the sensational coverage of the war /- different media enterprises! .alestine is an occupied territor- and the large scale migration happened /ecause of the atrocities of the Israel! The denial of their right to return is the major human right violation, which the- face! The ke- /asis for the right of return is derived from the individual’s nationalit-! The individual’s possession of .alestinian nationalit- prior to A=th 'a- AB=C, i!e! /efore the esta/lishment of Israel, constitutes the first /asis for the right of return! #nder the International Law of $uccession, individuals /elonging to a former $tate have ipso facto ac%uired the nationalit- of the succeeding $tate! This is included in the most of the modern da- treaties! +rticle A=);* of the International Law 1ommission (raft +rticles on 3ationalit- of 3atural .ersons in relation to the $uccession of $tates stated F+ $tate concerned shall take all necessar- measures to allow persons concerned who, /ecause of events connected with the succession of $tates, were forced to leave their ha/itual residence on its territor- to return thereto!’ +rticle AD);* the #niversal (eclaration of Human 4ights, +rticle A;)=* of the International 1ovenant on 1ivil and .olitical 4ights, +rticle =B)A* of the eneva 1onvention I, various provisions of the 4efugee Law 1onvention affirms the right to return of the .alestinians! Legal Status of Gaza and the Intersection of Humanitarian Law and Human Rights Law The legal status of a&a strip is a matter of %uestion in International Law ever since Israel declared the disengagement plan in a&a in ;>>?! The simulated efforts to disengage from a&a /- Israel /efore the world were a clever tactic on two fronts! The first one is to show the world that Israel is no more an occup-ing power in a&a, /- which, avoiding the additional legal o/ligations under International Humanitarian Law, as an occup-ing power! The legal o/ligations of states in conflict are much lesser than the o/ligations of
occupants in the occupied territories under :ourth eneva 1onvention! :or e6ample, in case of food suppl-, the states engaged in armed conflict have the o/ligation onl- to allow a free passage of all consignments of medical and hospital storesK )+rticle ;D* whereas the occup-ing power has the dut- of ensuring the food and medical supplies of the population, that too, to the fullest e6tent of the means availa/le to it )+rticle ??*! The second one is to portra- the armed resistance on the part of people who fight for their right to self determination as acts of aggression and there/claiming a legitimate right to self defence! It is difficult to den- its status as an occup-ing power factuall- as this is the same $tate that has occupied a territor- for over fort- -ears and which e6ercises control over the means )food, fuel and electricit-* of providing for the local population, as well as the a/ilit- of an- e6isting authorit- to do so effectivel-! $u/stantial control of a&a’s si6 land crossings, control through militar- incursions, rocket attacks and sonic /ooms, complete control of a&a’s airspace and territorial waters etc!, are evidences for the effective control of the a&a /- Israel!
#he second one is to &ortray the armed resistance on the &art of &eo&le %ho fight for their right to self determination as acts of aggression and thereby claiming a legitimate right to self defence" "hile considering the application of International Human 4ights Law, the principle of human rights regime also applies in addition to humanitarian law in the regulation of international armed conflict! This was affirmed /- the International 1ourt of Justice in the famous case of Legality of the Threat or Use of Nuclear Weapons. The 1ourt has reaffirmed the parallel application of human rights law during armed conflict, including in cases where it specificallheld human rights conventions to /ind $tates’ .arties acting as occup-ing powers e6traterritoriall- in I1J +dvisor- 0pinion on the Legal 1onse%uences of the 1onstruction of a "all in the 0ccupied .alestinian Territories! Hence, Israel is committing grave violations of human rights as well as humanitarian law! Though the #nited 3ations Human 4ights 1ouncil )#3H41* has agreed to launch an international in%uir- into violations that ma- have /een committed during Israel’s latest militar- offensive in a&a )0peration .rotective Edge*, Israel has made it clear that, it will not co@operate with the in%uir-! $imilar position was taken /- Israel rejecting the oldstone investigation report into its 0peration 1ast Lead offensive of ;>>C@>B, which killed a/out A,=>> .alestinians in the a&a $trip, sa-ing that it is prejudiced and full of errors, and dismissed the charge that it had a polic- of deli/eratel- targeting civilians! Palestine’s on!"em#er $#ser%er Status and $peration Protecti%e &dge
"hile discussing a/out the different legal issues surrounding Israel’s occupation in a&a, the human rights and humanitarian law violations and the international in%uir- into the violations, the real major reason that prompted Israel to attack has to /e discussed! 'ore than disarming the Hamas or destro-ing the infrastructure of a&a, the granting of non@mem/er 0/server status to .alestinian Territor- has irked the Israeli authorities to launch an attack, as a punishment for demanding the statehood! The $tatehood for .alestine has dangerous legal conse%uences for Israel with respect to its criminal responsi/ilit- for the crimes committed /- the Israeli officials and soldiers in .alestine! "a- /ack in ;>>B, .alestinian 3ational +uthorit- lodged a declaration recogni&ing the jurisdiction of the International 1riminal 1ourt )I11* Ffor the purpose of identif-ing, prosecuting and judging the authors and accomplices of acts committed on the territor- of .alestine since Ast Jul;>>;!’ 0n Drd +pril ;>A;, the I11 0ffice of the .rosecutor concluded that the preconditions to the e6ercise of jurisdiction were not met, arguing that .alestine had onl- /een granted Fo/server’, not F3on@mem/er $tate’ status /eneral +ssem/l-! ut now, as we have discussed earlier, on ;Bth 3ovem/er ;>A; the #3+ accorded .alestine non@mem/er o/server $tate status! The opinion that .alestine is now a $tate is not just a juristic opinion, /ut accepted under states’ treat- practice! The receiving of $tatehood will f acilitate .3+ to approach the I11 for seeking investigation into the different war crimes, crimes against humanit- and genocide committed in the territor- of .alestine! Though there are various o/stacles relating to gravit- of the offences, admissi/ilit- etc!, in the reali&ation of the investigation and su/se%uent prosecution, the new legal status of .alestine has offended the 7ionists! "hile in ;>AA, when #3E$10 voted to admit .alestine into the organi&ation as a newest mem/er, #nited $tates responded /- cutting of the funds to the agenc-, this time, on the da- prior to the voting in eneral +ssem/l- for the non@mem/er state status! #nited $tates introduced legislations to cut the funding /- #$ to different mem/er states that showed signs of support for the /id of .alestine’s statehood! (uring the voting the #9, which a/stained from the voting, cautioned and asked the .3+ to give an assurance of not going to the I11 if granted the statehood, /ut was aptl- rejected /- .3+! These responses signal the discomfort on the part of $tates who are allied with the 7ionist regime of Israel! The 0peration .rotective Edge has to /e seen as an effort /- a regime, which stands on the edge of /eing called as unch of 1riminals, to divert the real issues! The positive sign with regard to International Law is that, while most of its application vanishes in the a&a $trip, the struggle of .alestinians for its $tatehood is recogni&ed in the international legal platform! Likewise, the histor- has to /e documented, if not changed< the International Law has documented the violations of law and justice /- a 7ionist regime! The #nited 3ations eneral +ssem/l- on 3ovem/er A>, AB5? adopted 4esolution DD5B /- a vote of 5; to D? )with D; a/stentions*, “determined that 7ionism is a form of racism and racial discrimination, /ut was revoked in ABBA with another
4esolution =GCG, shortl- following the end of the 1old "ar! The time will come when the international communit- will punish the 7ionists for the crimes committed against the humanit- and the world will cele/rate the full mem/er $tatehood for .alestine and the return of all .alestinians to their soil!
