Why Do States Comply With International Law - Essay Example

Why do s comply with International law An Analysis Paper Introduction At the end of the 19th, the whole of the 20th century and in the beginning of the 21st century the interactions of the nations of human civilization have increasingly become complex and interconnected. In fact, most if not all countries in the world see themselves as part of a "family of nations" which is commonly referred to as the international community. And just as there has been the apparent need to govern the relations of individuals in the context of the state so too is there a need to have the same for states. After all on the level of international relations states are treated as individuals dealing with other individuals. In the past three centuries, the growing intricacies in the interactions of states have become the basis for the improvements made to international law to govern, encompass and to have a better system to facilitate these relationships. Despite the significant advancements made in international law it is still confronted by numerous challenges, problems and issues. Adversities towards international law arise from a wide variety of concerns. There are the variations as to how states view international law. Some states do not agree to the basis of international law, and some even see it as oppressive and arbitrary. Others do not have faith in international law dues to the difficulty in its enforcement. Furthermore, others hold the conviction that international law has failed to yield the benefits and advantages it is supposed to provide. Moreover, some states even see themselves as beyond the reach of international law. All these problems raise significant questions as to international law. This paper seeks to explore these pertinent questions. In particular, the discussions that are undertaken would address the question: "Why do States comply with International law?” Points of Discussion The main segments of analysis in this paper will dwell on the following: 1) The current international enforcement system; 2) The difference between enforcement systems under domestic law and international law; and 3) A Critical analysis of the strengths and weaknesses of the current enforcement system The first segment is to explore current means by which international law is enforced and how compliance to it can be attained. The second segment would compare international law to domestic or national law on the aspect of enforcement. Lastly, the third segment of the discussion will be an assessment of the advantages and disadvantages of in international law given its current enforcement framework. Preliminary Discussions International Law In this paper, the term international law is to refer to public international law. This nuance would set aside the unnecessary discussion as to private international law which this paper would not deal on. Moreover, there is the need to establish the definition of international law. International Law consists of the rules and principles of general application dealing with the conduct of States and of international organizations in their international relations with one another and with private individuals, minority groups and transnational companies (Beckman and Butte 1). Furthermore, International law is sometimes called the public international law to distinguish it from private international law, though, as already explained, even this can lead to misunderstandings. Whatever the connection international law has with other systems of law, it is clearly distinguished by the fact that it is not the product of any national legal system, but of the states (now over 190) that make up our world (Aust 2-3). Another delineation that needs to be made is between enforcement and compliance. In most scenarios the issue of enforcement is geared towards arriving at compliance to international law. However, it must be established that not all compliance is derived from enforcement. There exists the kind of compliance that is due to the volition of states free from the measures of enforcement. As such this paper will not deal with compliance without enforcement. Rather this paper will deal with enforcement with the goal of compliance. Furthermore, compliance or lack thereof will be discussed as a logical consequence of the enforcement scheme in international law. System of Enforcement of International Law Any legal system, and international law is not an exception, functions as a normative subsystem of a wider social system (a state, a federal unit, an international or supranational organization, international society) that in the final analysis determines laws specific characteristics. International laws main features are moulded by the nature of international society (Mullerson, 207). Furthermore, International society, however, remained a constitution - free zone. On the contrary, the controllers of the national public realms found that they continued to be an ancient regime free agent. They are constrained only by necessity and of the actual, in a form of co-existence, which was clearly not a society, with only the most crude for organizing systems (diplomacy, war). They also have a legal system which, fortunately, seemed to them, and their acolytes, to lack most of the essential characteristics of their national legal systems, not least most a transcendental constitutional structure (Allott 35). Moreover, International society, in comparison with many other societies, is a rather loosely integrated or weak society. Its principal actors - states- are usually more concerned with domestic issues than external affairs (Mullerson, 209). This clearly establishes the unstable system in which international laws operate. Give the foregoing discussion it can be deduced the status quo in terms of the international community’s system of applying international law is constantly in the state of flux and be relied upon to be standardized, universal and encompassing. This difficulty stems from the geo – political setup wherein the relativism of states as the principal actors in the system are the norm. In short everything tends to be viewed and approached from a case to case basis and as exceptions to the generally accepted principles of international law. This is compounded by the problem in terms of compliance. Compliance thus involves conformity with different sets of norms made by and directed to different sets of actors, rather than the traditional model of inter - state rules implemented by national measures (Kingsbury 357). This reinforces the idea that the scheme in place is highly flexible and state based. Ranney (471) adds that the execution of international law is also decentralized and feeble, and for the most part, he rules are enforced only by the voluntary compliance of nations. This forwards the idea that compliance or is largely by initiative and there exist no potent mechanism for enforcement. International Law’s weakness in enforcement The important point to underscore is that most theories of compliance with international law are at bottom theories of the behavioral influence of legal rules. Indeed, in practice the line between theories of compliance and theories of the effectiveness or impact of rules can blur (Raustiala and Slaughter 539). This establishes the problem that there is a disparity in terms of the principle behind international law and its actual application. Whereas every day, newspaper reports crimes, it is usually only when a flagrant breach of international law occurs that the media take notice of international law. This can give a distorted impression of the nature of international law. International law has no ready sanction for its breach. Because there is no international police force or army that can immediately step in, international law is often perceived as not really law. However, the record of even the most developed domestic legal systems in dealing with crime does not bear scrutiny (Aust 3). In contrast to domestic law in domestic law the state through the government can enforce such law. The state has all the power and means to ensure compliance to domestic law. In fact, that the consequence for defying state laws is to be subject to the various tools of state coercion or legitimate use of force. This is supported by Howse and Teitel, (2) who contend that law’ is the binding edict of a sovereign with coercive force, at least, in principle, over the subjects to whom the legal commands are addressed. If this is so, then, even if actual rates of compliance with international law were superior to those for norms that are commands of a sovereign with a monopoly of violence over the subjects of law, demonstrating this would not itself be an answer to the positivist objection. Indeed, many forms of normativity, including customs and etiquette within a particular sub political communities, exhibit very high rates of compliance or obedience, and the positivist has a point in that this does not, in ordinary language, induce us to call them ‘laws’. Furthermore, Petersen (1249) states that the possibility of retaliation establishes a decentralized sanction system. A state may punish another state for non-compliance. However, this mechanism is also less than perfect because imposing a sanction on another state may be very costly for the punishing state. Particularly, in multilateral situations, states have an incentive to free-ride and to hope that another state will punish the violator. This means that international in some if not all instances are enforced by intervention or by taking the law into the hands of an actor and not an authority who is impartial and sovereign over the actors. This is seen in acts of unilateralism, interventionism and enforcement of “a version” of international law by some states. It must also be pointed out that according to the standard argument, a major reason why states keep commitments, even those that produce a lower level of returns than expected, is because they fear that any evidence of unreliability will damage their current cooperative relationships and lead other states to reduce their willingness to enter into future agreements (Downs and Jones 95-96). Pros of International Law While the distinctive association of national law with the courts, sanctions, and formal legal process is much less pronounced in the international legal system, international law function in ways, which are not replicated to the same extent by non - legal international rules. These include the connections between international legal rules and national legal systems. The linkages between issues established by the international legal doctrine, the definition and allocation of roles, rights and responsibilities, modes of legitimization and delegitimization of particular positions, the validation and invalidation of distinctive forms of reasoning, a variety of distinctive institutional settlement functions, and the influence exercised by the community of international law practitioners (Kingsbury 368-369). This establishes that international law in many ways; levels and aspects exceed the capabilities of domestic law. The implications of these proficiencies cannot be undervalued. However, the issue still remains. Do all of these advantages of international law outweigh the fact that it suffers on the area of enforcement? This debate is still ongoing. One group of theorists argues that a law lie in enforcement while others argue that international is so specialized that it cannot simply be reduced to enforcement. However, would it not be more efficient and beneficial if the matter of enforcement is settled and international law enjoys the same alongside the benefits and advantages already conceded to it? Such a advancement if undertaken would become the final evolution of international law. References Ranney, Austin. Governing: An Introduction to Political Science 8th ed.. First Lok Yong Road, Singapore: Pearson Education (ASIA). 2003 Print. Mullerson, Rein.” Anarchophilia, Hegemony and International Law. “Anuario Mexicano de Derecho Internacional, vol. IV, pp. 205 – 248. Web. Dec. 1, 2010. Petersen, Niels. “How Rational is International Law?.” The European Journal of International Law Vol. 20 no. 4 2010. Web. Nov. 30, 2010. Allott, Philip. “The Concept of International Law.” The European Journal of International Law vol. 10 31-50 1999. Web. Dec. 1, 2010. Raustiala, Kal and Slaughter, Anne-Marie. “International Law, International Relations and Compliance”. HANDBOOK OF INTERNATIONAL RELATION. Web. Dec. 1, 2010. Downs, George and Jones, Michael. Reputation, “Compliance and International Law. “Journal of Legal Studies vol. XXXI January 2002. Web. Dec. 1, 2010. Kingsbury, Benedict. “The Concept of Compliance as a Function of Competing Conceptions of International Law. “Michigan Journal of International Law vol. 19 No. 2 Winter 1998. Web. Dec. 1, 2010. Howse, Robert and Teitel, Ruti. “Beyond Compliance: Rethinking Why International Law Really Matters.” Global Policy Volume 1 . Issue 2 . May 2010. Web. Nov. 30, 2010. Beckman , Robert and Dagmar, Butte. “Introduction to International Law.” http://www.ilsa.org/jessup/intlawintro.pdf. Web. Dec. 1, 2010. Aust, Anthony. “International law.” Handbook of International Law. Cambridge Press. Web. Dec. 1, 2010. Read More