Task: International law is often criticized as not being truly law as it lacks the formal dispute settlement and enforcement mechanisms typically found in domestic legal systems. Hans Morgenthau offered a realist critique of international law in his 1948 book, Politics Among Nations. He observed: “There can be no more primitive and no weaker system of law than this. Considerations of power, rather than law determine compliance and enforcement.” Agree or disagree. How effective is international dispute settlement?
To assess if international law as such as well as its dispute settlement mechanisms can be considered effective or not, rather depends on the theoretical lens through which we look at the world. In international relations we can roughly divide the world into a liberal and a realist world. In the former world we can find the established democracies of the OECD-world with a high level of economic interdependence and institutionalized integration, based on liberal values like cooperation. The latter is marked by values like a struggle for (military) power and security, characterized by balancing behaviour and mutual mistrust.
Morgenthau definitely has a point: the success of dispute settlement mechanisms (= diplomatic means and legally binding methods) depends in both groups on goodwill, which particularly in a realist world of territorial states without an overarching government is more difficult to achieve. As Shaw notes, “all the methods available to settle disputes are operative only upon the consent of the particular states” (Shaw 2003, p. 916). Only if both parties agree with the result it will have an effect, whereas the diplomatic means are in general the weakest and least enforceable ones, as not legally binding. Besides, before exercising jurisdiction, nations must be party to either a relevant treaty (which brings a dispute to the court) or agree explicitly to refer a matter to the court. Generally states are less willing to bring an issue before the court if it touches their “vital interests” (Shaw 2003, p. 917).
Also, political influence plays an important role. Cassese backs Morgenthau’s argument that the respect for law depends largely on the power a state has, as the majority of rules are currently based rather on the principle of reciprocity, and therefore “the reaction to a wrong ultimately depends on whether the victim is stronger than or at least as strong as the culpable State” (2005, p. 15). This, in turn implicates that a binding judgment is not necessarily respected by the affected states. There are few really effective means to enforce it (except sanctions maybe), whereas stronger and more powerful nations have to fear less consequences if not adhering to it. In short: authority to enforce is limited because there is no strong executive power.
Nevertheless, especially in the developed (or liberal) world those dispute settlement mechanisms are to a great extent employed very successfully. Especially in the economic realm most states are parties to big IGOs like WTO, IMF or World Bank with their elaborated dispute settlement mechanisms. Shaw notes that especially arbitration (with regard to the need of technical expertise) is a very effective and widely accepted means of dispute settlement. Additionally, the number of cases brought to the ICJ in the last years has been rising intensely, pointing at an increasing importance of such dispute settlement mechanisms (2003, p. 958, 1005).
Last but not least, in this liberal and interdependent world reputation, prestige and particularly the benefits out of it matter quite much. Therefore, states abide by judgments more likely in order to keep a good position in the intertwined system.
To sum up: the weakness of the dispute settlement mechanisms in international law cannot be denied. However, the number of cases to be regulated is rising and judgments are followed quite often, especially in the globalized and interdependent world.
- Quote paper
- Natalie Züfle (Author), 2008, How effective is international dispute settlement?, Munich, GRIN Verlag, https://www.grin.com/document/180100