International relations / International law: ‘International law is what actors make of it’

A framework of international law

A framework of international law that all parties can abide by has been a goal of nations and other organizations since the turn of the 20th century. Due to the limited efficacy and resources of the enforcers as well as the unwillingness of some players to uphold laws and rulings that do not benefit them, there are always difficulties putting these laws into practice. Since international law is frequently at the whim of those it is intended to govern, it is still not as effective as it could be. At the turn of the 20th century, countries and other entities have come together in an effort to establish a framework of international law that all can abide by. However, there are always issues in implementing these laws due to the limited effectiveness and resources of the enforcers, and the reluctance of some players to enforce laws and judgments which do not favor them. International law is still not as effective as it was meant to be since it is at the mercy of the people it is meant to control in most instances.

Instances of failure in international law

At the turn of the century, violent conflict erupted in Sudan’s Darfur region between the Fur people and a government-backed militia. There were claims of attempts at ethnic cleansing against the Fur, and genocide. After investigating the charges, the International Criminal Court issued an indictment for President Omar El Bashir, ordering all ICC members to arrest the president and hand him over to the ICC if he was to ever set foot on their respective countries. However, the president has continued with his international travels as usual, visiting ICC member countries without any fear of arrest (Bhagwati, 2014, 22). While the members had at the signing of the statute establishing the ICC committed to carrying out precisely such arrests, they have found it impossible in practice. In this case international law is constrained by other issues such as bilateral relations, membership to certain organizations – the Arab League and African Union have no intention of handing over Bashir, and issues of sovereignty (Kiyani, 2013, 471).

At the height of war in the Balkans, the international criminal court issued indictments against the then president of Yugoslavia, Slobodan Milosevic. The president was seen as behind the atrocities of the Serbian nationalists against other members of the federation. However, the court was for a long time unable to carry out its mandate in part because the president was still in power. While the court was able to finally secure his arrest, this was only after his political position had become far weaker than it was at the time of the indictment. In this as well, Milosevic’s immunity from prosecution in his country, and respect for the sovereignty he led made it impossible for the court to do anything. This therefore shows that while other countries may be willing to implement international law, other members’ inability to do the same severely weakens the system (Goldstein, Kahler, Keohane and Slaughter, 2000, 390).

Since the end of the Great War, there have been an increasing number of treaties and agreements that try to control everything from climate change to trade and political relationships between countries. However, the rules that should protect all signatories equally have sometimes been used without clear logic by some powers, which are out to protect their interests or others who lack faith in the international law mechanism as established. For instance, the bombing of Serbia due to the Kosovo crisis was carried out under unclear interpretation of the law. At the same time, WHO agreements as well as agreements reached under the Kyoto protocol remain unimplemented by a host of the signatories. The lack of commitment to international agreements and other elements of international law have eroded confidence in the framework, essentially making it what the actors deem it to be (Goldstein, Kahler, Keohane and Slaughter, 2000, 392).

Instances of success in international law

The bombing of a Pan-Am airplane over Lockerbie was one of the most deadly terrorist attacks on the West, said to have been undertaken by Libyan intelligence agents. In response, the United Nations put pressure on the Libyan government to hand over the suspects, and let them be tried at a neutral site. Despite initially rejecting the calls, the pressure on the Libyan economy and its military reached a point where the Libyans saw handing over the suspects as the only way out of the crisis. This handing over together with the compensation which followed was hailed as success in international law. In instances where the United Nations

The signing of the Kyoto protocol has since been billed as a success or failure, depending on how the critics evaluate it. While it was meant to significantly reduce greenhouse emissions significantly and in the process help control climate change and the destruction of the ozone layer, only modest success has been realized. This has been blamed on countries’ failure to sacrifice their national output in the interest of climate change. Other countries strongly dispute the connection between climate change and human activity, meaning that greenhouse gases are not responsible for climate change. Despite these problems, countries are under ever increasing pressure to cut their emissions and achieve the target set 20 years ago. It can then be deduced that in some circumstances, international law can be used to bring about meaningful change in society, despite the progress of such change being very slow in some instances (Shaheen and Lipman, 2007, 17).

The World Trade Organization has since its inception been a major player in international trade. It has led countries in easing trade restrictions, liberalizing trade in the process, and uplifting the fortunes of several communities around the world. Despite challenges and barriers placed by countries unsure of how trade will affect their domestic economies, trade has become freer over the years, primarily due to the presence of the WTO. The WTO is also involved in resolving trade disputes among countries. In earlier times, trade disputes would often lead to diplomatic tension, and even result in armed conflict. With the arbitration conducted by the WTO however, this is no longer necessary (Bhagwati, 2014, 16).

The success of the United Nations in maintaining world peace since its formation cannot be overemphasized. The international organization has been involved in peacekeeping missions, while also giving its members the authority to act in the interest of humanity. Some of the bodies associated with it such as the ICJ, WHO and the ICC, have also played important roles in justice, security and health. In this context therefore, international law is not wholly at the mercy of actors, but is a respected mechanism that has resolved disputes, and generally contributed to a better world, rather than being used as an instrument by major powers to oppress smaller countries (Kono, 2007, 748).

Factors that have led to failure/success of international law

International law has had its moments of success and failure. These moments have been the victim or the beneficiary of the intricacies of world politics and diplomacy, as well as domestic politics. The various factors that have led to the success of failure of international law are discussed below.

The United Nations

The United Nations was set up in part to ensure that justice and the respect of obligations imposed by treaties and other agreements are upheld. The United Nations has exercised the mandate given to it by the UN charter to authorize force, send peacekeeping troops, and sponsor peace efforts in many parts of the world. Countries have despite their differences usually submitted to the auspices of the United Nations, giving the organization extensive powers to carry out many of its mandates. The United Nations also has various mechanisms to implement its wishes through member countries, courts, and tribunals. Apart from a few glaring failures, the United Nations has largely been able to ensure countries respect international law (Bhagwati, 2014, 38).

Internalization of international law into domestic law

Over time, international law elements have not only been obeyed and adhered to, but they have also been internalized by member countries that are signatory to these treaties. Member countries have come up with legislation that forces them to be under the jurisdiction of the ICC, and forcing them to abide by its indictments and other actions. The European Union laws have also come to form a basic part of the laws of individual countries, such that they determine issues of trade, immigration, and even human rights issues (Koh, 1997, 2634).

Unequal power between countries

Through the centuries, countries have regarded their ability to deal with their domestic issue as part of their identity, and as the whole point of sovereignty. Countries that are unable to do this may be regarded as weak, and under the domination of stronger parties. The implementation of international law has usually come under this charge, whereby countries see international law implementation as an affront to their sovereignty, and choose to ignore it. Other countries also fail to obey international law because it constrains them from doing as they wish. For instance, a country may for its own interests, want to invade another, or launch operations in its own country that contravene international law and norms. They therefore conveniently fail to obey the law, citing public good and other excuses (Kufuor, 1997, 128).

Conclusion

From the above analysis and examples given, it can be seen that international law has had varying degrees of failure and success depending on various circumstances. However, it cannot be denied that international law largely depends on the goodwill and values of respective countries for it to succeed. While some countries have embraced international law as vital to their interests and the interests of humanity, others still hold the traditional view that international law is not actually law, and therefore is not binding (Abbott, et al, 2000, 411). Rather, it is only a framework that countries can use to relate with each other.

It can also be argued with the help of the examples above that; international law is also successful if respective countries will it to be. It is especially dependent on stronger countries, which can enforce international law and norms on others. Therefore, international law is what actors make of it.

Bibliography

Abbott, K, W., et al. 2000. “The concept of legalization.” International organization 54, (3), 401-419.

Bhagwati, J, 2014. The World Trade System: Trends and Challenges. PhD. New York: Columbia University.

Goldstein, J., Miles, K., Robert, K., and Anne-Marie, S. 2000. Legalization and World Politics. International Organization, 54: 3, 385-399.

Kiyani, A., 2013. Al-Bashir & the ICC: The Problem of Head of State Immunity. Chinese Journal of International Law, 12(3), 467-508.

Koh, H., 1997. Why Do Nations Obey International Law?. Yale Law Journal, 1(1), 2599-2659.

Kono, D. 2007. “Making Anarchy Work: International Legal Institutions and Trade Cooperation.” Journal of Politics, 69: 3, 746-759.

Kufuor, K., 1997. From the GATT to the WTO -- The Developing Countries and the Reform of the Procedures for the Settlement of International Trade Disputes. Journal of World Trade, 31(5), 117-147.

Shaheen, S., & Lipman, T., 2007. Reducing Greenhouse Emissions and Fuel Consumption: Sustainable Approaches for Surface Transportation. IATSS research, 31(1), 6–20.