Text 1 International law and world order

One notable side-effect of the growth of international organizations and institutions is the emergence of the bodies of international law which set in place the principle that in some instances nations-states cease to be the highest form of authority for citizens. Of particular importance have been attempts to produce binding inter­national commitments on the protection of human rights. Declarations such as the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) are premised on the view that human rights transcend national boundaries and that the appropriate definitions of rights and freedoms are not the business of national authorities. The European Convention opens up the possibility that citizens can take their own governments to the European Court of Human Rights.

The appearance of international law raises fascinating questions about transnational justice. The trials of alleged Nazi war criminals at Nuremberg in 1945 and the subsequent prosecutions of similar suspects in Israel arouse a discussion about the relationship between the state and its citizens, the right of national courts to prosecute citizens of other countries and, in the case of the two Israeli cases, the right of а nation-state to adjudicate on crimes which did not take place within its territory. As Held notes, the Nuremberg tribunals set down the principle mat "when international rules that protect basic humanitarian values are in conflict with state laws, every individual must transgress the state laws (except where there is no room for "moral choice").

In 1984, the United States announced that it would unilaterally withdraw from the World Court's jurisdiction. This move followed Nicaragua's accusation that the U.S. Central Intelligence Agency had illegally attempted to "overthrow and destabilize" the elected Sandinista government. Nicaragua charged that the United States had illegally mined its ports and supplied money, military assistance, and training to the rebel contra forces. The United States denied the tribunal authority. In so doing, however, it was not acting without precedent; others had done so previously. Nonetheless, by thumbing its nose at the court and the rule of law it represents, had the United States, as some claimed, become an "international outlaw?" Or, as others asserted, had it acted within its rights?

The World Court supported the former view. In 1984, the court ruled against the United States as follows:

The right to sovereignty and to political independence possessed by the Republic of Nicaragua, like any other state of the region or of the world, should be fully respected and should not in any way be jeopardized by any military and paramilitary activities which are prohibited by the principles of international law, in particular the principle that states should refrain in their international relations from the threat or the use of force against the territorial integrity or the political independence of any state, and the prin­ciple concerning the duty not to intervene in matters within the domestic jurisdiction of a state.

Yet this ruling had little effect, as neither the court nor Nicaragua had any means enforce it.

Events such as this have led many critics to conclude that international law is "weak and defenseless". Indeed, many experts—whether they are realists or liberals—skeptically ask whether international law is really law. There are many reasons to answer this question affirmatively. Although inter­national law is imperfect, actors regularly rely on it to redress grievances. Most of this activity falls within the realm of private interna­tional law—the regulation of routine transnational activities in such areas as commerce, communications, and travel. While largely invisible to the public, private international law is the locus for almost all international legal activities. It is where the majority of transnational disputes are regularly settled and where the record of compliance compares favorably with that achieved in domestic legal systems.

In contrast, public international law covers issues of relations between governments and the interactions of governments with intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs) such as multinational corporations. Some believe that we should use the phrase world law to describe the mixture of public and private, domestic and international transactions that public international law seeks to regulate in an increasingly globalized world. However, it is the regulation of government-to-government relations that dominates the headlines in discussion of public international law. This area of activity also receives most of the criticism, for here, failures—when they occur—are quite conspicuous. This is especially true with respect to the breakdown of peace and secu­rity. When states engage in armed conflict, criticism of its shortcomings esca­lates.

The Rules of International Law. No principle of international law is more critical than state sovereignty. Sovereignty means that no authority is legally above the state, except that which the state voluntarily confers on the interna­tional organizations it joins. In fact, as conceived by theoreticians schooled in the tradition of realism since the seventeenth century, the rules of international law were written to protect states and permitted states "a complete freedom of action" to preserve their sovereign independence.

Nearly every legal doctrine supports and extends the cardinal principle that states are the primary subjects of international law. Although the Universal Declaration of Human Rights in 1948 expanded concern about states' treatment of individual people, states remain supreme. Accordingly, the vast majority of rules address the rights and duties of states, not people. For instance, the principle of sovereign equality entitles each state to full respect by other states as well as equal protection by the system's legal rules. The right of independence also guarantees states' autonomy in their domestic affairs and external relations, under the logic that the independence of each presumes that of all. Similarly, the doctrine of neutrality permits states to avoid involvement in others' conflicts and coalitions.

Furthermore, the noninterference principle forms the basis for nonintervention—that is, states' duty to refrain from uninvited involvement in another's internal affairs. This sometimes-abused classic rule gives gov­ernments the right to exercise jurisdiction over practically all things on, under, or above their bounded territory. (There are exceptions, however, such as diplomatic immunity for states' ambassadors from the domestic laws of the country where their embassies are located and extraterritoriality, which allows control of embassies on other states' terrain.)

In practice, domestic jurisdiction permits a state to enact and enforce what­ever laws it wishes for its own citizens. In fact, international law was so per­missive toward the state's control of its domestic affairs that, prior to 1952, "there was no precedent in international law for a . . . state to assume respon­sibility for the crimes it committed against a minority within its jurisdiction". A citizen was not protected against the state's abuse of human rights or crimes against humanity. Note also that international law permits states to set their own rules for citizenship. Two basic principles govern the way nationality and citizenship are conferred: under jus soli, citizenship is deter­mined by the state in whose territory the birth took place; under jus sanguinis, nationality is acquired by descent from a parent who is a national.

In addition, in earlier periods of modern international law, states were permitted to create whatever form of government they desired without regard to its acceptability to other states. This principle was expressed in the realpolitik language of the Treaty of Augsburg (1555) and the Westphalian Treaties (1648), which made states all-powerful by recognizing the divine right of kings. This doctrine was reaffirmed in the 1943 Atlantic Charter's pledge of "the right of all people to choose the form of government under which they will live." However, the right of people to live under the liberties of democracy is increasingly being defined as an "entitlement" or a basic human right. At Geneva in 1999, states proclaimed that all individuals have a right to democracy," thereby revising international law through a United Nations resolution and by the same vote dealing "a severe blow to those countries which continue to deny their citizens not only democracy but other fundamental human rights". International law still gives states the complete freedom to regu­late economic transactions within their boundaries and empowers the state to draft those living on its soil into its armed forces to fight—and die, if neces­sary—to defend the state.

The Montevideo Convention of 1933 on the Rights and Duties of States summarizes the major components of statehood. A state must possess a per­manent population, a well-defined territory, and a government capable of rul­ing its citizens and of managing formal diplomatic relations with other states. Essentially, the acquisition of statehood depends on a political entity's recogni­tion as such by other states. Whether a state exists thus rests in the hands of other states; that is, preexisting states are entitled to extend diplomatic recog­nition to another entity. De facto recognition is provisional and capable of being withdrawn in the event that the recognized government is superseded by another. It does not carry with it the exchange of diplomatic representatives or other legal benefits and responsibilities. De jure recognition, on the other hand, extends full legal and diplomatic privileges from the granting state. This distinction emphasizes that recognition is a political tool of international law, through which approval or disapproval of a government can be expressed.

Other rules specify how treaties are to be activated, interpreted, and abrogated. International law holds that treaties voluntarily entered into are binding. However, it also reserves for states the right to unilater­ally terminate treaties previously agreed to, by reference to the escape clause known as rebus sic stantibus. This is the principle that a treaty is binding only as long as no fundamental change occurs in the circumstances that existed when it was concluded.

Procedures for Dispute Settlement. In addition to these general princi­ples, international law provides a wide variety of legal methods for states to resolve their conflicts. The laws of negotiation do not obligate states to reach agreement or to settle their disputes peacefully. They do, however, provide rules for several conflict resolution procedures, including:

• Mediation: when a third party proposes a nonbinding solution to a controversy between two other states.

• Good offices: when a third party offers a location for discussions among disputants but does not participate in the actual negotiations.

• Conciliation: when a third party assists both sides but does not offer any solution.

• Arbitration: when a third party gives a binding decision through an ad hoc forum.

• Adjudication: when a third party offers a binding decision through an institutionalized tribunal, such as a court.

The Limitations of the International Legal System

Sovereignty and the legal principles derived from it shape and reinforce international anarchy. World politics is legally dependent on what governments choose to do with one another and the kinds of rules they voluntarily support. Throughout most of modern history, international law as constructed by real­ists was designed by states to protect the state and so made sovereignty the core principle to ensure states' freedom to act in terms of their perceived national interests.

To liberal theoreticians, putting the state ahead of the global community was a serious flaw that undermined international law's potential effectiveness. Many theorists consider the international legal system institutionally defective due to its dependence on states' willingness to participate. Because formal legal institutions (like those within states) are weak at the global level, critics make the following points. First, in world politics no legislative body capable of mak­ing binding laws exists. Rules are made only when states willingly observe or embrace them in the treaties to which they voluntarily subscribe. There is no systematic method of amending or revoking treaties. Article 38 of the Statute of the International Court of Justice (or World Court) affirms this. Generally accepted as the authoritative definition of the "sources of international law," it states that international law derives from (1) custom; (2) international treaties and agreements; (3) national and international court decisions; (4) the writings of legal authorities and specialists; and (5) the "general principles" of law rec­ognized since the Roman Empire as part of "natural law" and "right reason."

Second, in world politics no judicial body exists to authoritatively identify the rules accepted by states, record the substantive precepts reached, interpret when and how the rules apply, and identify violations. Instead, states are responsible for performing these tasks themselves. The World Court does not have the power to perform these functions without states' consent, and the UN cannot speak on judicial matters for the whole global community.

Finally, in world politics there is no executive body capable of enforcing the rules. Rule enforcement usually occurs through the self-help actions of the vic­tims of a transgression or with the assistance of their allies or other interested parties. No centralized enforcement procedures exist, and compliance is volun­tary. The whole system rests, therefore, on states' willingness to abide by the rules to which they consent and on the ability of each to enforce through retal­iatory measures the norms of behavior they value.

Consequently states themselves—not a higher authority—determine what the rules are, when they apply, and how they should be enforced. This raises the question of greatest concern to liberal advocates of a world law: When everyone is above the law, is anyone ruled by it? It was precisely this problem that prompted UN Secretary-General Kofi Annan in 1999 to push for abandonment of traditional "state sovereignty" and acceptance of a new conceptualization of sovereignty. He argued:

It is clear that traditional notions of sovereignty alone are not the only obstacle to effective action in humanitarian crises. No less significant are the ways in which states define their national interests. The world has changed in profound ways since the end of the Cold War, but I fear our con­ceptions of national interest have failed to follow suit. A new, broader def­inition of national interest is needed in the new century, which would induce states to find greater unity in the pursuit of common goals and val­ues. In the context of many of the challenges facing humanity today, the collective interest is the national interest.

Beyond the barriers to legal institutions that sovereignty poses, still other weaknesses reduce confidence in international law. Critics and reformers usu­ally cite these additional alleged deficiencies:

• International law lacks universality. An effective legal system must represent the norms shared by those it governs. According to the precept of Roman law, ubi societas, ibi jus (where there is society, there is law), shared com­munity values are a minimal precondition for forming a legal system. Yet the contemporary international order is culturally and ideologically plural­istic and lacks consensus on common values, as evidenced by the peculat­ing "clash of civilizations" and the rejection by terrorists and others of the Western-based international legal order. The simultaneous operation of often incompatible legal traditions throughout the world undermines the creation of a universal, cosmopolitan culture and legal system

International law justifies the competitive pursuit of national advantage with­out regard to morality or justice. In fact, international law legit­imizes the drive for hegemony and contributes to conflict. The principle of self-help fails to check states' pursuit of power at others' expense; it is a concession to power. By accepting the unbridled autonomy of sovereign independence, international law follows the realists' "iron law of politics"—that legal obligations must yield to the national interest.

International law is an instrument of the powerful to oppress the weak. In a voluntary consent system, the rules to which the powerful willingly agree are those that serve their interests. These rules therefore preserve the existing hierarchy. For this reason, some liberal the­orists claim that international law has bred the so-called structural violence resulting from the hierarchical organization of world politics in which the strong benefit at the expense of the weak. Enforcement is left "to the vicissitudes of the distribution of power between the violator of the law and the victim of the violation." Therefore, Hans J. Morgenthau concedes, "it makes it easy for the strong both to violate the law and to enforce it, and consequently puts the rights of the weak in jeopardy."

International law is little more than a justification of existing practices. When a particular behavior pattern becomes widespread, it becomes legally obligatory; rules of behavior become rules for behavior. Eminent legal scholars’ contention that states ought to behave as they have customarily behaved and the idea that "what the most do, others should do" reflect the positivist legal theory that when a type of behav­ior occurs frequently, it becomes legal. In fact, the highly regarded posi­tivist legal theorists stress states' customary practices as the most impor­tant source from which laws derive. In the absence of formal machinery for creating international rules, for evidence of what the law is, positivists observe leaders' foreign policy pronouncements, repeated usage in conventions voluntarily accepted by states, general practices (by an overwhelmingly large number of states), the judicial decisions of national and international tribunals, and legal principles stated in the resolutions of multinational assemblies such as the UN General Assem­bly. When the sources of international law are interpreted in this way, the actions of states shape law, not vice versa.

International law's ambiguity reduces law to a policy tool for propaganda pur­poses. The vague, elastic wording of international law makes it easy for states to define and interpret almost any action as legitimate. This ambivalence makes it possi­ble for states to exploit international law to get what they can and to justify what they have obtained.

Comprehension