REPORT TOPIC LAW - Assignment Example

International Law I International Law II. RESEARCH QUESTION How is International Law Enforced? III. BRIEF NARRATIVE SUMMARY International Lawconsists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical. (ALI Restatement 3rd sec 101). It is divided into two distinct branches. Public International Law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions (Shaw, 2).

Conflict of Laws or Private International Law covers cases where a foreign element intrudes, raising questions as to the application of foreign law or the role of foreign courts (Shaw, 1). Legal Positivism suggests that international law is not law at all because there is no true governing body that imposes the law and enforces its obedience. Contrast this with the laws of a State where the State itself is tasked with the promulgation and enforcement of the law. Instead, International Law is enforced by agreement between parties to a treaty, convention or international organization.

For example, states that are parties to the Geneva Conventions of 1949 commit themselves to follow the rules of war set forth in those Conventions. State parties to the Kyoto Protocols bind themselves to the provisions of those environmental-safeguard protocols. Even the United Nations and its subordinate bodies exist because the UN State Parties signed or acceded to the UN Charter to become members of the United Nations. Aside from Treaties and Conventions, which are essentially multilateral treaties, there are two other sources of international law.

They are international custom and general principals of law recognized by civilized nations (ICJ Statute Art 38). Unlike treaties and conventions, there is no written and ‘binding’ definition of these two because if there was, then they would comprise a Convention. For example, the International Covenant on Civil and Political Rights (ICCPR) is a convention recognizing the general principle of law that people have civil and political rights. In all cases, International Law is enforced by the free consent of the State Parties who agree to be bound by International Law.

By way of analogy, the State Parties hold hands and agree with each other to follow International law and everybody is a part of one big happy family. The better question to ask is what happens when there is a breach of international law? This is where the complex relationships of international law start to unravel. First of all, the general rule is that a state cannot unilaterally declare that another state is in breach of its international obligations. Corollary to this, a state cannot, again as a general rule, take unilateral action against these said breaches.

States that retaliate against breaches to themselves are the exception but retaliation is generally unproductive because it results in escalating breaches committed by the involved states against one another. In 2003, the US and the so-called “coalition of the willing” came under heavy criticism for invading the sovereign state of Iraq on the strength of US claims that Saddam Hussein possessed illegal weapons of mass destruction and was harboring terrorists. Such unilateral action is frowned upon by the international community because it amounts to one party putting international law into one’s own hands in the manner of a vigilante with no respect for the very law he claims to enforce.

The existence of a breach of international law and the remedy for the same is properly decided by an international tribunal or an international arbitral body. The international tribunal of general jurisdiction is the International Court of Justice (ICJ) which is based in The Hague, Netherlands. The ICJ has jurisdiction over all cases referred to it by the parties to a controversy and all matters provided for in the UN Charter as well as treaties and conventions in force (ICJ Statute Art 36 par 1).

The ICJ has the power to render judgment on the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation, and the nature or extent of the reparation to be made for the breach of an international obligation (ICJ Statute Art 36 par 2). Restated, the ICJ is the court of international justice where international controversies are resolved peacefully. There also exist tribunals of more specialized jurisdiction.

The International Criminal Court (ICC) tries Aggression, Genocide, Crimes Against Humanity and War Crimes as defined by the Rome Statute (Rome Statue Art 5). The World Trade Organization Dispute Settlement Body (WTO-DSB) resolves trade disputes between states. Ad hoc international arbitration bodies can also be formed to arbitrate disputes between States and private corporations. The UN Security Council can also be considered an international quasi-court in the sense that it can determine if there is a threat to world peace and decide the appropriate course of action against that threat.

But like International Law as a whole, the ICJ and other international tribunals can only declare that a breach has occurred and the reparation, if any, to be made for such breach. Except for the ICC where the defendant is a natural person in the custody of the Court and therefore powerless to defy its judgment, enforcement of the decision of an international tribunal is predicated on the willingness of a State party to comply with that decision. Even the ICJ is powerless to enforce its decisions on an uncooperative State party.

The classic example of this is U.S. v. Nicaragua (1984 ICJ Rep. 392). The decision was unfavorable to the USA and it used its powers as a permanent member of the UN Security Council to veto the enforcement of the decision not once but five times. Nicaragua got a paper decision that was never enforced. Fortunately, states that defy the ICJ and other international tribunals are the rogue exception. The path to enforcing international law is the same as enforcing municipal (local) laws. File the appropriate charges before the proper court which will decide in a just and equitable manner in the interest of international justice.

States that take the enforcement of international justice into their own hands are rouge vigilantes who are also violating international law. IV. METHODS AND DATA The method of collecting data is a discriminating survey of the relevant treaties and conventions that give rise to international law. Specific attention will be given to the UN charter and the ICJ statute. Decisions of the ICJ will be covered to shed light on how enforcement of international law is accomplished. Finally a perusal of history with respect to two groups of states will be included; these are the states that claim to unilaterally enforce international law and states which continue to violate international law despite findings of competent tribunals that they are in breach of international law.

Works Cited ALI Restatement 3rd sec 101, available at http://library.law.columbia.edu/guides/Researching_Public_International_Law#Definitions_of_International_Law (last accessed 16 April 2011) Shaw, Malcolm. International Law 5th ed 2003 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986. Statute of the International Court of Justice Statute of the International Criminal Court