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International Law Essay Research Paper International LawInternational

International Law Essay, Research Paper

International LawInternational law is the body of legal rules that apply between sovereignstates and such other entities as have been granted internationalpersonality (status acknowledged by the international community). Therules of international law are of a normative character, that is, theyprescribe towards conduct, and are potentially designed for authoritativeinterpretation by an international judicial authority and by being capableof enforcement by the application of external sanctions. The InternationalCourt of Justice is the principal judicial organ of the United Nations,which succeeded the Permanent Court of International Justice after WorldWar II. Article 92 of the charter of the United Nations states: The International Court of justice shall be the principal judicialorgan of the United nations. It shall function in accordance withthe annexed Statute, which is based upon the Statute of the Permanentcourt of International Justice and forms an integral part of the presentCharter. The commands of international law must be those that the statesimpose upon themselves, as states must give consent to the commands thatthey 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 protectthe state by giving its rights and duties. This is done through treatiesand other consensual engagements which are legally binding. The case-law of the ICJ is an important aspect of the UN’scontribution to the development of international law. It’s judgements andadvisory opinions permeates into the international legal community not onlythrough its decisions as such but through the wider implications of itsmethodology and reasoning. The successful resolution of the border dispute between BurkinaFaso and Mali in the 1986 Frontier Dispute case illustrates the utility ofjudicial decision as a means of settlement in territorial disputes. Thecase was submitted to a Chamber of the ICJ pursuant to a special agreementconcluded by the parties in 1983. In December 1985, while writtensubmissions were being prepared, hostilities broke out in the disputedarea. A cease-fire was agreed, and the Chamber directed the continuedobservance of the cease-fire, the withdrawal of troops within twenty days,and the avoidance of actions tending to aggravate the dispute or prejudiceits eventual resolution. Both Presidents publicly welcomed the judgementand 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 thatmankind needs to conserve the living resources of the sea and must respectthese resources. The Court observed: It is one of the advances in maritime international law, resultingfrom the intensification of fishing, that the former laissez-fairetreatment ofthe living resources of the sea in the high seas has beenreplaced by a recognition of a duty to have due regard of the rights ofother States and the needs of conservation for the benefit of all. Consequently, both parties have the obligation to keep inder review thefishery resources in the disputed waters and to examine together, in thelight of scientific and other available information, the measuresrequired for the conservation and development, and equitable exploitation,of these resources, taking into account any international agreement inforce between them, such as the North-East Atlantic FisheriesConvention of 24 January 1959, as well as such other agreements asmay be reached in the matter in the course of further negotiation. The Court also held that the concept of preferential rights infisheries is not static. This is not to say that the preferential rights of a coastal Statein a special situation are a static concept, in the sense that thedegree of the coastal State’s preference is to be considered as forever at some given moment. On the contrary, the preferential rights area function of the exceptional dependence of such a coastal State on thefisheries in adjacent waters and may, therefore, vary as the extent ofthat dependence changes. The Court’s judgement on this case contributes to the development of thelaw of the sea by recognizing the concept of the preferential rights of acoastal state in the fisheries of the adjacent waters, particularly if thatstate is in a special situation with its population dependent on thosefisheries. Moreover, the Court proceeds further to recognise that the lawpertaining to fisheries must accept the primacy of the requirement ofconservation based on scientific data. The exercise of preferential rightsof the coastal state, as well as the hisoric rights of other statesdependent on the same fishing grounds, have to be subject to the overridingconsideration of proper conservation of the fishery resources for thebenefit of all concerned. Some cases in which sanctions are threatened, however, see noactual implementation. The United States, for example, did not imposemeasures on those Latin American states that nationalized privately ownedAmerican 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 forcefulsanctions through the United Nations are limited to situations involvingthreats to the peace, breaches of peace, and acts of aggressiion. In allother instances of noncompliance of international law, the charter’s owngeneral provisions outlawing the threat or use of force actually preventforceful sanction. Those same skeptics regard this as an appropriateparadox in a decentralized state system of international politics. Nonetheless, other means of collective sanction through the UN involvediplomatic intervention and economic sanctions. In 1967 the Security Council decided to isolate Southern Rhodesia(now Zimbabwe) for its policy of racial separation following its unilateraldeclaration of independence from Britain. As in other cases of economicsanctions, effectiveness in the Rhodesian situation was limited by theproblems of achieving universal participation, and the resistance ofnational elites to external coercion. With respect to universalparticipation, even states usually sympathetic to Britain’s policydemonstrated weak compliance. The decentralization of sanctions remains one of the majorweaknesses of international law. Although international bodies sometimesmake decisions in the implementation of sanctions, member states mustimplement them. The states are the importers and exporters in theinternational system. They command industrial economies and the passage ofgoods across national boundaries. Furthermore, the UN is wholly dependent on its members on operatingfunds, so no matter what decisional authority its members give it, itsability to take action not only depends on its decision but also on means. Without the support, the wealth and the material assistance of nationalgovernments, the UN is incapable of effective sanctions. The resistance ofgovernments to a financially independent UN arises principally on theirinsistence on maintaining control over sanctioning processes ininternational politics. Despite sweeping language regarding “threats to peace, breaches ofthe peace, and acts of aggression”, the role of the United Nationsin theenforcement of international law is quite limited. Indeed the purpose ofthe UN is not to enforce international law, but to preserve, restore andensure political peace and security. The role of the Security Council isto enforce that part of international law that is either created orencompassed by the Charter of the United Nations. When aggression occurs,the members of the Council may decide politically – but are not obligedlegally – to undertake collective action that will have sanctioning result. In instances of threats to or breaches of the peace short of war, they maydecide politically to take anticipatory action short of force. Moreover,it is for the members of the Security Council to determine when a threat topeace, a breach of peace, or an act of aggression has occured. Even thidetermination is made on political rather than legal criteria. TheSecurity Council may have a legal basis for acting, but self-interstdetermines how each of it members votes, irrespective of how close toaggression the incident at issue may be. Hence by virtue of both itsconstitutional limitations and the exercise of sovereign prerogatives byits members, the security council’s role as a sanctioning device ininternational law is sharply restricted. As the subject matter of the law becomes more politicized, statesare less willing to enter into formal regulation, or do so only withloopholes for escape from apparent constraints. In this area, called thelaw of community, governments are generally less willing to sacrifice theirsoverein liberties. In a revolutionary international system where changeis rapid and direction unclear, the integrity of the law of community isweak, and compliance of its often flaccid norms is correspondinglyuncertain. The law of the political framework resides above these other twolevels and consists of the legal norms governing the ultimate powerrelations of states. This is the most politicized level of internationalrelations; hence pertinent law is extremely primitive. Those legal normsthat do exist suffer from all the political machinations of the states whomade them. States have taken care to see that their behaviour is onlyminimally constrained; the few legal norms they have created always provideavenues 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, asfriendships and emnities change,, some bilateral law may cease to beobserved among new emnities, but new law may arise among new friends whohave newfound mutual interests. In the meantime, some multicultural lawmay have been developed. Finally, research suggests that the socialeffects of industrialization are universal and that they result inintersocial tolerances that did not exist during periods of disparateeconomic capability. On social, political, ane economic grounds,therefore, international law is intrinsic to the transformation andmodernization of the international system, even though the “law of thepolitical context” has remained so far.