Essay/Term paper: International law

Essay, term paper, research paper:  Sociology Essays

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 ofthe 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.