Is International Law Really Eligible - Literature review Example

Is international law really "Law"? Law is used to describe multiple processes in society and nature, generally relating to systems of government. That society relates the fundamental operations of nature, such as the law of gravity, semantically to the operation of its own internal affairs in the production of legislation through politics, is reflective of the influence of John Locke and the natural law tradition on enlightenment thinking in the fundamentals of democracy and the very basis of the modern nation-state. However, when the question is asked if international law is really “Law,” the intention is not to essentially inquire as to whether or not international law is actually natural law, for this cannot be proven even by adherents of the natural law tradition. International law is based on expediency between nations and contracts, as in treaties or trade agreements that operate formally on an international level between countries and their citizens mutually. In addition to these types of expedient agreements, there exists also a corpus of idealistic international law that is best represented by international organizations and their membership charters, as well as the declarations of human rights and other specific rights of women, children, and minorities that these constituencies have produced. When asking whether or not international law is really law, the question revolves around the actual legitimacy of the process through which these agreements were created, via legislature or counsel of a minority of representatives from a select group of nations, but more specifically, as to whether any legitimate structures exist that can comply adherence to the standards of international law through enforcement measures. In summary, the main aspect of the question goes to the heart of enforceability in international law, and whether the sovereignty of the nation-state as it relates to domestic autonomy can ever be overcome by organizations like the UN. As M.W. Janis wrote in Introduction to International Law, “There is a root problem faced by those who practice international law. The problem is so fundamental that it is often assumed rather than analyzed. It stems from the fact that the world is broken up into tens of independent nation-states, each purporting to provide certain essential human services - e.g. defense-education, law, more or less exclusively to the people living within that state's boundaries. Insofar as a nation-state is thought to alone provide such services, we think of it as sovereign. The nation-state political system and the notion of sovereignty impact on most every aspect of human activity. Look at their effect on the idea of law. Taken to an absolute point, the notion of sovereignty might imply that the only extant laws were those of nation-states.”1 In simplest terms, the violation of the borders of one nation-state by another is considered an act of war. International law governs the legality of invasions and self-defence among nations based in agreement such as the Geneva Conventions and other treaties on the use of weapons. It is regarded as paradoxical to apply law to war, even in the conduct of armies, as technically war is a state emergency and a fight for survival where both sides may be expected to do anything to win militarily. As history recognizes that the victor will determine the way the terms of the battle are recorded for posterity, it also acknowledges that the winning side in war will dictate the terms of the peace to the defeated. Furthermore, political regimes change domestically, and international law is as full of broken treaties as civil law is of broken contracts. Yet, people rarely ask if contract law really exists in the same manner that they question international law. For the most part, this is due to the fact that civil courts are recognized authorities in society, and their ability to enforce contract law is taken for granted, or understood within an expectation of risk management. The lack of supra-national authority with the powers of enforcement for international law, for example at the United Nations or regional organizations of nations like ASEAN, the EU, the African Union, and Organization of American States, and the lack of an international police force and court, all point to the weakness of international law. The larger question is whether this apparent weakness makes international law non-existent, or merely operating at the whim of sovereign powers and as the means through which dominant states force their will on weaker sovereigns. In International law aspects of the European Union, Martti Koskenniemi writes: “An examination of the standard texts on public international law on the issue of the relationship between international law and municipal (or national) law highlights the traditional dichotomy between monism and dualism. According to the former doctrine, international law and municipal law are part of a single legal order, invariably perceived in hierarchical terms, with the result that international law is automatically incorporated into municipal law and available for application in the municipal sphere. In contrast, the latter doctrine postulates the separation of the international and municipal legal systems with the consequence that international law is not automatically incorporated into municipal law, its application within the municipal sphere being, rather, dependent on some form of municipal act of adoption.”2 Monism views international and national law as a single unity in legal theory, and this example is supported in theory in the U.K. and the charters of many other nation-states. However, its implementation is almost invariably left, by the nature of the sovereign nation in international law, to the interpretation of the political regime currently in power on the domestic side. Thus, the dualist view positions national and international law as separate entities, and from this comes the concurrent criticism of the lack of enforceability in the higher system. Dualism can also be seen in some aspects of the division between Public International Law and Private International Law. Public International Law may have specially organized justice systems such as the International Court, or the UN and European Human Rights Commissions that have a certain defined authority to hear and decide upon cases based on international law as drafted by the treaties and charters of multi-national agreements. Private International Law may often reside as a specialization within local municipal law, and may vary from nation to nation in implementation lacking a standardized body of international standing at a central level. As Charney writes: “In this shrinking world, states are increasingly interdependent and interconnected, a development that has affected international law. Early international law dealt with bilateral relations between autonomous states. The principal subjects until well into this century were diplomatic relations, war, treaties and the law of the sea. One of the most significant developments in international law during the twentieth century has been the expanded role played by multilateral treaties addressed to the common concerns of states.”3 The standard view engrained in international law from centuries of experience is that treaties are like contracts between nations, and binding until one or the other parties withdraw, or the treaty expires due to a pre-determined time pattern or other clause fundamental to the document. Multi-national treaties operate in the same manner as bilateral agreements in this view, and the sovereignty of the domestic operation of the nation-state can only be technically violated by agreement in written treaty, otherwise may be viewed as an act of war. As Horton writes, “Historically the Legal Advisers have taken the position that all treaties that are ratified by the United States are binding on the United States on the international plane, but that non-self-executing treaties are not enforceable in a U.S. court unless there is federal implementing legislation.”4 This is the classic example of the non-existence of international law. The United States has ratified the United Nations Universal Declaration of Human Rights, a multi-national agreement technically similar to a treaty as a binding agreement between nations after formal ratification. The U.S. Congress has ratified the UDHR officially, and according to its constitution, a ratified treaty is a binding aspect of domestic case law, an argument supporting the monist view of law. However, as Horton notes, in practice, unless the U.S. Congress explicitly passes a law adding the UDHR in its entirety to the corpus of existing legislation, it remains technically “off the books” and attorneys cannot appeal to the UDHR at any level in the U.S. domestic legal system. Thus, even while having ratified the UDHR as a formal treaty, it is non-existent in application on the domestic level and there is no international body with the authority to compel enforcement outside of the UN Security Council, on which the U.S. also serves as a veto-wielding power. As such, there is neither domestic applicability nor even the existence of the UDHR as law in the municipal, State, or Federal courts of the U.S. Neither is there official international accountability, leaving the U.S. effectively “unbound” by international law and free to act as the sole global superpower on the basis of its military power. The consequences of this can be seen in the Iraq war and the Bush Administration’s policies on torture. John Bolton was famously appointed as the Bush Administration’s United Nation’s representative during a time when the neo-conservatives in America wanted to seize the geo-political opportunities seen to have arisen with the end of the Cold War and America’s existence as the sole global superpower. Most American foreign policy is traditionally based on the theory of wielding power in a way that benefits self-interest, and it is expected that all nations will act in the same manner. This is what gives international law its chaotic and untenable structure, as political whims change bringing different ideologies to power across different nations, what was once accepted as an accord between nations can swiftly change. The Bush Administration arrived with a goal of exploiting the power vacuum left by the collapse of Cold War strategic relationships, and needed to subvert UN authority as the main obstacle to hegemony. Bolton published two influential essays, Is There Really Law in International Affairs (2000) and The Risks and Weaknesses of the International Criminal Court from America's Perspective (2001) which expressed the Bush Administration’s view that America was entitled to wield absolute power with unbridled authority, unbridled at least by the restraints of traditional international law. As such, Bolton represented a movement of neo-conservatives to renegotiate the fundamentals of international agreements to the favour of American military and economic self-interest at arguably the height of the nation’s power. As Bolton writes: “In the aftermaths of both World War I and World War II, the United States engaged in significant domestic and political debates over its proper place in the world. President Wilson's brainchild, the League of Nations, was the centerpiece of the second... Neither the debate over the League nor the one over the United Nations settled the issue of America's proper relationship with other governments and international organizations.”5 These essays set the mocking and disdainful attitude that the Bush administration was to show in withdrawing, subverting, and circumventing innumerable international conventions in the aftermath of the 9/11 attacks. Yet, this was not a new or recent theme for neo-conservatives, but one that has been a favourite of the Republican Party since the Reagan era. The arrogant and disdainful attitude is also seen in the conservative writing of the jurist D’Amato in 1985: "Many serious students of the law react with a sort of indulgence when they encounter the term 'international law,' as if to say, 'well, we know it isn't really law, but we know that international lawyers and scholars have a vested professional interest in calling it law.' Or they may agree to talk about international law as if it were law, a sort of quasi-law or near-law. But it cannot be true law, they maintain, because it cannot be enforced; how do you enforce a rule of law against an entire nation, especially a superpower such as the United States or the Soviet Union?”6 In Is There Really Law in International Affairs? Bolton takes the mocking criticism much further as to even doubt the existence of international law. Again, it must be noted, he is arguing the client’s motive, which for America at this time was to be the unlimited expression of power in reaction to the 9/11 attacks. If the Soviet Union no longer existed as a threat, international organizations and binding international law as represented by the International Criminal Court could be seen as the greatest threat to America’s political and military might, as the only real force that might substantively check it non-violently in accord with global opinion in civil society, which the Administration was clearly out of touch with and in no interest of pandering to politically. The example goes to the danger of the strongest of the nation-states, or cartels of alliances between States that bring them to the standing of most-powerful, in writing and re-writing international law to their favour and self-interest. From the Bolton and Bush Administration perspective, this is precisely what nations do by nature and exactly the reason why international law is non-existent, for it is irrelevant and based only in the whim of the superpower sovereign. As Horton writes: “Neoconservative legal scholars and their allies argue aggressively that international law isn’t really law because the nations who make it–through treaties and conventions and by practice–don’t really treat it as law... Jack Goldsmith and Eric Posner argued in their 2004 book, The Limits of International Law, that international law was really just policy, that modern nation states may sign a lot of treaties and agreements but a study of their conduct suggests that they don’t feel bound by them.”7 Yet, it is not only the Bush Administration that acted in this manner; consider also the way that the U.S. acted in Bosnia & Kosovo during the Clinton Administration: “Similarly, Michael Glennon reports that former US Secretary of State, Madeleine Albright, on being told by former British Foreign Secretary Robin Cook that UK Foreign Office lawyers were finding it hard to justify war in Kosovo, replied: ‘Get new lawyers’.”8 The Clinton Administration would simply hire new lawyers to interpret international law to support their political will just in the same manner that the Bush Administration would do in hiring the lawyers who would write briefs authorizing torture, rendition, and detention in illegal, unannounced, and undisclosed prisons all around the world, as in Guantanamo Bay. When belatedly being forced to recognize the importance of the Geneva Convention when referring to Prisoners-of-War, the Administration hired lawyers who simply wrote a new policy based upon “enemy non-combatants” and “terrorists” who could be denied any and all rights by the U.S. military, and these justifications included torture, extrajudicial detention, renditions, and imprisonment without trial. In the philosophy promoted by Bolton and America at the height of its strength as a superpower, international law such as the Geneva Accords or the Universal Declaration of Human Rights does not exist when it is not advantageous for the State to refer to it. In this manner, Abu Ghraib, Guantanamo, and other illegal prisons in Afghanistan and Iraq go together with illegal wars. In Hegemonic International Law, Detlev F. Vagts writes: "The idea of hegemony has begun to work its way into the world of international law to the point where a session of the annual meeting of the American Society of International Law in 2000 was dedicated to 'the single superpower'. A new undersecretary of state, John Bolton, while still at the American Enterprise Institute, wrote in an article entitled Is there Really 'Law' in international Affairs? that we 'should be unashamed, unapologetic, uncompromising American constitutional hegemonists.'"9 Jack L. Goldsmith and Eric A. Posner further represent this trend in American jurist thought with their book, The Limits of International Law. The monopolistic and totalitarian threats inherent in hegemony are based in the very same policy Bolton and previous statesmen have posited that international law is only respected by the nation-state sovereign reluctantly, when forced to, and most importantly, when it is in the way the ruling party perceives national self-interest. Harper’s Magazine published a recent interview with Michael P. Scharf which follows these trends in the illegality of the Bush, Bolton, and neo-conservative drive to shed the limits of international law from State power. As Scharf states, “Goldsmith and Posner, along with University of California Berkeley Law Professor John Yoo, were part of a group of scholars whose self-proclaimed agenda was to convince government officials, political elites, and the general public that it is permissible for policy makers to ignore international law whenever they perceive it to be in their interest to do so, especially in the context of the war on terror. After the 9/11 attacks, a small cabal of government lawyers, which included John Yoo, then an assistant deputy attorney general in the Office of Legal Counsel, formed what they called ‘the War Council.’ The War Council drafted a series of legal memos, now known as the ‘Torture Memos,’ that opined that international law did not prevent the government from detaining suspected terrorists indefinitely without judicial process, sending suspected terrorists to CIA black sites for interrogation, or employing extraordinary interrogation techniques such as waterboarding. John Yoo has admitted that the War Council cut out the State Department Legal Advisor from the ‘clearance’ process because it anticipated that the Legal Adviser would issue contrary conclusions about the legality of these proposed tactics.”10 In showing the consequences of the Bolton view of international law in illegal wars, torture, indefinite detentions on terrorism charges in undisclosed locations, and other human rights violations, it should be noted that this is to be expected. Just as in civil and business law, corporations and individuals attempt to hire the best lawyers who will interpret existing statutes to their full benefits, and just as there are those who would use loopholes in existing laws for personal profit, so too are there to be expected abuses of power and especially abuses of uncontrolled power. Yet, none of this goes to prove that international law does not exist, but rather than agents like Bolton and the Bush Administration can ignore and disdain international conventions if in possession of sufficient military force and economic power to quell dissent and force consent. Few, however, would agree that this is an ideal or even practical system of justice, but rather an example of the victor running away with the spoils. As Gerry Simpson writes in The War in Iraq and International Law (2005), “For many, international law is the last best hope on earth — the most powerful tool in the fight against poverty, oppression and Great Power arrogance. We who teach international law sometimes forget what it symbolises. We analyse it, we disclose its flaws, we enjoy the comfort of critique and we berate its lack of realism. Sometimes, though, international law requires us to be loyalists rather than critics. My other insight was that international law exists in a particular context. It is not some free-floating set of ideas or institutions to be judged and rearranged in the abstract. It is situated at the heart of the great political and moral debates in which we must continue to engage. It reflects them and is reflected by them. More than this, international law derives its capacity and meaning from the international system of which it is part. Another way of putting it is to say that international law is only as good as the international society in which it finds itself.”11 In this manner, it is legitimate to criticize the view of Bolton and the Bush Administration for denying the validity of international law and international organizations by developing the policies that circumvented some of the strongest agreements in international relations, such as the Geneva Convention and UN Charter in the Iraq invasion. This approach can be viewed as criminal, rather than correct, when the facts are arranged differently and power constellates on other factors. Where the criminal may be ignorant of the law, it is more likely for him/her to be arrogant and disdainful of it for a reason, to transcend it and profit from the transgression, as in theft, rape, or murder for gain. The criminal may feel that the law does not exist or that he/she is above it; however the main proof of the law in this instance is enforceability. Harold Hongju Koh addresses this point from another perspective: “In each of these legal lives, as a scholar and a lawyer, I have asked the question that titles this Lecture, namely, ‘How is International Human Rights Law Enforced?’ I wouldn’t be surprised if many of you hearing that question were to give a pessimistic answer: international human rights law is not enforced, you might say. Just take a look at the massive human rights violations in Bosnia, violations that have gone unredressed in Cambodia and Iraq; the continuing crises in the Congo, Sierra Leone, Algeria, and Burundi. Look at indicted war criminals, like Radovan Karadzic in Republica Srpska, who continue to flout the jurisdictions of the Bosnian war crimes tribunal. Look, you might say, at the world's willingness to overlook human rights violations committed by more powerful nations, such as Russia’s activities in Chechnya, or China’s continuing repression after Tienanmen Square. International human rights law is not enforced, you might say, because human rights norms are vague and aspirational, because enforcement mechanisms are toothless, because treaty regimes are notoriously weak, and because national governments lack the economic self-interest or the political will to restrain their own human rights violations. So if the question is ‘how is international human rights law enforced?’, many of you might answer: ‘not at all, or hardly at all.’ If you hold to this common, skeptical view of human rights enforcement, you would say that international human rights law is not enforced, like ‘real’ domestic law; instead, it is only occasionally ‘complied with,’ by nation-states acting out of transparent convenience or self-interest.”12 Koh continues his criticism in establishing that just as law may go selectively unenforced in some situations in civil society, due to lack of police resources, for example, or lack of awareness of the perpetrator. Yet, however ineffective and weak, he says there is an enforcement process which he states is “a complex, little-understood legal process that I call transnational legal process.”13 Thus, Bolton and the Bush Administration may have been hinting at the weakness and lack of existence inherent in the status quo of international law in the present context, because politically they wanted to subvert its ability to check American power internationally, a self-described motivation born of self-interest. This does not completely discredit or eliminate the opposite view, but in fact leads through its example of illegality to a greater push internationally to bring the sovereign under the control of supra-national enforcement bodies, and to empower the latter with enforcement powers. In this manner, one can view international law as a constructed law, with a historical process of becoming rooted in the work, dedication, and careers of individuals who bring it into being. The lawyer can argue any topic from his/her direction in order to represent the client’s interest. He or she can also work actively to bring international law into being. As to the question of how a superpower State can be brought under the control of a supra-national organization without its consent, the answer may be that outside of its domestic populace, it cannot be done other than through war or sanctions. This establishes enforcement as an always inherent aspect of international law, whether or not it is actually evident. A prime example of the debate over the power of supra-national order and justice on the conduct of superpower and all nation-states equally, as is required for efficient and rational justice, is the movement to found the International Criminal Court and to bring all nations under its power. This is one of the main issues resisted by Bolton and the Bush administration neo-conservatives as they drove to weaken the check that international bodies retained on American sovereignty and military power. As Ruggie writes: “Human rights provisions, in contrast, concern the most intimate of ‘internal’ political relations: that between a state and its citizens. And the ICC may prosecute individuals, if their own state fails to act despite good cause, who are accused of genocide, crimes against humanity and war crimes, not only if they are nationals of signatory states, but also of non-signatory states if the alleged crime is committed in the territory of a state that has ratified the ICC statute. Thus, it represents a step towards universal jurisdiction. The world of global governance is not necessarily more ‘democratic’ as a result, though it has become more pluralistic. Moreover, vast asymmetries of power remain in place – among states, between states and the new actors, and between the corporate sector and civil society. But equally, this new global public domain should not be viewed as existing only somewhere ‘out there,’ an adversary of or substitute for states. With respect specifically to the United States, its own social and political institutions – not only civil society and the corporate sector, but also the courts and governmental agencies – are intimately involved in its propagation and every day functioning. That is why the pursuit of American exemptionalism – easy enough to conjure up as an ideological desire – is increasingly difficult to achieve in practice.”14 The ICC is an example of the enforceability that Bolton says is lacking in international law, yet it is a circular logic, for it is only lacking because the super-power sovereign refuses to accept it. Therefore, in summarizing the question of whether international law is truly “Law,” it is clear that international law is a constructed social process of power negotiations that involve a struggle to build enforceability historically. SOURCES CITED: Bolton, John R. (2000), Is There Really Law in International Affairs, 10 Transnat'l L. & Contemp. Probs. 1, 2000, Web, viewed 09 January 2011, . Bolton, John R. (2001), The Risks and Weaknesses of the International Criminal Court from America's Perspective, Law and Contemporary Problems, Vol. 64, No. 1, The United States and the International Criminal Court pp. 167-180, Winter, 2001, Web, viewed 09 January 2011, . Brierly, J.L. (1963), The Law of Nations, Oxford University Press, 1963, PDF, viewed 09 January 2011, . Brownlie, Ian (2008), Principles of Public International Law - 7th edition, Cambridge: Oxford University Press, 2008. Charney, Jonathan I. (1993), Universal International Law, American Journal of International Law, Vol. 87, 1993, Web, viewed 09 January 2011, . D'Amato, Anthony (1985), Is International Law Really Law, Northwestern University Law Review, 79 Nw. U. L. Rev. 1293, 1984-1985, Web, viewed 09 January 2011, . Dixon, Martin (2007), Textbook on International Law - 6 edition, Cambridge: Oxford University Press, USA, 2007. Dugard, John (2006), International law: a South African perspective, Kluwer, 2006, Web, viewed 09 January 2011, . Goldsmith, Jack L. & Posner, Eric A. (2005), The Limits of International Law, Cambridge: Oxford University Press, USA, 2005. Horton, Scott (2010), Is International Law Really Law? —Six Questions for Michael Scharf, The Harper's Magazine Foundation, 2010, Web, viewed 09 January 2011, . Ikenberry, John (2005), The Limits of International Law, Foreign Policy, March/April 2005, Web, viewed 09 January 2011, . James, C (2010), Scope of Private International Law, International Law, 7/11/2010, Web, viewed 09 January 2011, . Janis, M.W. (1984), International Law Introduction to International Law, 16 Conn. L. Rev. 897, 1983-1984, Web, viewed 09 January 2011, . Koskenniemi, Martti (1998), International law aspects of the European Union, The Hague: Martinus Nijhoff Publishers, 1998, Web, viewed 09 January 2011, . Koh, Harold Hongju (1998), How Is International Human Rights Law Enforced?, INDIANA LAW JOURNAL Vo l. 74:1397, 1998, Web, viewed 09 January 2011, . Koh, Harold Hongju (1998), Is International Law Really State Law?, Harvard Law Review, Vol. 111, No. 7, 1998, Web, viewed 09 January 2011, . Lowe, Vaughan (2007), International Law, Cambridge: Oxford University Press, 2007. Lowe, Vaughan (2009), Law of treaties, Extracts from The Work of the International Law Commission, 7th ed., vol. 1, Codification Division, Office of Legal Affairs, United Nations, 2007, Web, last update: 19 January 2009, viewed 09 January 2011, . Ruggie, John Gerard (2003), “American Exceptionalism, Exemptionalism and Global Governance," Regulatory Policy Program Working Paper RPP-2003-20, Cambridge, MA: Center for Business and Government, John F. Kennedy School of Government, Harvard University, 2003, PDF, viewed 09 January 2011, . Shaw, Malcolm N. (2008), International Law - 6 edition, Cambridge University Press, 2008. Simpson, Gerry (2005), The War in Iraq and International Law, Melbourne Journal of International Law, Vol 6, 2005, PDF, viewed 09 January 2011, . Vagts, Detlev F. (2001), Hegemonic International Law, The American Journal of International Law, Vol. 95, No. 4 pp. 843-848, 2001, Web, viewed 09 January 2011, . Read More