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EFFICACY OF INTERNATIONAL LAW

INTRODUCTION

In an era of unprecedented globalisation and global connectivity, a common set of norms is indispensable for the continuation of a healthy body politic and trade. Starting as early as the 19th century, International Law has started to become more relevant and more applicable in daily affairs of the world.

In the current state of affairs, International Law is the collection of norms and standards that apply to sovereign states and their functioning, with these laws being implemented by Internationally accepted organisations[1].

International Law is primarily governed by the United Nations and its subsidiary entities, keeping in line with the Charter of the UN. There are, however, many issues plaguing the current structure of International Law, particularly surrounding its applicability and efficacy. These two aspects of International Law have been severely challenged in recent times by nations, which have forced revisions in the philosophies that have guided these laws till now.

HISTORY

The background of International Law stretches back to the 19th Century, with the first forms of the same being seen in Europe. The Concert of Europe, a system established by Austrian Diplomat Klemens Von Metternich, was the first form of a continent-wide assembly, constituted intending to resolve disputes between nations amicably without resorting to war[2].

While most of the world was not involved in this system, with increased colonialism in the decades that followed, most of the world got involved through their colonial overlords.

After the First and Second World Wars, the need and importance of replacing a few nations’ decisions in global decisions with a truly global decision-making entity became necessary. From the destruction of the Second World War, under the stewardship of the US, the United Nations was formed as an entity tasked with maintaining world peace by acting as a forum for diplomacy to prevail.

Modern International Law was created from the historic rulings at the Nuremberg and Tokyo Trials along with various resolutions passed by the UN over the decades preceding the current time.

DEBATED EFFICACY

International Law has been instituted as a means of maintaining global order. However, in recent times, we have observed that there are many instances where International Law does not have the intended effect.

The primary problem facing International law is the inherent clash between it and domestic laws. For International Law to be effective, the signatory nations must abide by it at all times, without exceptions. However, International law cannot be expected to fit the bill for every nation abiding by it as the countries have different and distinct needs for their administration. There are also provisions in International Law that domestic laws will not be affected by International Laws[3].

This in itself reduces the efficacy of International Laws by a great margin due to the biases that are most certainly to be found in domestic laws. In the scenario of a dispute between two nations with opposing domestic laws, the applicability of International law will be difficult due to the inherent difficulty in ascertaining the degree of overruling domestic laws in cases of all parties involved.

There exist threats to International Law in the forms of legislation passed by nations. The biggest example of this is the American Service Members Protection Act 2002, which allows the US Government to declare war and invade the Hague (The seat of the International Court of Justice) in the scenario an American serviceman is arrested and successfully tried[4].

Such laws are directly at odds with the intention behind implementing International Laws.

Another example of domestic laws having greater authority than International Law is in climate change. Despite UN Organisations creating regulations and various treaties that aim towards reducing carbon emissions, the result is frustratingly out of reach.

The reason for this is the fact that most International treaties are not legally binding, which allows nations to deviate from the targets stated[5]. In such cases, with the International Treaties and many laws, being non-binding on the signatories, the efficacy of the International Law is called into question.

With International Law being superseded by domestic laws due to the different nature of every nation, it is not far-fetched to cast aspersions on the efficacy of International Law. With these aspects, International Law is difficult to implement.

EXISTING BIASES

One of the important canons of International Law is the unbiased nature and implementation of the same. Without an unbiased application of International Law, the result which was theorised will never be achieved.

In current global politics, the unbiased nature of International Law is heavily doubted. These biases are not found in the drafting of the laws themselves, but in their implementation or more specifically, their interpretations[6].

In the current world, the biases of International Law are being seen in its implementation. International Law organisations are overly harsh on certain actions by some countries while being completely silent on the same actions by other countries.

The biggest example of this is the stand-off between the West and Russia. With an increasingly belligerent Russia, the West has been at odds with it since 2014. In the current war in Ukraine, UN Organisations have been unanimous in condemning the invasion and have pushed for a ‘rejig’ of the Russian Government, namely the ouster of Vladimir Putin.

This could be seen in the arrest warrant issued by the International Criminal Court (ICC) March 2023[7]. However, this does not equal the reaction of UN entities to other events in modern world history.

In the 2003 war in Iraq that saw the ouster and execution of Saddam Hussein, the United States led the charge into Iraq and by all accounts engaged in attacks against civilians and military targets alike. US military involvement in Afghanistan shows the US Military engaging in activities that are directly barred by International Law, being termed as war crimes such as the Bagram Air Base massacre or the Kandahar Massacre[8]. However, the reaction of the UN to these atrocities has been rather tepid. Short of actual action, the UN issued statements condemning these actions and called for peace. However, these actions served no real purpose.

CONCLUSION

International law was put into practice over a century ago because of the increasing need for an organised manner of administering the world. With each war, the need for such laws increased, culminating in the present law system in practice.

International Law, however, has its shortcomings in implementation. The clash between it and domestic laws is becoming greater in number and the current non-binding nature of most laws and treaties is making the power of International Law and organisations lesser, causing more divisions.

The matter of inherent biases existing in International Organisations is becoming clear with each new encounter between various factions on the world stage. Unless these shortcomings are tended to, International Law will eventually devolve into mere suggestions of guidelines instead of administrative regulations.

Reference(s):

[1] Malcolm Shaw, ‘International Law’ (Britannica, 9 January 2024) <https://www.britannica.com/topic/international-law>  Accessed 25 January 2024

[2] Tsira Shvangiradze, ‘What was the Concert of Europe?’ (The Collector, 1 May 2023) <https://www.thecollector.com/what-was-the-concert-of-europe/> Accessed 25 January 2024

[3] Legal Information Institute, ‘International Law’ (Cornell Law School) <https://www.law.cornell.edu/wex/international_law> Accessed 25 January 2024

[4] New York, ‘US: Hague Invasion Act Becomes Law’ (Human Rights Watch, 3 August 2002) <https://www.hrw.org/news/2002/08/03/us-hague-invasion-act-becomes-law> Accessed 25 January 2024

[5] Daniel Bodansky, ‘Paris Agreement’ (Audiovisual Library of International Law, 12 December 2015) <https://legal.un.org/avl/ha/pa/pa.html#:~:text=Although%20ordinarily%20COP%20decisions%20are,Agreement%2C%20or%20CMA)> Accessed 26 January 2024

[6] Veronika Fikfak, Daniel Peat, Eva Van Der Zee, ‘Bias in International Law’ (Cambridge University Press, 11 March 2022) <https://www.cambridge.org/core/services/aop-cambridge-core/content/view/EBD75AF7B022D6B8D2172DF884E1CFAB/S2071832222000232a.pdf/bias-in-international-law.pdf> Accessed 26 January 2024

[7] Press Release, ‘Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova’ (International Criminal Court, 17 March 2023) <https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and> Accessed 26 January 2024

[8] Chris McGreal, ‘US soldiers ‘killed Afghan civilians for sport and collected fingers as trophies’’ (The Guardian, 9 September 2010) <https://www.theguardian.com/world/2010/sep/09/us-soldiers-afghan-civilians-fingers> Accessed 26 January 2024