Analysis Of International Law Essay, Research Paper
Analysis of International Law
International law is the body of legal rules that apply
between sovereign states and such other entities as have been granted
international personality (status acknowledged by the international
community). The rules of international law are of a normative
character, that is, they prescribe towards conduct, and are
potentially designed for authoritative interpretation by an
international judicial authority and by being capable of enforcement
by the application of external sanctions. The International Court of
Justice is the principal judicial organ of the United Nations, which
succeeded the Permanent Court of International Justice after World
War II. Article 92 of the charter of the United Nations states:
The International Court of justice shall be the principal
judicial organ of the United nations. It shall function in accordance
with the annexed Statute, which is based upon the Statute of the
Permanent court of International Justice and forms an integral part of
the present Charter.
The commands of international law must be those that the
states impose upon themselves, as states must give consent to the
commands that they will follow. It is a direct expression of raison
d’etat, the “interests of the state”, and aims to serve the state, as
well as protect the state by giving its rights and duties. This is
done through treaties and other consensual engagements which are
legally binding.
The case-law of the ICJ is an important aspect of the UN’s
contribution to the development of international law. It’s judgements
and advisory opinions permeates into the international legal community
not only through its decisions as such but through the wider
implications of its methodology and reasoning.
The successful resolution of the border dispute between
Burkina Faso and Mali in the 1986 Frontier Dispute case illustrates
the utility of judicial decision as a means of settlement in
territorial disputes. The case was submitted to a Chamber of the ICJ
pursuant to a special agreement concluded by the parties in 1983. In
December 1985, while written submissions were being prepared,
hostilities broke out in the disputed area. A cease-fire was agreed,
and the Chamber directed the continued observance of the cease-fire,
the withdrawal of troops within twenty days, and the avoidance of
actions tending to aggravate the dispute or prejudice its eventual
resolution. Both Presidents publicly welcomed the judgement and
indicated their intention to comply with it.
In the Fisheries Jurisdiction case (United Kingdom v. Iceland,
1974) the ICJ contributed to the firm establishment in law of the idea
that mankind needs to conserve the living resources of the sea and
must respect these resources. The Court observed:
It is one of the advances in maritime international law,
resulting from the intensification of fishing, that the former
laissez-faire treatment of the living resources of the sea in the high
seas has been replaced by a recognition of a duty to have due regard
of the rights of other States and the needs of conservation for the
benefit of all. Consequently, both parties have the obligation to keep
inder review the fishery resources in the disputed waters and to
examine together, in the light of scientific and other available
information, the measures required for the conservation and
development, and equitable exploitation, of these resources, taking
into account any international agreement in force between them, such
as the North-East Atlantic Fisheries Convention of 24 January 1959, as
well as such other agreements as may be reached in the matter in the
course of further negotiation.
The Court also held that the concept of preferential rights in
fisheries is not static. This is not to say that the preferential
rights of a coastal State in a special situation are a static concept,
in the sense that the degree of the coastal State’s preference is to
be considered as for ever at some given moment. On the contrary, the
preferential rights are a function of the exceptional dependence of
such a coastal State on the fisheries in adjacent waters and may,
therefore, vary as the extent of that dependence changes. The Court’s
judgement on this case contributes to the development of the law of
the sea by recognizing the concept of the preferential rights of a
coastal state in the fisheries of the adjacent waters, particularly if
that state is in a special situation with its population dependent on
those fisheries. Moreover, the Court proceeds further to recognise
that the law pertaining to fisheries must accept the primacy of the
requirement of conservation based on scientific data. The exercise of
preferential rights of the coastal state, as well as the hisoric
rights of other states dependent on the same fishing grounds, have to
be subject to the overriding consideration of proper conservation of
the fishery resources for the benefit of all concerned.
Some cases in which sanctions are threatened, however, see no
actual implementation. The United States, for example, did not impose
measures on those Latin American states that nationalized privately
owned American property, despite legislation that authorizes the
President to discontinue aid in the absence of adequate compensation.
Enforcement measures are not the sole means of UN sanction.
Skeptics of the coercive theory of international law note that
forceful sanctions through the United Nations are limited to
situations involving threats to the peace, breaches of peace, and acts
of aggressiion. In all other instances of noncompliance of
international law, the charter’s own general provisions outlawing the
threat or use of force actually prevent forceful sanction. Those same
skeptics regard this as an appropriate paradox in a decentralized
state system of international politics. Nonetheless, other means of
collective sanction through the UN involve diplomatic intervention and
economic sanctions.
In 1967 the Security Council decided to isolate Southern
Rhodesia (now Zimbabwe) for its policy of racial separation following
its unilateral declaration of independence from Britain. As in other
cases of economic sanctions, effectiveness in the Rhodesian situation
was limited by the problems of achieving universal participation, and
the resistance of national elites to external coercion. With respect
to universal participation, even states usually sympathetic to
Britain’s policy demonstrated weak compliance.
The decentralization of sanctions remains one of the major
weaknesses of international law. Although international bodies
sometimes make decisions in the implementation of sanctions, member
states must implement them. The states are the importers and exporters
in the international system. They command industrial economies and the
passage of goods across national boundaries.
Furthermore, the UN is wholly dependent on its members on
operating funds, so no matter what decisional authority its members
give it, its ability to take action not only depends on its decision
but also on means. Without the support, the wealth and the material
assistance of national governments, the UN is incapable of effective
sanctions. The resistance of governments to a financially independent
UN arises principally on their insistence on maintaining control over
sanctioning processes in international politics.
Despite sweeping language regarding “threats to peace,
breaches of the peace, and acts of aggression”, the role of the United
Nationsin the enforcement of international law is quite limited.
Indeed the purpose of the UN is not to enforce international law, but
to preserve, restore and ensure political peace and security. The role
of the Security Council is to enforce that part of international law
that is either created or encompassed by the Charter of the United
Nations. When aggression occurs, the members of the Council may decide
politically – but are not obliged legally – to undertake collective
action that will have sanctioning result. In instances of threats to
or breaches of the peace short of war, they may decide politically to
take anticipatory action short of force. Moreover, it is for the
members of the Security Council to determine when a threat to peace, a
breach of peace, or an act of aggression has occured. Even thi
determination is made on political rather than legal criteria. The
Security Council may have a legal basis for acting, but self-interst
determines how each of it members votes, irrespective of how close to
aggression the incident at issue may be. Hence by virtue of both its
constitutional limitations and the exercise of sovereign prerogatives
by its members, the security council’s role as a sanctioning device in
international law is sharply restricted.
As the subject matter of the law becomes more politicized,
states are less willing to enter into formal regulation, or do so only
with loopholes for escape from apparent constraints. In this area,
called the law of community, governments are generally less willing
to sacrifice their soverein liberties. In a revolutionary
international system where change is rapid and direction unclear, the
integrity of the law of community is weak, and compliance of its often
flaccid norms is correspondingly uncertain.
The law of the political framework resides above these other
two levels and consists of the legal norms governing the ultimate
power relations of states. This is the most politicized level of
international relations; hence pertinent law is extremely primitive.
Those legal norms that do exist suffer from all the political
machinations of the states who made them. States have taken care to
see that their behaviour is only minimally constrained; the few legal
norms they have created always provide avenues of escape such as the
big-power veto in the UN Security Council.
Despite the many failures and restrictions of international
law, material interdpendence, especially among the states of
equivalent power, may foster the growth of positive legal principles.
In addition, as friendships and emnities change,, some bilateral law
may cease to be observed among new emnities, but new law may arise
among new friends who have newfound mutual interests. In the meantime,
some multicultural law may have been developed. Finally, research
suggests that the social effects of industrialization are universal
and that they result in intersocial tolerances that did not exist
during periods of disparate economic capability. On social, political,
ane economic grounds, therefore, international law is intrinsic to the
transformation and modernization of the international system, even
though the “law of the political context” has remained so far.