International Law - Dissertation Example

 International Law The topic given to me to complete my final project is “International Law”. Before I start with the project, I would like to give a brief start up plan that I have planned for the Final project. The basic theme of the final project would be on Law, to be more precise it will have its main emphasis on the International Law. The first and the foremost thing that will be discussed in the paper would be the Nature and the foundation of the International Law. For explaining its nature and its foundation, a key approach that has been taken is to start with giving the description of the International society. Here is a brief section of how it would be discussed in the paper. The Relations between states are so steady, voluminous, and intense that mankind has created an international society. Like all societies, it requires regular and predictable behavior of its members for coexistence and continuing survival. In brief, the international society needs social order. In organizing the society, dangers to its order must be anticipated and controlled. They can come from many sources. Two of them are of particular importance and inherent in any society. One is that no member of the society has an adequate overview of the social results of his own behavior or that of others. Guidance is needed to render social behavior harmless to the social order. Another danger is that the supply of some resources is always inadequate to satisfy every member's demand. Competitive strife could threaten the very existence of the society. There must be social decisions about the distribution of scarce resources and its regulation. This guidance of social behavior and the allocation of resources are undertaken by the political system, for the maintenance of social order is its foremost task. There are many types of political systems, which is to say that there are many ways in which guidance of social behavior and the allocation of resources can be decided and achieved. But two aspects are fundamental to all political systems. One is that power--the ability to influence behavior--is the main means by which the political system directs behavior and allocates resources. The other is that law is always one form in which political decisions are firmed and perpetuated. Law translates political decisions into binding instructions to the society's members about how to behave. This dependent relationship of law to politics has important consequences. Another thing that will be discussed in the paper will be Law and Politics. A brief introduction of how this portion will be discussed in the paper is as follows: One consequence is that the inadequacy of the contemporary political system to maintain social order reliably is necessarily reflected in the law. The insistence of states to be sovereign, i.e., to be their own ultimate authority in determining their behavior, disables the law to perform its ordering function most efficaciously. The immediate cause of this weakness is the diffused, horizontal distribution of power among states. The institutions that maintain an efficient legal system in national political systems are lacking. There is no central government, no formal legislature, no executive, and no fully developed judiciary, because sovereign states aim at performing all these functions for themselves and, if possible, for the entire society. Another consequence is that international laws, like all laws, mostly represent a prevailing power constellation in the society. Law as the embodiment of a political decision reflects the victory of the more powerful state, a balance of power, or, more rarely, agreement based on common interests. International law is not an abstract body of eternal, rational, and ideal norms. Nor is it necessarily a translation of justice into norms for the behavior of states (making differing moral values among states relatively irrelevant). It is a set of rules to provide endurance and stability to the behavior patterns states are choosing for their relations. It is affected by the changing interests motivating states, by shifts in power between them, and by variations in the methods they employ in their interaction. Above all, international law is an instrument for reaching the goals of individual states. And, because states have chosen to make sovereignty their highest international goal, the legal principles guaranteeing it are commonly accepted by all states, though their application is controversial. 1 This insistence upon sovereignty is related to yet another consequence. While sovereignty is the objective basis of independent statehood, nationalism is its emotional foundation. It places the state at the apex of social values among all peoples of the world. Maintenance of the independent state becomes therefore the first priority of the international political and legal systems. States value the international society's welfare only in proportion to the contribution of that society to their own welfare. International law therefore commands support from states to the extent that they perceive it at least not to be against their welfare. IS INTERNATIONAL LAW "REAL" LAW? Lastly, the final section of the paper will be arguing on the International Law being regarded as the Real Law. The effects of the political system on the nature of international law and the international legal system have raised the question whether international law is "real" law at all. A number of arguments have been made in favor of a negative answer. There is an absence of a central authority and other legal institutions from which laws could formally emanate. Law is made dependent upon states as lawgivers, interpreters, and executors that are themselves subject to the law. There can be no disinterested, objective definition of law violations and application of sanctions against violators. The arbitrary use of force among states, the worst form of disorderly behavior, continues, testifying--so it is claimed--to the absence of legal controls. The general response to these arguments is that they rest upon a possible, but not the only possible, definition of law. All can be answered specifically. If, for instance, sanctions are defined not merely as coercion but more broadly as disagreeable consequences, then disorder following illegal behavior, a critical public opinion, and loss of respect are all sanctions. The North Atlantic Coast Fisheries Tribunal of Arbitration (1910, p. 167) said that sanctions are, for instance, "appeal to public opinion, publication of correspondence, censure by parliamentary vote, demand for arbitration with the odium attendant on a refusal to arbitrate, rupture of relations, reprisal, etc." Obviously, sanctions cannot be of the kind usually applied to persons in municipal law. They lie in the political arena, and states try to avoid being so penalized. Other points in the arguments rely upon a standard not applied to municipal law; respectively, the "shortcomings" can also be found in national legal systems. Municipal customary law also has no formal legislator. Lawgivers within states are also subject to the laws they give. When a comparison is made between states on the international level and social entities (such as a government or an official agency) on the national level, the two kinds of laws become even more similar. There are few sanctions against a misbehaving legislature, executive, or judiciary when they act in their official collective capacity. Many arguments against international law assume too narrow a function of international law. Law can serve as a signpost and means of communication, instructing its subjects what interests are legitimate, what behavior is expected, what are the values of the society. Frequently in this debate about the legal nature of international law, either the man-made, utilitarian quality of law is ignored, or its widely recognized weakness is confused with a lack of legal character. The debate is no longer acute. There is no serious denial that international law is legal law. More important, states without exception act in the conviction that their behavior is bound by international law. The Permanent Court of International Justice (in existence 1921-1946) expressed far-reaching consensus among states when it declared in the Lotus case (1927, p. 18) that "international law governs relations between independent States." The Court went further and referred to the consent of states as the foundation of international law: The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of a common aim. www.ejil.org/journal/Vol12/No2/120269.pdf Reference: 1. Kaplan, Morton, and Katzenbach N. deB, 1961. The Political Foundation of International Law. New York: John Wiley & Sons www.ejil.org/journal/Vol12/No2/120269.pdf Read More