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Essays

International Law

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  1. Introduction/Definition
  2. Nature of the commands of international law
  3. Example
  4. Types of UN sanctions
  5. Role of the Security Council to enforce international law
  6. Politicised international law goes against “law of community
  7. Conclusion

International law is the body of legal rules that apply between sovereign states and such other entities as have been granted international personality (status acknowledge 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 succeed the Permanent Court of international Justice after World War II. Article 92 of the charter of the United 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’état, the “interest of the state” and aim 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 judgment and advisory opinions permeate into the international legal community only through its decisions as such but through the wider implication of its methodology and reasoning.

The successful resolution of the border dispute between Burkina Faso and Mail 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 case-fire, the withdrawal of troops within twenty days, and the avoidance of actions tending to aggravate the dispute or prejudice its eventual resolution.

Enforcement measures are not the sole 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, and acts of aggression. 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 appropriate paradox in a decentralized state system of international politics. Nonetheless, other means of collective sanction through the UN involve diplomatic 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 centralization 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 material assistance of national governments, the UN 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 Nations in 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 occurred. Even the determination is made on political rather than legal criteria. The Security Council may have a legal basis for acting, but self- interest determines how each of its member’s 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 constrains. In this area, called the law of community, governments are generally less willing to sacrifice their sovereign liberties. In a revolutionary international system were 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 interdependence, especially among the states of equivalent power, may foster the growth of positive legal principles. In addition, as friendship and enmities change, some bilateral law may cease to be observed among new enmities, but new law may arise among new friends who have new found mutual interests. In the meantime, some multicultural law may have been developed. Finally, research suggests 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 and 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.

  Maliha Akhtar       Monday, 18 Nov 2019       141 Views

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