Issues/Analysis of International Law term paper 5387

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International law is the body of legal rules that apply

between sovereign states and such other entities as have been granted

international personality (status acknowledged by the international

community). The rules of international law are of a normative

character, that is, they prescribe towards conduct, and are

potentially designed for authoritative interpretation by an

international judicial authority and by being capable of enforcement

by the application of external sanctions. The International Court of

Justice is the principal judicial organ of the United Nations, which

succeeded the Permanent Court of International Justice after World

War II. Article 92 of the charter of the United Nations states:

The International Court of justice shall be the principal

judicial organ of the United nations. It shall function in accordance

with the annexed Statute, which is based upon the Statute of the

Permanent court of International Justice and forms an integral part of

the present Charter.

The commands of international law must be those that the

states impose upon themselves, as states must give consent to the

commands that they will follow. It is a direct expression of raison

d'etat, the "interests of the state", and aims to serve the state, as

well as protect the state by giving its rights and duties. This is

done through treaties and other consensual engagements which are

legally binding.

The case-law of the ICJ is an important aspect of the UN's

contribution to the development of international law. It's judgements

and advisory opinions permeates into the international legal community

not only through its decisions as such but through the wider

implications of its methodology and reasoning.

The successful resolution of the border dispute between

Burkina Faso and Mali in the 1986 Frontier Dispute case illustrates

the utility of judicial decision as a means of settlement in

territorial disputes. The case was submitted to a Chamber of the ICJ

pursuant to a special agreement concluded by the parties in 1983. In

December 1985, while written submissions were being prepared,

hostilities broke out in the disputed area. A cease-fire was agreed,

and the Chamber directed the continued observance of the cease-fire,

the withdrawal of troops within twenty days, and the avoidance of

actions tending to aggravate the dispute or prejudice its eventual

resolution. Both Presidents publicly welcomed the judgement and

indicated their intention to comply with it.

In the Fisheries Jurisdiction case (United Kingdom v. Iceland,

1974) the ICJ contributed to the firm establishment in law of the idea

that mankind needs to conserve the living resources of the sea and

must respect these resources. The Court observed:

It is one of the advances in maritime international law,

resulting from the intensification of fishing, that the former

laissez-faire treatment of the living resources of the sea in the high

seas has been replaced by a recognition of a duty to have due regard

of the rights of other States and the needs of conservation for the

benefit of all. Consequently, both parties have the obligation to keep

inder review the fishery resources in the disputed waters and to

examine together, in the light of scientific and other available

information, the measures required for the conservation and

development, and equitable exploitation, of these resources, taking

into account any international agreement in force between them, such

as the North-East Atlantic Fisheries Convention of 24 January 1959, as

well as such other agreements as may be reached in the matter in the

course of further negotiation.

The Court also held that the concept of preferential rights in

fisheries is not static. This is not to say that the preferential

rights of a coastal State in a special situation are a static concept,

in the sense that the degree of the coastal State's preference is to

be considered as for ever at some given moment. On the contrary, the

preferential rights are a function of the exceptional dependence of

such a coastal State on the fisheries in adjacent waters and may,

therefore, vary as the extent of that dependence changes. The Court's

judgement on this case contributes to the development of the law of

the sea by recognizing the concept of the preferential rights of a

coastal state in the fisheries of the adjacent waters, particularly if

that state is in a special situation with its population dependent on

those fisheries. Moreover, the Court proceeds further to recognise

that the law pertaining to fisheries must accept the primacy of the

requirement of conservation based on scientific data. The exercise of

preferential rights of the coastal state, as well as the hisoric

rights of other states dependent on the same fishing grounds, have to

be subject to the overriding consideration of proper conservation of

the fishery resources for the benefit of all concerned.

Some cases in which sanctions are threatened, however, see no

actual implementation. The United States, for example, did not impose

measures on those Latin American states that nationalized privately

owned American property, despite legislation that authorizes the

President to discontinue aid in the absence of adequate compensation.

Enforcement measures are not the sole means of UN sanction.

Skeptics of the coercive theory of international law note that

forceful sanctions through the United Nations are limited to

situations involving threats to the peace, breaches of peace, and acts

of aggressiion. In all other instances of noncompliance of

international law, the charter's own general provisions outlawing the

threat or use of force actually prevent forceful sanction. Those same

skeptics regard this as an appropriate paradox in a decentralized

state system of international politics. Nonetheless, other means of

collective sanction through the UN involve diplomatic intervention and

economic sanctions.

In 1967 the Security Council decided to isolate Southern

Rhodesia (now Zimbabwe) for its policy of racial separation following

its unilateral declaration of independence from Britain. As in other

cases of economic sanctions, effectiveness in the Rhodesian situation

was limited by the problems of achieving universal participation, and

the resistance of national elites to external coercion. With respect

to universal participation, even states usually sympathetic to

Britain's policy demonstrated weak compliance.

The decentralization of sanctions remains one of the major

weaknesses of international law. Although international bodies

sometimes make decisions in the implementation of sanctions, member

states must implement them. The states are the importers and exporters

in the international system. They command industrial economies and the

passage of goods across national boundaries.

Furthermore, the UN is wholly dependent on its members on

operating funds, so no matter what decisional authority its members

give it, its ability to take action not only depends on its decision

but also on means. Without the support, the wealth and the material

assistance of national governments, the UN is incapable of effective

sanctions. The resistance of governments to a financially independent

UN arises principally on their insistence on maintaining control over

sanctioning processes in international politics.

Despite sweeping language regarding "threats to peace,

breaches of the peace, and acts of aggression", the role of the United

Nationsin the enforcement of international law is quite limited.

Indeed the purpose of the UN is not to enforce international law, but

to preserve, restore and ensure political peace and security. The role

of the Security Council is to enforce that part of international law

that is either created or encompassed by the Charter of the United

Nations. When aggression occurs, the members of the Council may decide

politically - but are not obliged legally - to undertake collective

action that will have sanctioning result. In instances of threats to

or breaches of the peace short of war, they may decide politically to

take anticipatory action short of force. Moreover, it is for the

members of the Security Council to determine when a threat to peace, a

breach of peace, or an act of aggression has occured. Even thi

determination is made on political rather than legal criteria. The

Security Council may have a legal basis for acting, but self-interst

determines how each of it members votes, irrespective of how close to

aggression the incident at issue may be. Hence by virtue of both its

constitutional limitations and the exercise of sovereign prerogatives

by its members, the security council's role as a sanctioning device in

international law is sharply restricted.

As the subject matter of the law becomes more politicized,

states are less willing to enter into formal regulation, or do so only

with loopholes for escape from apparent constraints. In this area,

called the law of community, governments are generally less willing

to sacrifice their soverein liberties. In a revolutionary

international system where change is rapid and direction unclear, the

integrity of the law of community is weak, and compliance of its often

flaccid norms is correspondingly uncertain.

The law of the political framework resides above these other

two levels and consists of the legal norms governing the ultimate

power relations of states. This is the most politicized level of

international relations; hence pertinent law is extremely primitive.

Those legal norms that do exist suffer from all the political

machinations of the states who made them. States have taken care to

see that their behaviour is only minimally constrained; the few legal

norms they have created always provide avenues of escape such as the

big-power veto in the UN Security Council.

Despite the many failures and restrictions of international

law, material interdpendence, especially among the states of

equivalent power, may foster the growth of positive legal principles.

In addition, as friendships and emnities change,, some bilateral law

may cease to be observed among new emnities, but new law may arise

among new friends who have newfound mutual interests. In the meantime,

some multicultural law may have been developed. Finally, research

suggests that the social effects of industrialization are universal

and that they result in intersocial tolerances that did not exist

during periods of disparate economic capability. On social, political,

ane economic grounds, therefore, international law is intrinsic to the

transformation and modernization of the international system, even

though the "law of the political context" has remained so far.

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