International law

Test 5: Conceptual Challenges to IL

Contemporary IL is a vast field of diverse specialized regimes that incorporate laws of both coexistence and cooperation. As sovereign entities, states are the sources of their own power. While they do not recognize a higher authority, “almost all nations observe…almost all of their [international] obligations almost all of the time.” Despite itsdecentralized structure, contemporary IL is perceived as legitimate because it is based on mutual consent, and largely codifies pre-existing norms and practices. IL governs the interactions between sovereign nations by establishing norms of acceptable behavior according to standards expressed by the global community. Laws of coexistence are based on principles of self-determination, territorialintegrity and pacta sunt servanda. Laws of cooperation allow states to address global issues of international concern and pursue shared objectives. These categories are relevant but may be misleading because the concepts are not necessarily exclusive or comprehensive. Nonetheless, they facilitate an understanding of IL regimes “as mechanisms for restraining states and achieving common aims.” TheProblems discussed in this chapter illustrate concerns about the legitimacy and relevance of IL. Some scholars criticize IL for its “infinite flexibility” in the hands of dominant powers, and its “moralistic” view of reality. However, considering the diverse needs of its application, the flexible and moralistic nature of IL is arguably why its instruments and institutions are so appealing andeffective.
The legitimacy and relevance of IL can hardly be questioned, particularly considering recent trends of “increased global interdependence and the heightened need for international cooperation to solve transnational problems.” Yet many IL critics continue to focus on issues of compliance and enforcement by questioning the validity of context-specific outcomes where “social conflictis increasingly met with flexible, conceptually determined standards and compromises.” It cannot be denied that politics constantly shape the face of the law at both the international and domestic level. For better or worse, strict interpretations of law and justice must sometimes yield to the reality of political situations. This issue was illustrated by the US response to al Qaeda’s 9/11terrorist attacks on the Pentagon and World Trade Center. After 9/11, US acts of pre-emptive “self-defense” against Afghanistan, its treatment of detainees in Guantanamo and Baghdad, and UN Security Council anti-terrorism sanctions were all publicly debated and formally challenged in various international forums. Without commenting on the appropriateness of the US response to 9/11, which is andwill continue to be scrutinized by the world community, it is significant that any potential IL violations did not go unnoticed or uncommented on in the international arena. Moreover, there is usually more than one IL regime operating within the context of any given international situation, and “the international legal process has never been the province of states…alone.” Despite thequestionable legality of US force in Afghanistan, the reality is that the Taliban were already subject to universal censure due to severe human rights abuses that were occurring in the country. Just because this justification is moralistic does not make it any less compelling.
IL influences and constrains state behavior in important ways. Although IL enforcement mechanisms are relatively weak, muchof IL is self-imposed and many states are internally driven to respect the rule of law. States comply with IL for many reasons – adherence may be based on calculated self-interests, respect for tradition, preservation of their reputation and credibility, or “disinterested concern for others.” Some states are subject to self-regulation, and in situations where US actions have conflicted with...