Does International Law Matter in Relation between States - Essay Example

Does International Law Matter in Relation between s Introduction "International law, is thebody of law that 'regulates the activities of entities possessing international personality'. Traditionally, that meant the conduct and relationships of states. However, it is now well established that International Law also concerns the structure and conduct of international organizations, and, to a degree, that of multinational corporations and individuals" (Wikipedia). International law, as it exists today, makes one question as to whether it has any real influence in impacting issues between states, related to war/peace, human rights, trade and even crime. This is because the interpretation and application of international law makes it so fluid, that it can be molded by any nation to suit its stand. The stronger the nation, the easier it gets to mold the so-called law. Damrosch et al state that international law "governs relations between independent states" (68). But if it is so slippery, how can it ever achieve this objective It must be noted, that customary international law is based on what states consistently practice out of a sense of legal obligation. So, customary international law keeps changing based on acceptance or rejection of specific acts practiced by states. The weakness inherent in international law is further examined from a legal perspective. International law as a law appears to be a paradox. As noted by Glennon: "when a given question can be argued either way, a state is presumed to be free to act. Indeed, it could hardly be otherwise in any legal system. It is, as Kelsen wrote, a 'fundamental principle that what is not legally forbidden to the subjects of the law is legally permitted to them.'84"(63). There is so much uncertainty surrounding international law that the arguments in a court are not so much about whether the actions were permissible or impermissible under international law, but about what international law really specifies. How can such a weak force be expected to bind states or maintain global stability Since international law lends itself to contradictory interpretations, it increases conflicts between states and international organizations. For instance consider the environment protection law on banning tuna caught in the nets that kill dolphins, if accepted, then it has a discriminatory effect on trade. So "international law, as interpreted by the WTO, becomes the friend of business and bugaboo of environmentalists" (Ratner). If the interpretation of international law is going to increase conflicts, how can it ever ensure global stability Overall, international law has too many gaps or overlaps, which only increase tensions between states. It has seen limited success for example in the extradition of Abu Salem Qayyum Ansari to India from Portugal and in the banning of landmines. Question of War and Peace It is an accepted premise that war is waged either in retaliation or in self-defense to an aggressor's move. This has also been an accepted stance in the international framework. US, too supported this stance and normally argued that nations need to work within the international framework so that the world order does not break down. However, it was quick to exempt itself from this rationale, when it planned the Iraq invasion. Bush administration argued on the basis of the pre-emptive principle claiming that Iraq was a potential threat. US rejected traditional international law, claiming that it was not suited to manage the contemporary situation. Arend notes: Traditional international law required there to be an "imminent danger of attack" before preemption would be permissible, the [Bush] administration argues in its 2002 National Security Strategy (NSS) that the United States "must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries." It contends that "[t]he greater the threat, the greater is the risk of inaction - and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack." Is this more permissive approach to preemption acceptable under current international law The answer to this question depends on how one understands the contours of contemporary international law (89). Clearly, international law is very malleable. Considering that a powerful nation has endorsed the pre-emption principle as acceptable under international law, it is likely that smaller nations may end up following the US example. A case in point is India, which can use the US precedent of the approach to pre-emption, to justify an attack on Pakistan. Pakistan is known to have nuclear arsenal of its own and also backs terrorism on Indians in Kashmir, which poses a threat to India's security. Hence India can invade Pakistan on the grounds of pre-emption using the same argument that US applied in invading Iraq. The use of pre-emptive principle to justify war is not new. In 1981 Israel attacked the Osirak Reactor, exactly on this premise. Israel's justification was that Iraq would produce nuclear weapons, which would be used against Israel. Israel claimed that it was acting in anticipatory self-defense. At that time US was critical of Israel's position. However, US was quick to change its mind when it planned invasion on Iraq. Time and again international law has been flouted to suit the political ambitions of states. This only diminishes the credibility of international law as a governing force. History is fraught with examples of breach of international law. Some of these are the Argentine invasion of Falklands in 1982, US invasion of Panama in 1989, Iraqi attack on Kuwait in 1990, NATO/US actions against Yugoslavia in the Kosovo situation in 1999. In none of these cases was the invasion aligned to the premise of self-defense. Even the way international law is designed leaves it too weak to be effective. The fact that a nation can unilaterally preclude a treaty from coming into force, even if other states vote for it, is a case in point. There are 44 states that need to ratify the Comprehensive Test Ban treaty for it to come into force and if any one of those states holds back, the treaty will stay in limbo. This poses a security threat to the states, which have voted in favour of the treaty. Viewed from this perspective, International law does little to ensure peaceful relations among states. As noted by Kirgis: "in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a state would be at stake." One wonders if the situation would be any different if the law did not exist. States seem to be acting on their own free will, using international law to support their stance when it suits them and claiming it to be outdated and traditional when they choose to reject it. So the bottom line is that international law has gone to the wind and nations' strategies are more likely to be impacted by the example of powerful nations. Human Rights The fundamentals of human rights law and international humanitarian law are usually considered as legally binding on states in accordance with customary international law. UN proclaims that the promotion and protection of human rights is a legitimate concern of the international community. This reminds one of the Russian attacks in Chechnya. Various documents on violations revealed that Russia committed serious violations against Chechnya and despite being answerable under the international law for its gross disregard of human rights; Russia's actions went unquestioned, not only by international organisations but even the western states. Russian authorities deterred the efforts of humanitarian organisations, which include the International Committee of the Red Cross, whose access is guaranteed to victims and detainees under the Geneva conventions. "During Russian-Chechen wars Russian political leaders repeatedly claimed that the conflict was an 'internal matter' for the Russian Federation, which other states had no right to meddle in. What was even more remarkable and discouraging was that several western leaders seemed - openly or tacitly - to accept this argument" (qtd in Faurby). There was no investigation made or legal proceedings initiated against Russian soldiers who were suspected of violations. Claiming that human rights law and international humanitarian law is an internal matter is in contradiction to the international law. So what is the efficacy of international law in trying to uphold human rights If this situation is examined carefully, it appears that the weak stand adopted by the other nations, especially western states, was motivated by fear of political chaos in Russia. Western states believed that criticism of Yeltsin would jeopardise the democratic processes in Russia, and bring the nationalists and communists to power, and hence did not raise the issue of human rights. Once again, in relationships between states if international law helps to achieve a political objective then it is upheld, but if it obstructs the achievement of political goals it is dismissed as an unnecessary intrusion into a state's internal affairs. The bowing down to Russia costed many human lives. It is apparent that Russia's powerful status made the others toe its line. If violations of the same kind were committed by the less powerful states, one speculates whether international organizations and western states would have reacted differently. The weakness inherent in international law is further explored with the example of US's policy of detaining people presumed to have ties with terrorism. It is claimed that abuses are rampant in detention facilities maintained by US. It is expected that international law offers relief to the detainees, and restores their fundamental human rights. However this does not happen because of the gaps that exist in the implementation of international law. According to Amann: Tradition relegated these matters to international humanitarian law, a juridical niche apart from the internal criminal justice system. But the campaign against terrorism upset this neat taxonomy. Waged inside as well as outside the United States, by American officials and at times against American citizens, the campaign confounded the foreign-domestic dichotomy. Legal challenges revealed gaps in the law. Neither the Geneva Conventions nor any other international law applied to all issues raised by the U.S. policy, and no extranational tribunal seemed able to enforce a judgment regarding that policy. Repeatedly, the law indicates itself to be so weak, that it only prolongs peace process and extends the severe ties between nations. International law does not even remotely seem to impact the will of the stronger nations. As noted by Leone: "As a matter of international law, the American position can be described as selective or balanced, tricky or nuanced. It can also be described as careless, in that it probably was not necessary for the United States to act as if it were making up international law as it went along" (102). Trade Trade forms a critical part of relationships between states, fostering goodwill and enhancing a sense of partnership. The free trade ideal is truly a boon to economic development. International law has a role to play in helping regulate the economic environment, eliminating corruption and ensuring the enforcement of commercial contracts among states. The states also depend on international law to diffuse any political crisis so that trade is not affected. But does international law succeed in achieving this The answer is no. A case in point is US, which has violated international law by flouting the principle of free trade. It imposed economic sanctions on Cuba under the Helms-Burton Act, which not only affected US companies, but also non-US companies trading with Cuba. According to Helms Burton Act: any non-US company that "knowingly traffics in property in Cuba confiscated without compensation from a U.S. person" can be subjected to litigation and that company's leadership can be barred from entry into the United States. Sanctions may be applied to non-U.S. companies trading with Cuba. This means that internationally operating companies have to choose between Cuba and the US, which is a much larger market (Wikipedia). International law seems to have no force in preventing these sanctions, which results in conflicting situations between states and hurts international economy. World Trade Organization (WTO), which was created to regulate global trade, also held the responsibility to monitor the legal action against US. US, as usual with its sense of might, was heedless of WTO and refused to cooperate with legal procedures. It claimed that WTO did not have the structure to regulate international law. What appears is, that the world order seems to be ruled not by some international body but by the more powerful nations. The arms trade further illustrates the inefficacy of international law. While UN had imposed sanctions on India and Pakistan to the effect, that they were not to receive any arms transfer, post September 11th, US flouted these sanctions and supplied Pakistan with arms, helicopters and spare parts for fighter planes. No law seemed to be able to control US's action. By not following the rules governing trade, US fuels conflicting situations between states, which threaten global security. As noted by Chace and Rizopoulos: "A world in which a globalized economy is the norm-undergirded by inter-national financial institutions such as the World Trade Organization, the International Monetary Fund, and the World Bank (and in Europe by the European Monetary Union, with a European central bank)-but where world government per se is still a distant dream, in such a world the need for alternative, and more efficacious, mechanisms for political decision making (and crisis-diffusion) is palpable." International law does not seem to hold answers to resolve disputes and govern trade between states. Crime International law provides for the International Criminal Court (ICC) to protect the world from war crimes, genocide and crimes against humanity. US, which has historically supported the establishment of international law, took a stance against the ICC stating that it conflicted with US's national sovereignty. US's position undermines the efficacy of ICC. As noted by Green: However its current "Bush has tirelessly worked to ensure absolute immunity from the court, signing deals with 18 countries to forbid ICC extradition of US nationals. Other ICC signatory states report that the United States has threatened them with a withdrawal of military and economic aid if they do not sign similar agreements"(1). Given this scenario how can international law impact relations between states such that peace is maintained, rights are protected and abuses of national power are avoided Conclusion Perhaps international law is not so forceful since it lacks in written contracts on all aspects. The tendency to compare it with domestic laws, and expect that it functions in the same manner to resolve issues, leaves international law very diluted. One begins to believe that in a real sense it is not an anchor to hold on to. It derives its force only from the pressure that states may put on each other to honour their obligations and stay consistent in their approach, and may be that is the reason for its success in some instances. Works Cited Amann, D.M. "Guantnamo." The Columbia Journal of Transnational Law. 42:2 (2004).12 Nov 2005.< http://www.columbia.edu/cu/jtl/Vol_42_2_files/Vol_42_2_amann.html> Arend, A.C. "International Law and the use of Pre Emptive Force". Washington Quarterly.26:2 (2003). 89-103. 12 Nov 2005.< http://www.twq.com/03spring/docs/03spring_arend.pdf> Chace, J., Rizopoulos, N.X. "Grand Strategy Toward a New Concert of Nations: An American Perspective." World Policy Journal. 16:3. (1999).11 Nov 2005.< http://www.worldpolicy.org/journal/chace_rizo.html> Damrosch, L.F., Henkin L., Pugh, R.C., Schachter, O. and Smit, H. International Law: Cases and Materials. 4th American Casebook Series, 2001. Faurby , I. "International Law, Human Rights and the Wars in Chechnya," Caucasus. 26 Dec 2003. Danish Association for Research on the Caucasus. 12 Nov 2005. Green, N. "Stonewalling Justice US Opposition to the ICC." Harvard International Review.26:2.(2004).12 Nov 2005.< http://hir.harvard.edu/articles/1239/2/> Glennon, M.J. Limits of Law, Prerogatives of Power : Interventionism after Kosovo. New York, NY:Plgrave, 2001. "Helms-Burton Act". Wikipedia The Free Encyclopedia.. 10 November 2005. Wikimedia Foundation.13 Nov 2005.< http://en.wikipedia.org/wiki/Helms-Burton_Act> "International law". Wikipedia The Free Encyclopedia.. 11 November 2005. Wikimedia Foundation.13 Nov 2005.< http://en.wikipedia.org/wiki/International_law> Kirgis, F.L. "ASIL Insights India's Nuclear Tests." The American Society of International Law. . May 1998. ." The American Society of International Law. 13 Nov 2005. Leone, R.C. The War on Our Freedoms: Civil Liberties in an Age of Terrorism. USA:The Century Foundation, 2003. Ratner, S.R. "International Law: The Trials of Global Norms". 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