Estimated reading time: 7 minutes
by Amna Khattak
International law has existed for a long time now. Documented or undocumented, it has been there. But, the question arises, how legitimate and effective has it been? This very question has been surfacing in literature and law institutions for years now and, yet, no consensus has been found.
It is not because the experts or institutions lack the capabilities to define it but more because of the inherent disconnect that exists while defining the nature of international law.
This article will try to address the question asked time and over again and then will leave it to the readers to decide what they think is the right course.
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The effectiveness of international law
For any law to be effective it needs to fulfill all the criteria that make it a ‘law’. The most basic and fundamental principle of any law is its supremacy. Thus, for any law to be considered a law, it should be thought of as commanding and must be held supreme.
Unfortunately, in the case of international law, its very supremacy and identity are contested. Moreover, it is hardly considered law in its true essence by the international players. Hence, for one to decide upon the effectiveness of international law, the controversy of its nature must be resolved first.
Schools of thought on the effectiveness of international law
There are two major schools of thought in this regard.
One view is that international law is not a law in its true essence, thus challenging its effectiveness. They make this claim on the ground that for any law to exist, there needs to be a political authority over it, which legally has the right to enforce its will, even if it is done through coercive means.
Apart from this, international law’s effectiveness is also compromised by the fact that, unlike other laws, it doesn’t even have a legislature to enact the rules. Moreover, for any law to be effective there needs to be a body that interprets the law.
Unfortunately, international law interpretation has always been subjective and done according to the interest of the most powerful states. This vulnerability to different interpretations also contributes to an overall lack of effectiveness.
Another basic reason why international law lacks effectiveness is that there is no fixed concept of punishment or repercussions if the law is violated.
The world has witnessed states violating international law time and again, be it a violation of basic human rights, violation of treaties, violation of international conventions, or even violation of basic principles like sovereignty. Loopholes like these have, undoubtedly, created room for critics to question international law’s effectiveness.
On the other hand, those who support the argument of international law being truly law state that the definition of law does not say anywhere that having a political superior authority is necessary.
Thus, negating international law’s existence over the absence of a defined authority is simply wrong. They further rebut claims with regard to the absence of a legislative body. They claim that there is a legislative body in the form of the United Nations General Assembly and the United Nations Security Council. These organs are being universally accepted by states and thus international law is enforced through them.
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The Security Council has the authority to even call peacekeeping forces to act on behalf of the United Nations. These peacekeeping operations are directed by the General Assembly. States also enter treaties under the umbrella of the United Nations which also act as a legislature.
On the criticism of lack of judicial machinery, proponents quote the International Court of Justice (ICJ) as an organ that gives International Law its much-needed judicial power. Effectiveness comes with fear by nation-states that any violation of international law might lead to cessation of ties between states, which means the violator state being cut off from not only that particular state but all states that come under its influence.
There is also a fear of sanctions, boycotts and even ending of all diplomatic ties if the United Nations so determine. All this adds up to the effectiveness of international law. They further assert that declaring international law not really being law or not being effective will be an injustice to those who had worked so hard for international law to come into effect.
After analyzing both sides of the picture, one may conclude that international law is a law and therefore is effective, but its effectiveness mechanism is weak and has some major loopholes that need to be addressed.
A body that has always and still can play a major role in ensuring international law’s effectiveness is the UN and the subsidiary bodies associated with it. However, before giving some suggestions one needs to know the work the UN has done so far in implementing international law.
UN’s work in international law
ICJ has multiple times settled disputes between states. There have been courts and tribunals which have effectively addressed war crimes, crimes against humanity and genocide. Under Chapter VII, Article 13(b) of the Charter the UNSC can even refer some cases that involve internationally accepted crimes like war crimes, crimes against humanity, genocide and others to International Criminal Court (ICC).
There is also a body that deals with the law of the seas and settles any disputes that arise. Apart from this, there are numerous treaties, conventions, organizations and bodies under the premises of the UN that checks the enforcement and effectiveness of international law. One such example is the World Bank resolving a dispute between two arch-rivals India and Pakistan over the Indus river by making them sign a treaty called the ‘Indus Water Treaty’.
In order to conclude the discussion, one may say that the capabilities and machinery of the United Nations should not be questioned. Rather, what should be looked at is the practice of powerful nations trying to politicize the process.
The United Nations is the most influential international organization which has been trapped in the politics of interest played by the powerful actors ultimately invalidating the legitimacy and effectiveness of international law – which it was made to propagate. It is time for the world community to unite and play their due role in upholding the sanctity of international law, and to make the United Nations work for what it truly came into being for: to maintain international peace and security.
References:
International Law By L. N. Tandon & S. K. Kapoor
https://www.un.org/en/our-work/uphold-international-law
https://www.e-ir.info/2020/11/08/how-successful-has-the-un-been-in-maintaining-international-peace-and-security/
The writer is a graduate of National Defence University Islamabad, Pakistan with a major in International Relations. She can be reached at khattakamna15@gmail.com
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