Two Main Strengths and Weaknesses of International Law
International law consist of rules and principles that govern relations between sovereign states and other variations of states like the United Nations, the Arab League and the European Union. Its fairly recent contributions have been at the state level, but it is becoming increasingly concerned with individual rights, more specifically human rights in the context of the global community. International law also works with many governmental and non-governmental organizations in order to aid foreign disasters and problems, such as the Red Cross (ICRC) and Save The Children Fund. Unfortunately, while aspiring to be idealistic, the global community follows a more realistic approach; so rules, regulations and laws are made primarily by states as a means to facilitate and/or control other states relations in the global community. International law covers almost all areas of international and state to state affairs. There are international laws regulating the use of the sea, fishing and sea owned around a nations land. There are also laws regarding states carbon emissions, outer space and Antartica. These laws go on to govern telecommunications and importing and exporting goods. Being that it controls so much of trade, international law is the primary tool of conduct for international trade. Without international law, such an interdependent world would not be possible. It tries to create a medium for all states to resolve problems or come to for aid. International law, however, has evolved from being concerned with helping global cooperation, to now being more involved in controlling and contributing to global corporations and controlling states. But like many things built and established by humans, it has imperfections, disruptions and distractions.
One of the major weaknesses of international law is its inability to enforce its policies, sanctions and actions in an efficient and potent manner. D. J. Harris calls this “the ‘Austinian’ handicap”. This “handicap” is a question posed by Harris “Is international law ‘law’?” It is inherent in its nature, as international law is innately tied with diplomacy, politics and cultures of foreign states, which can and will oppose the international communities beliefs on many paradigms. Since international law was not designed to control but to facilitate international activity, it has a hard time enforcing any course of action in our realist globalized community. As any power given to it would be consequently power taken from any one given state or the international community as a whole. Austin defined law, loosely, as a command from a political superior? a sovereign? to a political inferior, and backed by a threat of evil in the event of non-compliance. Based on Austin’s prospective, in which he states what is “usually styled the law of nations or international law […] consists of opinions or sentiments current among nations generally. It therefore is not law properly so called” (Austin 1954, 141-2). For this reason, from an Austinian point of view, international law cannot be considered a set of rules because it can only be enforced by moral principles. International law relies almost exclusively on consent to take any course of action; because of this it is and will likely remain legally weak. Breaches of international law happen all the time all over the world and are ineffectively controlled. When a nation’s self interest supersedes that of the international community, international law is broken. Some examples of this are the 1990 invasion of Kuwait and the U.S. invasion of Iraq. It is, again, inherent in human nature to abuse and exploit any system, as there would be no crime if that were not the case. This is, however is blown into a macro scale, whereby, people are interchanged by nations and organizations. It is no wonder then that international law, being governed by politics of many cultures and ideals, must be flexible and therefore not proper law.
“The Internet has made communication so much easier and faster. But just because you can bring parties together doesn’t make people more likely to understand one another.” (Steve Teraoka)
Another weakness of international law is connected to its inability to enforce. It is its inherent subjective nature to culture. This inheritance derives from The Treaty of Westphalia of 1648, which is a treaty that began the concept of sovereign states, each legally entitled to govern their own territory and population free of any external influence. This of course worked well in a world not so interdependent. Now, however, that is no longer the case. Culture is so intertwined with politics and policy that is difficult to come to a general consensus about any given issue, and more so begin to address. Culture more often then not becomes a scapegoat for not meeting international legal standards, a buffer between international policies as they relate to domestic policies and loop holes to reinterpreting laws. Moreover, culture becomes an excuse for governments who do not live up to certain standards. These governments will pass legislation and work to promote and enforce the law, but ultimately blame the stagnant results on the people being stuck in their traditional views or culture. The achilles heel of international law would have to be religion as it upholds the most strict and indisputable laws, and creates the most difficult situations for law to tackle. For example, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), is one of the major organizations in the United Nations. The organization consistently addresses issues as it pertains to international women and their cultures. Every culture views women differently in terms of both social and political standards. In India, the CEDAW has become a tool for the Hindu majority to address issues with the Muslim minority. In India there are distinctions in legislation between universal laws which apply to all Indian citizens and “personal” laws which govern family relations and such. Personal laws are defined and upheld by specific ethic groups, while the larger government policy is that of noninterference in religion. These personal laws go on to discriminate and facilitate violence against women. The CEDAW suggested a uniform national code, however, it was not universally supported. This is a case where religion and more so “culture” was the culprit for inaction and the ineffectiveness of international law. Cultural understanding and empathy are crucial in international law, as a law’s interpretation can range drastically from culture to culture and in this globalized world, we must account for cultural differences.
Yet another deficiency of International Law is defined by the absence of a way to empower the rulings of the International Court of Justice. Upon the making of the ICJ, all nations agreed that states would have had to accept the court’s ruling in order to allow it to judge their problems. There was no world government that would make states respect and enforce the law of the ICJ. Also, because of the arrangement of the deal, states would want to limit there sovereignty as little as possible. This created a mentality and system where no real system of accountability and or real equal representation exist and the implementation of its law still rests on the will of the main states. (Villani, 2016)
A major strength of International law is the ever growing and innate ability to exert political, economic and social pressures on nations. One of the main tools in the international communities arsenal is sanctions. Sanctions are penalties placed on another country or individuals of that country. It is a form of economic pressure that international law can place on countries that decide to swim against the tide. While many sanctions do not work because of underground networks and other alliances, many have provided results, made significant contributions and set major precedences in the international community. Sanctions can take many forms such as tariffs, embargoes, non-tariff barriers and the freezing of assets. For example, in 2013 the U.S. passed the bill H.R 850 which essentially banned Iran from selling any oil abroad because of its nuclear program, and because of sanctions already placed on Iran, which cut exports by half, immense political pressure was placed on the Iranian government to take action. Another example of sanctions placed on a country is the embargo America had placed on Cuban exports in 1960. (Radcliffe 2018) Sanctions are used for a range of international agendas from regulation of the international market to creating pressure on states (like the United States and it it’s sanctions on South Africa during the apartheid). The power in sanctions only work if the pressure results in policy reform. Another example, going back to the CEDAW in India, is when the organization published reports on them and their results. This is an instance of when public shaming can result in some policy reform due to social pressure. If countries have a bad reputation, it can affect relations with allies and trade in the international market.
The creation of NATO is another example. While the North American Treaty Organization plays an important role in the areas of collective security and humanitarian efforts,the primary justification for its continued global significance is its centrality in international politics.It’s principle objective is to create a community of nations with common values, nations that value liberal, democratic government and the protection and enforcement of human rights. While their main concern was communism,the main member states of NATO collectively came together under a shared common purpose.
In terms of the progress made by international law over many decades, between the end of World War II and the early 1960s, the most important event signifying strength for this law was the adoption of the four Geneva Conventions in August of 1949 for the protection of war victims. It is fortunate that their adoption proved possible soon after World War II and was not delayed, as was the revision of the preceding Geneva Conventions in the years after World War I. At that time, the belief prevailed that the League of Nations had brought permanent peace to the world. That belief ruled out any consideration of new conventions on warfare. It was consequently not until 1929 that two new conventions, one on the wounded and sick, the other on prisoners of war, were adopted. However, a third convention and perhaps the most urgent one, dealing with the protection of civilians, met with political opposition and had not yet been adopted when the world was again taken over by war. The flexibility of the Geneva Conventions and other laws like it, allowing for reinterpretations of laws. Because international law is so vague, it has the flexibility to begin to define laws in boarder terms and in certain instances this can be used to advance countries forward in their way of thinking and addressing their policies. An example of this is when Egypt ratified the CEDAW with reservations, agreeing to follow some articles but not all because of Egypt’s system of religious law, the shari’a. However in 2001 Egypt reported that they passed family acts that allowed women to get divorced unilaterally. This was made possible by the fact that unilateral divorce was already being practiced in rural areas making it easier to pass. In addition, the icing on the cake, is that the law was passed using the same stipulation that caused the inequality in the first place, in terms of “culture and religion”. The law was passed in relation to true islamic values, arguing that the discrimination was a byproduct of traditional values and true islamic values supported gender equality. The precedences Egypt set were very important as they provided reinterpretations of local and international law. Allowing the world to see that international law, when proceeded by correctly, can be used to effectively and profoundly change a countries policy and culture.
With examples for both weakness and strengths where do we lie in implementing and the future of international law? I believe the middle ground starts in the way we see our globalized world. We see nations as governing agents but that is every changing and we are starting to see economies and international corporations playing more and more important roles in our global community. As we start to catch on we can now begin to solve modern day problems by working with not only states but also corporations to address global issues. An example of this is the Gulf Oil spill which occurred in 2010 in the days following April 20th. It is widely considered the worst oil spill in U.S history. This oil spill killed 11 people and has caused immeasurable damage to the Gulf region, especially near Louisiana. Yet, Article 192 of the Law of the Sea convention (LOSC) places an obligation on the United States to “protect and preserve the marine environment”. This obligation applies regardless of whether or not environmental pollution affects other states. Further to this general obligation, states have a duty to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction” which shall be “no less effective than international rules, standards and recommended practices and procedures.” LOSC, Article 208 (Harrison 2010).
“It was not offshore drilling per se that led to the accident, but rather the fact that too cozy a relationship between regulators from the U.S. Department of the Interior’s Minerals Management Service (MMS) and owners and operators of the Deepwater Horizon rig led to woefully inadequate regulatory oversight.” (Ebinger, 2016) These cozy relationships between nations and owners of corporations leads to looser regulations and leave room for corruption, environmental issues and human abuse rights. By working more closely with these corporations we can help determine where our efforts go and how to best regulate and lead jurisdiction to move forward on ethical, environmental and economic issues.
In summary, international law is a reflection of our interactions as humans; complicated, messy and self interested. Iterations over different rules, codes and ethics of international law have come and gone that have displayed multiple positives and negatives. Yet, it has shown to have a dramatic impact on the international community, not only by providing a medium for resolution (International Court of Justice) but by also providing tools such as sanctions, conventions and organizations to pressure countries to making the reforms necessary to move the world forward in human rights, a more peaceful planet and a more interdependent international community.