Does law have a role in maintaining international order?

By John Lee

In its widest sense, law can be defined as a system of rules enforced through a set of institutions. Within a country, a supreme legislature creates laws which are enforced by a judiciary. On the global stage, however, no overarching international body exists to make laws nor is there an international judiciary and police force to ensure they are kept. All of which must lead the scholar of international relations to question whether international law is really law at all or, as John Fried asserts, merely a ‘weak and defenceless’ construct with little or no practical use. This essay will argue that while there are a multitude of problems associated with international law, it is a vital mechanism in the maintenance of international order and, moreover, one which, as Charles Kegley points out, most state actors accept as real and abide by most of the time. But first, it is important to locate the sources of the rules of global behaviour.

Article 38 of the Statute of the International Court of Justice defines the sources of international law thus. The first, customary law, is formed by the common practices of states over a period of time. For example, much of the law of the sea has developed on this basis. In order for customary international law to work, there has to be an acceptance by states that it is legally binding. Some states are bound by it even when they protest because the vast majority of states have consented. Such was the case during the years of apartheid when the South African government protested that its racial policies did not breach international law even though the international community considered them illegal. The second source of law is the treaty, which comes in two varieties: bilateral when concluded between two states and multilateral – such as those governing the exploration of the Antarctic, the seabed and outer space – when anywhere between three countries and the entire world are involved. The third main source of international law is the UN resolution, the most important of which earn the title Declaration, as in the Declaration of Human Rights. But even though there is expectation that states will abide by their provisions, Declarations are still only UN Resolutions and cannot be made legally binding, which highlights the greatest sticking point in international law: how to police it.

In a debate for Legal Affairs magazine, Chicago University’s Eric Posner suggests that enforcing the rulings of international courts and tribunals is nearly impossible. He questions why states continue creating international tribunals such as the International Criminal Court and the International Tribunal for the Law of the Sea when they appear to lack the capacity to influence the actions of other actors. Similarly, he argues, tribunals to adjudicate on war crimes in Rwanda and the former Yugoslavia have been farcical due to the tiny number of wrongdoers convicted and the platform such hearings provide for those on trial to stir up xenophobic reaction at home. In reply, Yale Law School’s Oona Hathaway contends that the records of such international tribunals are not as bad as Posner paints, that the ICC and ITLOS are still in their formative years and that rulings they have made enjoy a good record of compliance. She also points to the effectiveness of the International Court of Justice in solving border disputes, arguing that it is in disputants’ interests to abide by this Court’s rulings as the alternative would mean neither side being able to invest in a border area without fear of future retribution or loss. But underlying this entire debate is the principle of compliance of sovereign states interacting in a system of global anarchy.

As Kegley points out, sovereignty means that no authority is legally above the state except that which the state voluntarily confers on the international organisations it joins. In other words, states cannot be compelled to perform their legal obligations since there is no body to punish them if they don’t. So why do most states seem to abide by international law? One reason is reciprocity – that is, a state will meet its legal obligations because it wants other states to do the same. For example, the non-intervention norm requires states to refrain from acting uninvited within another’s boundaries. Then there is diplomatic immunity: a state will observe another’s diplomatic immunity because it wants the same observance in return. A less empirically-based principle for a state’s compliance is that of international standing. Reputation increases an actor’s soft power – ie, the ability to achieve its goals by non-military means. If you play by the rules you will receive rewards, says Kegley, and the long-term advantages of observing international law can be seen to outweigh the short-term benefits of violating it. This idea is imbricated with the concept of legitimacy. As Thomas Franck argues, legitimacy is functional when states desire to be recognised as a member of a community in which they learn to abide by the rules in order to secure the benefits of membership. Such self-enforcement, says Franck, explains the willingness of state leaders to comply with international rules since non-compliance leads to disrepute and isolation.

The legal status of these rules plays a part in the establishment of regimes – bodies of regulations which lay down the norms of conduct in areas such as trade, commerce, arms control and the exploration of the seabed. Stephen Krasner cites the General Agreement on Trade and Tariffs (GATT) – the forerunner of the World Trade Organisation – as a classic example of a successful regime while others include the Common Agricultural Policy and the Exchange Rate Mechanism. Going hand-in-hand with regimes are international organisations – global, like the UN; regional, like the EU and inter-governmental, like NATO. Pluralists see such organisations as portents of an international community of mankind – an interconnected global village. Realists, on the other hand, view them as instruments of their members. A case in point being the UN, which in effect can do little without the backing of the US. Turning this concept on its head, the US sought the backing of the UN to legalise its invasion of Iraq in 2003 for what might be called a ‘just war’.

So what is a ‘just war’.  The concept in a modern framework can be traced back to the thinking of Hugo Grotius, the Dutch lawyer who challenged the Catholic and Protestant belligerents in the Thirty Years War of (1618-1648) to abide by humane standards during combat. He said a war should only be fought in self-defence to punish damages caused by an adversary’s blatant act of armed aggression and that for war to be moral, it must be fought by just means without harm to innocent non-combatants. In the modern arena, the Geneva Conventions of 1949 - rules limiting the barbarity of war – can be seen as a logical development of Grotius’s principles.

But what would Grotius have made of Bush’s invasion of Iraq in 2003? Paust points out that many critics consider the attack a preventive war, which would be a breach of international law, thus making the US a ‘rogue state’.  Even realists were perturbed by the action. At the end of 2002, while the UN Security Council frantically negotiated prior to the invasion, 34 leading realists took out an advert in the New York Times saying that a war with Iraq was not in the national interest. John Mearsheimer and Stephen Walt also questioned why the US had abandoned its policy of deterrence, which had been so success sful during the Cold War. Some have even said, controversially, that George W Bush and his ally, Britain’s Tony Blair should be put on trial for war crimes by the UN’s International Criminal Court. The debate on this still goes on.

In conclusion, it is evident that law is a fundamental control element in the maintenance of international order. It oversees the rules of international trade and commerce; encourages reciprocity of behaviour between states at a diplomatic level; stands up for human rights, health and the environment via UN Resolutions and Declarations; arbitrates on border and regional disputes through the International Court of Justice; promotes the use of soft power as opposed to military intervention; and when combat cannot be avoided, puts checks and measures in place to ensure a ‘just war’ with as little barbarity and civilian loss of life as possible. When there are trangressions, rogue states’ leaders may be indicted as war criminals and punished by the UN’s International Criminal Court. So it can be seen that international law is not the ‘weak and defenceless’ construct described by Fried. Rather it is the nearest thing to an overarching authority we have under the global community’s prevailing condition of anarchy.