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- 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.
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