The Making of International Law - Literature review Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : The making of International Law Tutor : xxxxxxxxxxx @2010 Introduction The legal authority of international law is attributed to its ability to create moral duties essentially in terms of obedience for its subjects who can either be international organizations, individuals or states. Janis (1988) defines internal law as legal rules that are created to govern interaction between sovereign states. International Law became popular in the 19th centaury. However contention has arisen over the years on whether the making of international law should be a product of voluntary actions of states to which it applies as opposed to the actions of a majority of states. Furthermore with the initiation of the principle of voluntarism whereby international law can only exist with the consent of a particular state, the making of international law has continued to be a contentious issue. Gaetano Aranjo-Ruiz an eminent international lawyer stated that he does not see sufficient signs that voluntarism is being superseded in any significant measure by majority rule in international law making. His statement leads to the big question of how is the making of international law a product of voluntary action of the states to which it applies as opposed to the actions of majority of states. Antonio (2005, 102) argues that if one understands the aspect of law making in an accurate legal manner, he/she can back the fact that there are no adequate signs that voluntarism is being replaced in any significant way by majority rule within the framework of international law making. Antonio further highlights that contemporary states are so attached to voluntarism than they have ever been in past years, especially in the area of the making of customary law and treaty law. There are two basic factors that influence the voluntary actions within the law making process; the sources of laws and the process of voting. Antonio (2005, 105) highlights that rules contained in forces that are legally binding are complied by states in which they are addressed and further embodied or integrated in either general customary international law. Antonio (2005, 106) also argues that it follows that Majoritarian process which is an instruments non binding laws being adopted does not actually stand for any kind of innovation that is substantial in the process of international law making . The majority only play a significant role during the stage that precedes law making but not the actual law making process. For example the making of customary and treaty laws remain within the framework of voluntary state actors. Professor Christina Chinkin one of the professors of international Law in London school of economics makes an examination of the main processes, strategies and techniques that are utilized by various law making agencies in the making of international Law. She reveals that fragmentation is a major contributory factor of making voluntary state actions be products of international law making as opposed to the actions of majority of states. She further states that primarily fragmentation is demonstrated by the aspect of horizontal grouping of states within and alongside the international legal order. International relations theorists describe fragmentation as the development of ‘self contained regimes’ whereby the formed regimes designate in a certain class of subsystems namely those with unique set secondary rules. The principle aim of the ‘self contained regimes’ is to totally exclude or rule out the application and relevance of general legal consequences that are linked to wrong acts . Professor Chinkin highlights that the impact of fragmentation in the making of international law is that an extensive variety of separate regimes of international law making are developed, as a result making the process of international law making their own specific area of expertise. In addition the contextualized regimes use different law making strategies which mainly favor different outcomes of law making. Higgins (1995, p215) highlights that the dominance of the voluntary state actions in the making of international law is attributed to continued failure of the Majoritarian law-making procedures. Consensus being one of the strategies of modern treaty negotiating for the states has been facing numerous challenges in the recent years. The consensus model has been applied in numerous negotiations for instance in the statute of the International criminal court , WTO agreements and climate changes convections, just to name but a few . Recent trends indicate that the application of consensus as a strategy of international laws making is facing great challenges for instance the recent climate change convention in Copenhagen revealed that states had become individual actors in the process of law making. Even with the running out of the Kyoto protocol in 2012 many sates have not yet confirmed to the standards of preventing global warming and preventing climate change. The Copenhagen convention was an actual failure due to lack of consensus. The decline of Majoritarian system in the making of international law therefore proves Gaetano Aranjo-Ruiz’s statement that there are no sufficient signs that voluntarism is being superseded in any significant measure by majority rule in international law making , is actually a true statement considering the recent trends in modern society. Each society recognizes the need to differentiate between norms controlling society and its legal norms. Unlike the framework of national legal systems which are determined by the provisions of the constitution, the aspect of decentralization of making international law is actually a contested and complex issue. Disagreements in the making of international law exist in various levels these results to a situation whereby some states formulate laws that only apply in the context of their countries as opposed to the integration of the view points of the majority. The first level of disagreement evolves from the nature of international organizations; there is a substantial difference between groups of states and states. At the beginning of the 19th centaury when international law gained its popularity, there existed attitudes such as the ‘’Western’’ which basically consisted of developed nationals and also the ‘’ developing ‘’ nations. With this kind of attitudes , the integration of geopolitics , difference in international relations and the contrast among states has also affected the making of international laws whereby , majority view is not practiced due to dominance of some states in global issues due to their development capacities, as a result the dominant states formulate laws that fit the context of their own countries and thus excluding majority of nations in the world which fall under the developing nations category ( Higgins 1995). Michael and Julie (1995), highlight that the process of international delegation is affected by domestic authority. In a situation whereby domestic actors select a produce for ratifying treaties that is different in significant ways to the procedure used in passing ordinary law( as practiced in the United States), this makes a theoretical scenario whereby international law can be utilized as an end to the political process at domestic levels. In a situation were there exists a difference between the domestic and the international process, the government actors can utilize international law in order to attain leverage over choice of domestic policies. For instance research indicates that with the increase in the number of governments that can stop legislations, what is referred to in as ‘veto players’ in political science , states are becoming more likely to look for accords with the International Monetary Fund that has the role of forcing states to develop policy changes. This kind of two level reverse game is most likely to occur in situations whereby government actors who have control or influence over international law are diverse or different in terms goals and their policy positions from those who posses control or influence over domestic law. In addition such efforts can be anticipated to be more profound in situations were government control by one party is questionable and as a result those who are presently involved in the control and management of policy making may request to delegating authority to a particular international body with an objective of restrain their success. There is a great paradox that lies at the heart of making international law and is founded on the notion that states are sovereign. Yet the very aim of international law is the restriction of states as they intend to act as they so desire. With the rise of voluntarism whereby sovereign states are only bound to international laws on basis of their own will, complexity continues to arise in the making of international laws. In deed majority of states in the world are sovereign states, however the application of sovereignty in the making of international law leads to a situation whereby states pursue their own ends as opposed to the integration of the perspectives of the majority. The big question is that does sovereignty differ? German sociologist Ulrich Beck recently made an observation concerning the basic context of sovereignty. Basing on what he referrers to as ‘’cosmopolitan sovereignty’’, which he defines as the extent to which a country or a state is able to have an impact or influence on the world stage. Ulrich claims that sovereignty is actually not equal among states in the world that claim to be sovereign. He further argues that states may use a various strategies including their global influence, in order to obtain their own specific goals. For instance they might engage in international agreements as a method of projecting their own ideology and values (Michael & Julies 1995). International law has historically been disregarded by many prominent world legal commentators and jurist. They have over the years questioned the actual existence of any set of regulations governing interstate relations and how effective the laws are to international actors and states within real life context. Dixon (2007,p2) highlights that in despite of a global acknowledgement that international law is a contribution of majority sovereign states, the recent trends in the beginning of the 21st centaury , do not signify at all that the making of international law is a making of majority states. Dixon further highlights that in recent years, states have engaged in unlawful measures without even slight possibility that their conduct could be validated by the international legal system. For instance the recent invasion of Iraq, the detention of suspects of terrorism without trial and the Israel’s invasion of Lebanon or the rejection of international standards for environmental protection by some states, brings out the clear picture of how states are the major actors in the establishment of rules that govern inter-state relations. The framework of international law holds almost every area of the domestic authority held by states. However in contemporary society, states are increasingly giving the authority of making international laws to international bodies. Scholars have highlighted that living the process to international bodies may actually be a mechanism that encourages the voluntary contribution of states in the process as opposed to using the view points of the majority. This is because the representatives found in the international bodies do not represent every state as a result the individuals may make laws that are applicable in the context of their own countries (August 1995). Conclusion Gaetano Aranjo-Ruiz statement that he does not see sufficient signs that voluntarism is being superseded in any significant measure by majority rule in international law making, can basically be considered as factual basing on the facts presented by the analysis above. The big question therefore remains, what then is the future of majority participation in international law making? The most rational answer is that the Majoritarian system should not actually be rejected; instead every States should actually establish broader goals for their countries in order for them to fully and actively participate in international law making. Bibliographies August, R, 1995, Public International Law: Text, Cases, Readings. Englewood Cliffs, N.J.: Prentice-Hall. Antonio, C & Joseph, H,1998 , Change and stability in international law-making, European University Institute. Walter de Gruyter. Antonio, C, 2005, International Law (OUP). Alan, B & Christine Chinkin, 2007, The Making of International Law. London, Oxford University. Dixon, Martin, 2007, Textbook on International Law, (OUP) , Cambridge , Cambridge University. Higgins, B, 1995, The Reform of International Law, in Rawlings (ed), Law, Society and Economy: Centenary Essays. London School of Economics and Political Science. Janis, W, 1988. An Introduction to International Law. Boston, Little, Brown Michael Ross & Julies Marie, 1995, Law, Power, and the Sovereignty of States , the evolution and application of the concept of sovereignty, Pennsylvania State University. Read More