International Law in the Contemporary World Arena - Essay Example

 Modern recognition of customary international law is based in the charter agreement for the International Court of Justice enacted during the founding of the United Nations as well as the de facto operation of nation-states historically, the document itself “reflecting State practice,” as M.E. Villiger writes in Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources.1 Article 37 of the Statute of the International Court of Justice states, “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”2 The frameworks of international law existing before the Second World War were based in the League of Nations as a forum for resolving issues among nations civilly through discourse at the international level, and traditionally this era is viewed as one in which the League lacked any formal means to enforce decisions related to violations of international law outside of the voluntary agreement of sovereign nations themselves. The League of Nations had a “Permanent Court of Justice” for judicial hearings of matters related to international law that functioned in a similar manner to the International Court of Justice of the UN. “The establishment of the Permanent Court of International Justice (PCIJ), the predecessor of the International Court of Justice, was provided for in the Covenant of the League of Nations. It held its inaugural sitting in 1922 and was dissolved in 1946. The work of the PCIJ, the first permanent international tribunal with general jurisdiction, made possible the clarification of a number of aspects of international law, and contributed to its development. Between 1922 and 1940 the PCIJ dealt with 29 contentious cases between States, and delivered 27 advisory opinions.”3 In both the instances of the PCIJ and the ICJ, the constructed nature of international law is evident, as both courts operate with authority and jurisdiction established through the charters of the associated international organizations, the League of Nations and the United Nations. Thus, in joining the larger, international organization, the States themselves agree to the terms and the limitation of sovereignty inherent in the organizations, as well as being bound by the international courts and their enforcement process. However, these organizations must coexist with the a priori of both customary international law and the sovereignty of the nation state domestically, and the traditions may occasionally conflict on matters of interpretation. As Article 38 of the ICJ Statute states: 1. “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”4 Within this framework, the charters of the UN and League of Nations can both be classified as “international conventions” under Article 38:1a of the agreement and customary international law. Customary International Law (CIL), as evidenced by “general practice accepted as law,” is established as a separate body of legitimacy in Article 38:1b. What follows in the clause is the inclusion of a general consensus of civil rights and the recognition of international jurists in the logic and argumentation fundamental to the court. The organization of the ICJ and the UN is built on the lessons learned from the League of Nations, but this does not guarantee that the problems of enforcement and jurisdiction have been solved in practice in modern law. As AE Roberts writes in Traditional and Modern Approaches to Customary International Law: A Reconciliation: "The Statute of the International Court of Justice describes custom as 'evidence of a general practice accepted as law.' Custom is generally considered to have two elements: state practice and opinio juris. State practice refers to general and consistent practices by states, while opinio juris means that the practice is followed out of belief of legal obligation."5 Fundamentally, this organizational structure is bound to lead to a situation where a nation-state seeks to object to an aspect of international law, either out of reference to traditional customs of behaviour between nations, a differing interpretation of statue, or self-interest driven policies of administration. For example, consider the International Criminal Court (ICC) in the context of the PCIJ & ICJ. As John Bolton writes, "The Clinton administration initially signed the ICC's founding document, the Rome Statute, in June 1998, but there was no prospect that the Senate would ratify it. The Bush administration unsigned the treaty and entered into more than 100 bilateral agreements with countries to prevent our citizens from being delivered into the ICC's custody. To date, the ICC has proceeded slowly, partly in the hope of enticing the United States to cooperate with it, and the Bush administration succumbed to it in its final years... The Obama administration's willingness to submit U.S. conduct to international judicial review also extends to the concept of ‘universal jurisdiction,’ which permits even countries utterly unrelated to an event to initiate criminal prosecutions regarding it."6 When the world’s leading superpower refuses to be bound by the “universal jurisdiction” of the ICC, the question legally relates to the status of the Rome accord. More broadly, where enforcement is by nature based in the ability to coerce, capture, or overpower in forcing consent and punishment, there are major questions that arise from the inequality of power as related to the size of military and economic force as it is distributed globally. International law is structured in a way that allows the strong to rule even if the action of a State is contra justice, as in Nicaragua vs. the United States (1986). Understood collectively in global civil society, enforcement of minority views against a superpower is difficult because other nations are not willing to sacrifice their national interests in a conflict to demand justice. That the superpowers can also veto enforcement activity in the United Nations Security Council is only one aspect of this, symbolic of the more fundamental ways that international law is negotiated by force. In Nicaragua v. United States of America (1986), the United States refused to recognize the authority of the ICJ (and thus the UN), despite clearly being bound by its jurisdiction since the inception of both bodies: “10. By a letter dated 18 January 1985 the Agent of the United States referred to the Court's Judgment of 26 November 1984 and informed the Court as follows: 'The United States is constrained to conclude that the judgment of the Court was clearly and manifestly erroneous as to both fact and law. The United States remains firmly of the view, for the reasons given in its written and oral pleadings, that the Court is without jurisdiction to entertain the dispute, and that the Nicaraguan application of 9 April 1984 is inadmissible. Accordingly, it is my duty to inform you that the United States intends not to participate in any further proceedings in connection with this case, and reserves its rights in respect of any decision by the Court regarding Nicaragua's claims.'”7 The summary of this case is that neither international organizations, international law, nor supra-national judicial organizations can stop a superpower from mining harbours or conducting covert activity in another country, itself free under international law to determine its own self-interest with the absence of foreign interference, if the superpower’s domestic administration refuses to accept the decision of the international consensus and there is no strength in the international community to confront the superpower through sanctions. This represents a failure of international law and points further to the fact that there is no consensus for reform related to this aspect of the law. Yet, the lack of will to enforce or oppose hegemony may be both constructed and coerced by the same superpower unwilling to comply with international obligations in order to create a false consensus in the international sphere of relations. In this manner, force merely masquerades as law and justice. The way international law is structured highlights the difficulties involved with protecting human rights as guaranteed in international protocols and conventions. The violations may occur through actions made by agents of a State, organized and funded with the veil of national sovereignty. Accord-enforcing nations are limited to technical issues of economic sanctions or organizing an international military force to end the violations of human rights. This example is seem repeatedly in Iraq, North Korea, Iran, Israel, South Africa, the United States, and other nations that act outside of consensual understandings of international law and provoke an enforcement approach to violations. The ICJ appeals to a globalized or international view of justice at its basis, but is limited to the domestic agents of sovereign nation-states to enforce it through their foreign policies, which may by nature be less than altruistically motivated. In this manner, strong States can commit violations of international law with relative impunity, representing the primary danger of the global system as it is structured both currently and historically. For scholars, this represents the inherent dilemma of the nature of international law and the crux of the issue as to whether or not it can be said to exist at all in practice when seen only as a by-product of the self-interest of power. Thirlway writes in 'International Customary Law and Codification': "The fact that the practice is 'against interest' gives it more weight than the mere acceptance of a theoretical rule in the course of discussion by State representatives at a conference, and considerably more weight than the assertion of such a rule... Claims may be made in the widest of general terms; but the occasion of an act of State practice contributing to the formation of custom must always be some specific dispute or potential dispute. The mere assertion in abstractio of the existence of a ... legal rule is not an act of State practice... (S)uch assertions can be relied on as supplementary evidence both of State practice and of the existence of the opinio juris."8 In this manner, the declarations of human rights, rights of the Woman, and the Child, etc. are clearly shown to be of the nature of international conventions and not CIL. Human rights activists can argue in many instances State practice contravenes what is considered to be the legal obligation of a government to its people or to actual conventions the State has agreed to internationally, yet cannot stop or assist in the matter formally, lacking the resources required to exact enforcement, even following a positive ruling in a world court like the ICJ or ICC. This points to the challenges of constructing a framework for international law, and that the system only exists to the extent that it is maintained by the organizations of international justice. Case histories show the dichotomies inherent in this structure, as well as the dangers to civil society of allowing force to create law de facto. Conversely, as Michael Byers writes in ‘Custom, Power and the Power of Rules: International Relations and Customary International Law’: "Although all States are equally entitled to participate in the customary process, in general, it may be easier for more 'powerful' States to behave in ways which will significantly influence the development, maintenance or change of customary rules. Such States may also have more opportunities than less powerful States in which to do so."9 This view is also important to the foreign policy doctrine of nations like the U.S., Britain, and E.U. nations, namely that the promotion of “progressive” policies related to the international recognition of civil rights can be aligned with “self-interest” as it governs foreign policy. Yet, most agree it does so only partially and at best reluctantly, when compared to the corrupting influences of profit and power found in government institutions domestically worldwide. Thus, the conclusion is that this manner of enforcement is regarded as being governed by the universal aspects of justice and altruism, but in practice can be too easily corrupted by human nature when individuals in the system are confronted with the benefits minority interests can reap through wielding public resources unequally. The conflict of these influences politically can be seen as repeating patterns within both the context of international and domestic organizations globally across the 20th century. Martin Dixon writes on the utilitarian nature of this aspect of international law: "In assessing whether a customary rule has come into existence, special weight may be given to the practice of those states whose interests are specifically affected by the subject matter of the rule (North Sea Continental Shelf Cases). For example, the practice of major maritime powers will have more significance in the formation of rules of rules on the law of the sea than, for example, that of landlocked Austria. It is not that some states are necessarily 'more important' or more powerful than others; it is, rather, that some states will be directly affected by certain rules and thus their practice is more significant. Indeed, in some cases, it may be that complete local uniformity is required among a group of specially interested states before a rule can develop binding that group."10 In looking at international law from a practical standpoint, rather than a moral perspective, the utilitarian force governs the extent and nature of statues and regulation. This law exists, according to the argument, because it is necessary, and thus it is natural for maritime powers to establish consensus through their behaviours. From this, the other examples of military law, corporate law, immigration law, etc. are drawn from their implied pragmatic requirements. While this view may be consistent with a materialist technocratic viewpoint, it carries little place for idealism. A.E. Roberts "adopts Anthony D'Amato's distinction between action (state practice) and statements (opinio juris).” She concludes, “Thus, actions can form custom only if accompanied by an articulation of the legality of the action."11 The confluence of legal statements, legal opinions, official judgments, and a sense of legal obligation in opinio juris make it highly open to interpretation by legal departments governed by the intent to prove their employer’s self-interest as just, or at least indicative of and non-conflicting with established legal precedent, as required by law for operation. Similarly, through this view, history can be seen as an unformed mass of legal precedent that can be used to formulate any justification, whenever required, for State behaviour based upon customary law. The problem only arises when a nation-state decides to exert its sovereignty in a manner that violates the consensus, or unilateral interests of another sovereign nation, or other adherents to the customary requirements. Villiger identifies “persistent objectors” and “subsequent objectors” with reference to the position that the nation-state adopted when the provision of customary law was first established as consensus.12 Persistent objectors are those States who have opposed a provision of international law from its inception, such as border disputes between the Koreas, India and China, or other countries. In many cases, international custom may be significantly open for discussion and interpretation, as in the example of the prior independence of Tibet and the country’s borders. Persistent objectors have always objected to and protested, formally or informally, interpretations of international customary law that go against their experience, self-interest, and interpretation. Subsequent objectors develop a change in position at a later point in the development of the question or issue involved. Villiger quotes Akehurst on the importance of persistent objection in international law: "The notion of persistent objection remains the essential view of the structure of the State community. If states are the law-creating subjects of international law, they may, for reasons of their own, in casu and for themselves, opt out of the law-making process. There is no majority rule in the formation of customary law. Since all States are involved in the law-creating process, newly independent States must also have the option to object as from the date of their emergence as new States. The framework of the UN or of diplomatic conferences changes little in this regard, since the respective bodies have no legislative function sensu stricto and remain congregations of State representatives. To negate the possibility of persistent objections would be to overlook the sovereignty and equality of the States, and, not least, to aggravate the socio-economic rifts in the international community."13 As customary international law is created through the actual behaviour or actions of nation-states exercising the freedom of sovereignty, the ability to “opt-out” or object to a ruling is fundamental. How this will be judged by contemporaneous civil society and history may be for or against the position held by the nation-state, or a combination of both, as in schools of historical interpretation that are diverging. Politically, it is the power of a nation-state economically or militarily that determines whether its objection is in accord with the consensus of international law. In ideological or micro-state driven conditions of protest, the ability to “opt-out” and maintain a separate interpretation is tolerated to the extent that it does not provoke a more powerful unilateral or multi-State response against it or a supra-national organization to target it through sanctions, etc. Moral views such as those behind the sanctions against South Africa, for example, were effective over a longer term in achieving their goals but other sanctions, such as those targeting the Iran and North Korean nuclear programs, have failed objectively in international politics. Bradley & Gulati of Duke University Law School write on the difference between treaty-based law and customary international law when it comes to the ability of the individual sovereign to object: “Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to unilaterally withdraw from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (‘CIL”), a proposition that we refer to as the ‘Mandatory View.’ It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL... We find that many international law publicists of the eighteenth and nineteenth centuries thought that CIL rules were sometimes subject to unilateral withdrawal, at least if a nation gave notice about its intent. We also find that the Mandatory View did not come to dominate international law commentary until sometime in the twentieth century, and even then there were significant uncertainties about how the Mandatory View would work in practice. Moreover, we note that there are reasons to question the normative underpinnings of the shift to the Mandatory View, since it appears to have been part of an effort to bind ‘uncivilized’ states to the international law worked out by a small group of Western powers. After reviewing this history, we draw on theories developed with respect to contract law, corporate law, voting rules, and constitutional design to consider whether it is functionally desirable to restrict opt out rights to the extent envisioned by the Mandatory View. We conclude that, although there are arguments for restricting opt out in select areas of CIL, it is difficult to justify the Mandatory View as a general account of how CIL should operate.”14 The Mandatory View of customary international law implies that there is no escape, and thus no ability for the smaller and less-powerful States to pursue their autonomy of self-determination outside of hegemony, but Bradley & Gulati show that this is not consistent with the traditional views of international law theorists but rather with the foreign policies of the States tasked with enforcing the status quo. The greatest internationalists in this manner are those who seek to gain the most from the international acceptance of the common law system, or the leadership of the organizations with the jurisdiction that command enforcement. There is always a concern in international organizations that the weaker nation-states may have legitimate issues that are not heard or addressed, either through assembly, through alliances, or the blockage by veto of the larger powers in the UNSC. The ability to “opt-out” or object does not include the ability to force compliance with a micro-view or minority position in either international politics or customary law. “Customary International Law (CIL) is in trouble. It is in trouble notwithstanding the fact that it is central to our understanding of international law, is one of the two main sources of international law, and is the primary source of universal law. In some sense, international law would not be possible without at least some norms of CIL, most conspicuously the requirement that treaties are to be obeyed. Despite its privileged position, CIL is under attack from all sides. Some scholars complain that it is incoherent, others assert that it is irrelevant or a fiction, and virtually everyone agrees that the theory and doctrine of CIL is a mess. These concerns, though not new, have taken on a more aggressive tone in recent years. The problem is aggravated by the fact that CIL is singularly ill equipped to respond. CIL has no coherent or agreed upon theory to justify its role or explain its doctrine. The old notions of natural law and consent, which were once used to explain CIL, are either no longer accepted or under-theorized (or both), and nothing has arisen to take their place. As a result, CIL stands virtually defenseless and unable to counter critiques with much more than unsupported claims about its importance. Until a foundational theory of CIL is developed, a coherent response to critics will remain out of reach and existing defenses will be unpersuasive.”15 This quote, by Andrew T. Guzman in Saving Customary International Law, suggests that far from dominating the international conventions and agreements, CIL is itself falling out of favour in legal interpretation due to the inability to properly document and interpret its scope. Guzman calls for a more fundamental articulation of CIL in order to preserve it against dominance of interpretation favouring international law constructed from conventions. Yet, this is also related to the move to view international law as mandatory and to deny to right for States to object, or “opt out” of CIL agreements. Conventions, like treaties, can be dissolved. However, doing so on a unilateral basis with reference to widely accepted accords such as the UNDHR or others would be considered an extreme political act worldwide. Thus, the majority of States remain bound by the obligations of these accords through maintaining membership in the United Nations. Only Switzerland among modern nation-states has persistently maintained its independence and neutrality from the United Nations, becoming a UN member only in 2002. Yet, the convention-based authority of UN sovereignty is related to the precedent of treaties, charters, and declarations and not customary international law inherently. As A.E. Roberts writes in Traditional and Modern Approaches to Customary International Law: A Reconciliation: “The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an increasingly significant source of law in important areas such as human rights obligations. Codification conventions, academic commentary, and the case law of the International Court of Justice (the Court) have also contributed to a contemporary resurrection of custom. These developments have resulted in two apparently opposing approaches, which I term “traditional custom” and “modern custom.” The renaissance of custom requires the articulation of a coherent theory that can accommodate its classic foundations and contemporary developments.”16 Thus, legal scholarship agrees that there is a need for a positive exposition of the fundamentals of customary international law and a development of their theoretical basis in order for the tradition to continue as evidence in an empirically-driven practice of law in the 21st century. Those who would diminish the importance of customary international law are generally those ideologically tied to the declarations and conventions of accord and treaty-based international law vs. the more archaic traditions of CIL promoted by unilateralists and sovereign supremacists. The advocates of CIL may be paradoxically the smaller States who seek to retain the ability to “opt out” or object fundamentally to customary law on the same basis as accords, and where multi-national alliances of industrial powers seek to impose international hegemony through self-interest based foreign policies disguised as the Mandatory View of CIL. Both of these aspects point to the constructed nature of international law and the problem of enforcement. The extent of the law is only as far as the system of enforcement and framework of consensus itself extends, yet the danger for the integrity of the justice system in international law at this level of organization rests with the voluntary compliance of the sovereign being corrupted by self-interest in foreign policy. Sources Cited: Bolton, John R. (2011), "International Law," and American Sovereignty, American Enterprise Institute for Public Policy Research, RightNetwork.com, January 11, 2011, Web, viewed 16 January 2011, . Bradley, Curtis A. & Gulati, G. Mitu (2009), Withdrawing from International Custom, Yale Law Journal, Vol. 120, 2009, Web, viewed 16 January 2011, . Briggs, Herbert W. (1985), Nicaragua v. United States: Jurisdiction and Admissibility, The American Journal of International Law, Vol. 79, No. 2 (Apr., 1985), pp. 373-378, 1985, Web, viewed 16 January 2011, . Byers, Michael (1999), Custom, power and the power of rules: international relations and customary international law, Cambridge University Press, 1999, Web, viewed 16 January 2011, < http://books.google.co.in/books?id=cPvK4oLP1P8C>. Colson, David A. (1986), How Persistent Must the Persistant Objector Be, 61 Wash. L. Rev. 957, HeinOnline Law Journal Library, 1986, Web, viewed 16 January 2011, . D'Amato, Anthony (1985), Judge Bork's Concept of the Law of Nations is Seriously Mistaken, The American Journal of International Law, Vol. 79, No. 1 (Jan., 1985), pp. 92-105, 1985, Web, viewed 16 January 2011, . D'Amato, Anthony (1982), The Concept of Human Rights in International Law, Columbia Law Review, Vol. 82, No. 6 (Oct., 1982), pp. 1110-1159, 1982, Web, viewed 16 January 2011, . Villiger, Mark Eugen (1997), Customary international law and treaties: a manual on the theory and practice of the interrelation of sources, Martinus Nijhoff Publishers, 1997, Web, viewed 16 January 2011, . Read More