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
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.