|
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.
|
|
|
(0 vote)