Introduction to International Law

Where does the greatest weakness of international law lie: in its lack of a legislature, in its lack of an effective system of courts or in its lack of sanctions?


Research Paper (postgraduate), 2007

11 Pages, Grade: B+


Excerpt

Contents

Introduction

Development
A. Historical background
B. Potential weaknesses: lack of legislature, of an effective system of courts, and of sanctions
C. Analysis
D. Iraq as a case – international law, “the law of the powerful”

Conclusion

References

Introduction

The dispersion and fragmentation of power in the community of states system, developed since the 1648 Peace of Westphalia, lie within a ‘horizontal’ framework of international relations. Such structure bears an anarchical nature, that is, there is not yet one world government to enforce international law and proper sanctions, nor an effective court system. Indeed so far, states seem to rather pursue their own interests, as they are still being the main actors under the remit of international law. Cassese argues that, states’ power of legal rules’ ‘auto-interpretation’ is “a power that necessarily follows from the absence of courts endowed with general and compulsory jurisdiction”.[1]

This assignment, with its different sections, will attempt to address the question: “Where does the greatest weakness of international law lie: in its lack of a legislature, in its lack of an effective system of courts or in its lack of sanctions?”

Development

A. Historical background

International law developed along the evolution of the world community. For instance, it originally bears the “imprint of Eurocentrism, christian ideology, and of ‘free market’” since its creation in the 17th century until the First World War. The term ‘international law’ itself was first coined in 1780 by J. Bentham, in Great Britain. In the context of industrialization and the search for resources, international norms and principles were to be “mainly framed by the Great Powers or middle-sized States, particularly by those states which built up extensive colonial empires”. They then “elaborated the rules to serve their own interests”.[2]

The post-World War 1 era brought about the principle of self-determination underlined by the victorious American power President Wilson’s 14 Points. Among the flaws of the League was that it ended up as being a political tool for Britain and France, which for instance extended their colonial powers in the Middle East through the mandate system. With the breaking of the Second World War, the League saw its end but was to be replaced by another mechanism to maintain peace and security. However, according to Cassese, those who framed the [United Nations] UN Charter “did not naïvely pursue the goal of permanent and universal peace”. Indeed, they knew that “international friction and inter-State armed conflict would not disappear by legislative fiat”[3].

Global affairs are now in the hands of the five Security Council permanent members, whose veto power is acknowledged by Article 27.3 of the UN Charter. Though the newly independent countries, which formed the ‘Third World’, became the majority within the UN General Assembly, the few carrying the veto power still remained the powerful ones. The Cold War was for instance the scene of power race, both economic and military, for them. With the end of the Cold War, which established the United States as the sole Superpower, the UN seems to face a decline, while military alliance like NATO is given a more important role. The ever-widening North-South gap and all it encompasses, the continuous competition over resource control and the impact on environmental degradation, are now more than ever before threatening world peace and security. International law has meanwhile extended its field to include among others: international humanitarian law, international environmental law, and international trade law.[4] However, the validity of international law but also its use as a IR rhetoric, according to Goldsmith & Posner’s theory “emerges from states acting rationally to maximize their interests, given their perceptions of the interests of other states and the distribution of state power”[5]. In other words, international law is “used to mask or rationalize behavior driven by self-interested factors that have nothing to do with international law”.[6] But its weaknesses are still present though it has become “an integral component of global affairs”.[7]

B. Potential weaknesses: lack of legislature, of an effective system of courts, and of sanctions

Although in comparison to national law, one cannot find a proper legislature at the international level, the UN General Assembly seems to come close (though its decisions cannot be seen as legal) to this important aspect of law.[8]

Besides, although its flaw is seen through the consent principle (i.e. consent is given by states) the International Court of Justice still represents the world court. However, according to Scott, “the operation of the ICJ is underpinned by the principle of consent” since “the ICJ can hear a contention between states only if the states have consented to the Court to do so”.[9]

The enforcement system is being operated, not always successfully but also imperfectly, by the UN Security Council according to Chapter 7 of the UN Charter. It is underlined that, “the Security Council may determine the existence of any threat to the peace, breach of the peace or act of aggression, and may impose mandatory sanctions to try to rectify the situation”. Trade sanctions were for instance applied to countries like Angola, Haiti, Iraq, Liberia, Libya, Rwanda, Somalia and those of the former Yugoslavia. The negative impact of such sanctions was the fact it heavily affected the unempowered civilians. In addition, this enforcement system is also being questioned since it does not hold any democratic representation for all UN member states, that is only five countries determine the enforcement agenda. This was illustrated in the cases of Afghanistan, Iraq, the Flakland Islands, Tibet and Chechnya. As a result different international and regional organizations have elaborated ways, such as the “mobilization of shame” to pressure non-compliant governments against standards. But generally, however, states would tend to comply, out of “enlightened self-interest” and necessity, with the set norms and render them effective.[10]

C. Analysis

Various theories tend to see current international law in a negative lens. An overview of their arguments might be necessary to understand the weaknesses underlined.

The deconstructionist approach stresses the lack of “legal objectivity” in international law, so that “it can be used to justify or criticise international behaviour on a rational or objective basis”. Moreover, they see international law as “rather, a conjunction of politics, morality and self-interest that can be used alternatively to justify or condemn any behaviour according to the standpoint of the critic”.

On the other hand, the value-orientated school of thought believes that international law is to pursue “certain preexisting community values” such as ‘world public order’ so that “all rules should be interpreted and applied consistently with these values”.

The realist theorists rather underline the fact that “the real importance of international law lies not in the validity or otherwise of its claim to be law, but in the impact it makes on the conduct of international relations”.

As for non-statist thinkers, they discard the narrow-leaned “fundamental concept of international law as a system of law created primarily by states for states”. Indeed, there is a growing importance of international law related to individuals, “or as a means of achieving justice (sometimes at the expense of stability) or as a means of accommodating the cultural and ethnic diversity of a modern international society that is no longer centred on Europe”.

It is therefore not the binding aspect of international law which is questioned as to its quality compared to national law, but rather the fact that it carries a “less organised approach to the problems of adjudication and enforcement”. However, international law is still needed today in the ever-growing interdependent activities and agendas of international relations.

In this volatile world, international law’s failure to implement one of its main objectives that is, “the regulation of an ordered community where the weak are protected from arbitrary action by the strong”, is for instance hindered by the remaining superpower’s actions. These are for instance: “the invasion of Iraq, the detention of terrorist suspects without trial, or the unhindered resort to terrorism by groups based in existing states (with or without the support of that state’s government), or the rejection by some of international minimum standards for the protection of the environment”.

The UN, on the other hand clearly failed in Kosovo and Somalia, but then somehow succeeded in Korea in 1950, in Iraq in 1990-1, in East Timor against Indonesia, and through the “establishment of an International Criminal Court responsible for prosecuting individuals for violation of fundamental international human rights and the powerful judgment given by the International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Rep July 2004)”.

Still, despite its different imperfections, international law’s primary aim to regulate international relations (which includes states and individuals) in this anarchical and interdependent world system makes it nonetheless unsuitable for comparison with national law. It is also worth mention here that

[...]


[1] Cassese A., International Law, p.6

[2] ibid., pp.30-31

[3] ibid., p.40

[4] Scott S.V., International Law in World Politics, p.1

[5] Goldsmith J.L. & Posner E.A., The limits of International Law, p.3

[6] Scott S.V., op.cit., p.226

[7] ibid., p.1

[8] Goldsmith J.L. & Posner E.A., op.cit., p.3

[9] Scott S.V., op.cit., p.11

[10] http://www.asil.org/insights/insight1.htm, Enforcing International Law

Excerpt out of 11 pages

Details

Title
Introduction to International Law
Subtitle
Where does the greatest weakness of international law lie: in its lack of a legislature, in its lack of an effective system of courts or in its lack of sanctions?
College
University of Malta
Grade
B+
Author
Year
2007
Pages
11
Catalog Number
V135441
ISBN (eBook)
9783640437559
ISBN (Book)
9783640500208
File size
513 KB
Language
English
Tags
Introduction, International, Where
Quote paper
Jennie Robinson (Author), 2007, Introduction to International Law, Munich, GRIN Verlag, https://www.grin.com/document/135441

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