Rights and Obligations, International Law Matters - Assignment Example

Rights and Obligations Student’s Name: Instructor’s Name: Course Code and Number: University: Date of Submission: Rights and Obligations Introduction The literature on the international law compliance is fairly distinct in theoretical orientation, methods, and findings. According to the early quantitative work, much international performance is consistent with the international rule, even in the conduct of rivalry between states. It has been very difficult to show a credible casual connection between behavior and legal commitments. There are some progress that have been made in the assessment of compliance with the environmental agreements; comprehensive case studies have shown that technical capacity is essential even though not sufficient condition for securing compliance with accords that require technical rule implementation. Others claim that the domestic type of regime is fundamental to the understanding of foreign policy compliance. Governments that are based on the rule of law, and particularly the autonomy of judicial branch, are, in this perception, much more likely to be in compliance with the international requirements than those that are not. Democracies that are liberal are likely to adhere to the policies that reflect their ideological prejudices and to adhere to them. This proposal has not been put to a meticulous test, but it appears to fit in the strand of the literature of the democratic space that argues regard for the domestic constitutional restraints carries over into the international policy conduct. Most studies regarding compliance face a serious challenge of not being in a position of showing credibility that it is based on anything other than the immediate governmental or state interests. Consequently, this leaves most researches on compliance to the criticism that laws add little to the peoples’ understanding of the international relations; they reflect and not alter the interests of governments in pursuing a certain course of action. I believe that the international legal laws do alter the interests of the governments in compliant behavior (Heckman & Robb 1985, p. 82). However, international legal compliance is an attempt to make a plausible commitment to a certain policy stance. The acceptance of agreement requirements regarding behavior that, when made, are costly for governments to infringe. An international legal compliance is one way that governments try to increase the reputational consequences of reneging, with substantial costs for state behavior. International Law matters International law is a factors in the decision making process of a state. The interpretation of international law by a state it thus critical, but under observed, state foreign policy development component and is the basis on which states eventually act in the international system. However, this does not essentially imply that the foreign policy is a positive factor, or even actually a fundamental factor, but it is posited that foreign policy does not exist and is only recognized as present by the international system states (Chayes & Handler 1995, p. 182). Whereas this supposition is contrary to much of the conventional literature in the field of international relations, latest research have gone further towards the acceptance of foreign policy as an essential factor and focused on the explanation of the way foreign policy matters and not if it matters. The principal theoretical concept in the international relations, for a bigger part of the twentieth century, and the concept which drew away the field from the regarding of law as a fundamental component of the international relations in years ensuing to the Second World war, international law is not considered by realist literature as a significant factor in the understanding of state behavior. The establishment realism by authors like Morgenthau and Carr during the 1949s was largely a response to the apparent failure of the League of Nations’ “idealist” that was created by Wilson after World War I. Both Carr and Morgenthau, who are considered by many to be the founders of the present realist movement, thought that what Morgenthau referred to as ‘legalist-idealist’ concept on the world was not accurate, and more significantly treacherous (Risse-Kappen 1995, p. 27). This resulted to a continual critique of those who champion foreign policy as idealists who have no understanding of the way the world operates. Building on the Literature of Foreign Policy and Compliance The biggest question is how international policy matters in terms of state behavior. Much of the available literature puts focus on the role that is played by the international policy at both the level of system in terms of relationships between states, and at the local level in terms of decision making in the state regarding its own course of action and policy (Haas, Keohane & Marc 1993, p. 28). However, one commodity amongst this literature is that the foreign policy studied is considered as a single, incontrovertible entity. Whether the United Nations Charter’s provisions, obligations of the international environment, or even state responsibility under the international human rights policy, available work on the place of foreign policy in the system of international politics works from the position that all nations accept the same international law’s meaning at issue, and all non-actions or actions are considered in terms of that single meaning. Nonetheless, the reality is that, just like all policies, international rule is open to elucidation, and there are several interpretations which are levelheaded, and could be regarded to be valid. This implies that states are not essentially formulating policy or even considering their course of action from a similar starting point (Price 2004, p. 92). This is a critical factor to be taken into consideration when trying to comprehend state behavior in the global system. States start their process of policy with different apprehensions of the world around them; however, this also goes for their understanding of the surrounding world. It order to be in a position of truly understanding the positions taken by states on particular matters, the laws that they establish, and the actions that they take, it is important to understand what makes up the state understandings. It is the understanding of the international law as well as international policies by the state that bind them, that are being considered. Two major literatures within this field include state compliance with the international rule and that regarding the formulation of international policy. Each gives basis upon which to build, but none goes to the extent of considering the development of understanding of the international rules by state, and level at which these laws guide the behavior of state. In the literature of compliance, the focus on traditional power and exogenous factor and the institutional theories particularly limits consideration of the factors that form the starting point from which the measuring of compliance can be done (George & Michael 2002, p. 46). The literature that address state compliance with the international law has considerably grown since the Cold war came to a stop. Several studies have been conducted to try and understand the internal and external factors which facilitate state compliance with the international laws. Some researches have put their focus on the external factors like regional pressures, reputational concerns and economic incentives. Others have mainly focused on the properties of domestic factors, which have influence on compliance with the international rule, like electoral pressures, level of NGO activity, and type of regime. None of these studies, however, consider the influence that a state’s domestic law may have on its treatment of international law. Furthermore, whereas there is increasing number of studies that attempt to address the normative, cultural and ideational factors which might influence compliance, these are still less compared to more institutional and traditional systemic explanations (Miroslav & Lepgold 2000, p. 125). There are three ways in which thoughts can affect foreign policy. Focusing on particularly two mechanisms; which are principled beliefs and road maps road maps, I think legal tradition offers the basis for which thoughts are translated into the process of foreign law concerning international rule. Since the stop of the Second World War, realist theory had developed to take even more strict view of the played by international law in state behavior (Weiss & Harold 1998. p. 91). Neo-realism, which is led largely by Kenneth Waltz’s work, adopts most of realism’s assumptions, but changes the focus from one of the absolute power or influence to one of relative influence in which nations weigh the consequences and gains of their actions, with the objective of attaining balance of power. Realist thought considers any influence on the behavior of state as exogenous, unchanging and given, and established on the idea that states attempt to protect the balance of power above anything else. Many researchers in the realist camp have regarded international legal policies as simply ‘epiphenomenal,’ mentioned by states only when it appears to serve their purpose of the maintenance as well as the improvement of the position of their relative power in the international system (Reiter & Stam 2002, p. 162) Non-realists would claim that the international lawyers have a reflective and idealized account of the international agreements and the binding effect that they have on states, and would cite the clear gaps between practices and ideals, specifically practices of the influential states such as the United States of America. For neo-realists, it is not law but material forces that are the only determinant of world politics, and compliance with the global rules is only done to serve the state’s interest. There have been several criticisms of the approach of realism to law. The most notable critique is that the insistence by realism that international rule is just a tool that may be used by states to stress their position does not give an explanation, or even try to address, the persistently growing body of the international legal policies that cover a wide or extensive variety of subjects. In addition, these international legal laws do not often adhere to the theory that influential states dictate the establishment of international policy. There have been several international agreements since the end of the Second World War, that were established touching on the subjects that ranges from human rights, to the nuclear weapons, environment, international trade, and the open seas, all of which have not only discarded some aspects of autonomy from individual states, but which have severally gone contrary to what might be regarded as the express will of the super powers (Skonieczney 2001, p. 82). Another critique of the treatment of international rule by the realist is that, the realist theory claims that in order for the international law to be regarded as law, it should be explicitly approved by states. If states do not actually express their approval to be bound by the rule, then it is not probable for the international rule to have any restraining power at all over states. More so, for the realist theory, we find that the only way that rule can be effective is for it to be concisely and clearly defined and also supported by the ladders of authority and ways of enforcement, both qualities that the international rule lacks, in accordance with the realists (Ole 1996, p. 72). The last critique of realism is that it does not only account for the way international rule has come to restrain strong states regardless of a lack of clear consent in many instances, but also that it does not have an account how feeble or week states use the rule to shape the results that they desire in the face of possible opposition and indeed greater power from the large states. Sharing most of the same suppositions as the realist literature, which include acceptance of the state as the main actor in a lawless international system, we find that the neoliberal institutionalist scholarship that has grown to rival the realist scholarship also believes that influences in the behavior of state are exogenous, and hence unchanging and constant, and un-constitutive of the process of decision making (Miroslav & Lepgold 2001, p. 251). There are several differences between realism and neo-liberal institutionalism. Neo-liberal institutionalism, instead of treating states as rational actors that seek to maximize survival via maintenance and attainment of power, assumes that states attempt to maximize their different interests that may or may not have a direct relation to power. Moreover, states attempt to maximize their collective and individual interests, while realism only focuses on individual interest. In addition, in an attempt to maximize their interests, whether collective or individual in neo-liberal institutionalist theory, states believe that this is something that is usually best attained via mutual cooperation. Lastly, neo-liberal institutionalist assumes that in attempting to attain mutual cooperation, states normally utilize and create international rules, via international institutions for the purposes of offering a set of functional rules that are propagated to solve the problems of cooperation under anarchy (Kratochwil 1989, p. 261) It is, therefore, true that norms are developed on the basis of state preferences as regards their material forces or influence, with the objective of facilitating the interest of the state by, for instance, giving clear policies of behavior, increasing the information’s availability, and giving a clear indication of the states that are not acting in compliance with the norm. Nevertheless, all of these increase the possibility of a state to appropriately examine and determine its position or standing in the international system, and hence better attain its goals as well as protect its interests (Christian 2004, p. 28) Law, and particularly in this instance of a state’s legal tradition, is a cornerstone or basis of every society. At the same time, the rule within each society is different; that is has developed out of very different history and has portrayed itself in a different set of institutions and beliefs. When considering an action under a present principle of international rule, we find that the decision making experts assume the presence of a set of elite generally sanctioned policies. Legal laws often leave open the probability of several different interpretations regarding their meaning. I believe these differences are critical to influencing how the decision makers of state, as their society’s product, think about the rule; be it the purpose of the rule, the amendment or creation of legal principles, or even the sources of the rule. International legal principle’s different interpretations are thus reflections of the distinctive legal state’s tradition. Since legal tradition is so introductory or foundational to every state, and forms the distinctive environment within which the decision makers of state interpret international rule, I believe that a failure to recognize the weaknesses and strengths of the various legal traditions, results to controversy among the states. The consideration of constitutive impact that the legal tradition might have on the decision making of a state concerning the correct interpretation of the international rule is essential for several reasons. The understanding of how it is that nations interpret international rule is essential for our critical understanding of the way states act. In addition, the understanding of the way legal traditions shape the interpretation of international laws by state might offer insight for the policy makers together with others that work on matters of rule of law in the development of countries and struggle with the various legal traditions that do not really have the same perception of the rule of law that is seen in the United States of America. The understanding of different traditions of states around the world, has the potential of greatly facilitating negotiation as well as monitoring of the international laws, and can also give insight into various reactions that nations have to different matters, probably reducing the kinds of misunderstandings that were seen during the action of NATO in Kosovo, during the year 1999. List of References Chayes, A & Handler, C 1995, The New Sovereignty: Compliance with International Regulatory Agreements, Harvard University Press, Cambridge, MA. Christian, R 2004, Introduction: The Politics of International Law, Cambridge University Press, Cambridge, UK. George, W & Michael, A 2002, “Rational Choice and International Law: Reputation, Compliance and International Law,” Journal of Legal Studies, Vol. 31, No. 1, P. 95-114. Haas, PM, Keohane, M & Marc, A 1993, Institutions for the Earth: Sources of International Environmental Protection, MIT Press, Cambridge, MA. Heckman, J & Robb, R 1985, Alternative Methods for Evaluating the Impact of Interventions, Cambridge University Press, Cambridge. Kratochwil, F 1989, Rules, Norms, and Decisions: On the Conditions of Practical Reasoning in International Relations and Domestic Affairs, Cambridge University Press, Cambridge. Miroslav, N & Lepgold, J 2000, Being Useful: The Policy Relevance of International Relations Theory, University of Michigan Press, Ann Arbor. Miroslav, N & Lepgold, J 2001, Beyond the Ivory Tower: Scholarship and Statesmanship in International Relations, Columbia University Press, New York, NY. Ole, R 1996, Public Opinion and American Foreign Policy, University of Michigan Press, Ann Arbor. Price, R 2004, “Emerging customary norms and anti-personnel landmines,” in Reus-Smit 2004. The Politics of International Law, Cambridge University Press, Cambridge, UK. Reiter, D & Stam, A 2002, Democracies at War, Princeton University Press, Princeton. Risse-Kappen, T 1995, Cooperation among Democracies: The European Influence on U.S. Foreign Policy. Prince-ton University Press, Princeton, NJ. Skonieczney, A 2001, “Constructing NAFTA: Myth, Representation and the Discursive Construction of U.S. Foreign Policy,” International Studies Quarterly, Vol. 54, No. 2, p. 43-54. Weiss, EB & Harold, KJ 1998, Engaging Countries: Strengthening Compliance, Harvard University Press, Cambridge, MA. Read More