International Relations - Essay Example

International Relations 2006 Outline: A) International law basics B) The concept of recipro C) The inherent limits of recipro principle and international law D) Mechanisms of ‘enforcement’ in international law E) The powerful players of international arena and the principle of reciprocity: 1. The reciprocal trade policy 2. The reciprocal war policy 3. The evolution of customary rules due to the principle of reciprocity F) Conclusion Description: In this paper we try to find out that if the more powerful states are the less likely they are to abide by international law, and the less powerful states are the more likely they are to abide by international law. International law comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations and the African Union (formerly O.A.U). (The nature of international law) Rules of international law cover almost every facet of inter-state activity (the use of the sea, outer space and Antarctica, international telecommunications, postal services, the carriage of goods and passengers by air and the transfer of money) and is a primary tool for the conduct of international trade. (The nature of international law) The basis of international law is the concern of the rights and duties of the states. In the system of values underlying international law is the principle of legal equals but not legal superiority. As the world of today grows interdependent more and more, every state is interested to abide by international law which ensures a stable environment for the international relations development. International law is believed to be based on reciprocity principle. The concept of reciprocity is fundamental to bilateralism. It means that equal social partners establish bilateral relationships that are not unidirectional but involve at least some element of quid pro quo. This concept of reciprocity may be responsible for a great deal of inter-state co-operation or exchange, outside or in addition to any international legal obligations. It is a principle of international law: in the context of general customary international law any state claiming a right under that law has to accord all other states has same right. (Byers) Norms of reciprocity emerged as meta-rules for the system in the absence of a recognized rule of law. We may talk of reciprocity in the case when parties’ incentives are aligned perfectly. (Parisis & Ghei, 2002) The vast body of literature proves that individuals are motivated by concerns of fairness and reciprocity. There’s no need for external enforcement mechanisms, such as a legal system, or a threat of coercion. Numerous authors (Axelrod R., Berg J.,) prove that cooperation is not based only on the model of self-interest and that reciprocity is an essential element of human behavior. The principle of reciprocity remains essential in international law, due to the dominant role played by customary law among the sources of international law. (Parisis & Ghei, 2002) The reason why nations respect the customs which usually develop into binding legal practice is reciprocity condition - role reversibility and repeat interactions. Each State can be on either end of a transaction, and undertakes similar transactions repeatedly. For example, the Law of the Sea supposes that the state could be the one exercising sovereignty over the territorial sea, or it could be the state of the flag of the ship. Both states are in the relation of interdependence: one cannot limit innocent passage through its own territorial sea without being limited by other states in the future. (Parisis & Ghei, 2002) Foni V. and Parisi F. (2003) in their work Matching Rules research the limits of matching rules which resemble reciprocity principle in fostering cooperative outcomes. The results of the research unveil the strengths and limits of matching rules in inducing optimal cooperation among heterogeneous players. The findings of evolutionary socio-biology also show that matching rules and reciprocity norms tend to emerge in the environments with homogeneous players, but do not thrive in highly heterogeneous groups. (Foni & Parisi, 2003) Lorimer, who is Public Law and the Law of Nature and of Nations professor at the University of Edinburgh, devoted several of lectures in public law during the 1870s to the impossibility of any reciprocal relations between European and Muslim states. The view that the racial differences might underlie political differences was widespread during that time. The ‘criterion’ for inclusion within the scope of international law was said to be the ability to engage in reciprocal relations, rendered variously whether determined by race or ‘civilizational stage.’ (Pitts) International law may be regarded as ‘weak’ law because of the problems of adjudication and enforcement. Law enforcement is hardly applicable to the conduct of the states as they are powerful in various degrees and may pose economic, political or military threat to each other. That’s why the best option to regulate the conduct of the states is to accept voluntary enforcement of the law. That’s why the USA was not formally condemned for Iraq invasion or earlier invasion of Grenada and Afghanistan. Despite the weak nature of the international law there is the legal body which enforces sanctions and penalties on malefactors of the international peace. It’s the Security Council. However in many cases the Council fails to enforce even the most fundamental of international norms if the interests of the Big Five are directly engaged. The Security Council is paralysed when it comes to such well-known to international community issues as Afghanistan, Iraq, Chechnya. However international relations can be regulated by different mechanisms of ‘enforcement’ such as termination of diplomatic relations, restriction of economic aid or cancellation of supply agreements, the expulsion or suspension from inter-governmental organizations, trading restrictions, etc. (The nature of international law) International law contains two concepts that are linked to reciprocity. The first concept is retorsion, which consists of a states response to another states unfriendly but legal act like declaring the diplomats of the opposing state persona non grata because of the expulsion of another state’s diplomats. The second concept is reprisal: when a state responds to an illegal act by another state. For example, when one state violates a treaty, the other party has the right to withdraw from the treaty. (Rever) The examples in the international relations history are numerous: break of diplomatic relations between the United Kingdom with Argentina for Falkland Islands invasion of the latter, suspension of Nigeria the Commonwealth in 1995 for the violation of human rights norms and many others examples can be found. However there is evidence that only powerful states have the privilege to use ‘enforcement’ mechanisms or sanctions effectively as an access to its markets (the reciprocal condition) is a valued resource. (Parisis & Ghei, 2002) The rule of reciprocity meant to be a basic concept of equity and equilibrium, in the context of international trade, becomes a “way of institutionalizing permanent inequality.” (Carlsen) The matter is that the different nations and their productive sectors are not the same while the major players use the same strategies. The US has biggest market in the world and a great export capacity derived from the production of huge surpluses. The other large-stakes players such as the WTO, the European Union “share the basic strategies of forcing open new markets for its goods, extending intellectual property rights, and transferring sectors from the public to the private realm.” (Carlsen) In this case more powerful countries are ripe for abuse. For example, the US often used Section 301 of Trade Act of 1974 which allows imposing tariffs unilaterally on the imports of a country the ‘unjustifiable’ transgressions of which restricted access for US goods. The evidence shows that the US used Section 301 when the sanctioned state had failed to lower its trade barriers. (Parisis & Ghei, 2002) National trade policy based on reciprocal concessions fails to raise living standards of its citizens and is self defeating. The reciprocal trade policy is strongly supported by the developing countries or countries in other words which have insufficient access to capital to facilitate development. (Pendleton, 1999) Refusing to allow domestic market access to foreign traders or investors on the reason of unavailability of reciprocal access, such nations lose more than gain. In this case they are left without foreign capital, something they need to develop. Giving more access to domestic markets helps the country in the long run. (Pendleton, 1999) According to economic theory unilateral trade liberalisation increases the economic welfare of the liberalising country. Along with monetary adjustments unilateral trade liberalisation generate similar benefits in the form of compensatory payments and employment effects as reciprocal trade liberalisation. The main reasons why governments prefer to liberalise trade through reciprocal agreements, rather than unilaterally, are political and legal rather than economic (Petersmann, 1994, p.31) If you are not one of the largest and profitable markets reciprocity in trade policy is most likely to fail. For most developed, and all developing and underdeveloped nations it is better to give as favorable terms to foreign traders as the citizens, so that foreign capital and investments will flow freely. Tariffs, subsidies and bounties and other market distortions hamper or deny market access and lower living standards as well as increasing unemployment. (Pendleton, 1999) Another example of how the power of states influences its policies is granting POWs’ status. Americans granted the status of POW to both the soldiers of the North Vietnamese Armed Forces and to the members of the Vietcong during the Vietnam War due to the element of reciprocity though the two categories of combatants were difficult to distinguish. However, the US refused to determine the status of prisoners held in Guantanamo Bay, Cuba explaining this by the difficulty of distinguishing between the Taliban and members of other groups such as Al-Qaeda. What’s the reason? (Belz, 2004) Belz believes (2004) that: “The change in US policy apparently stems from the overwhelming military advantage enjoyed by this country during the war in Afghanistan, the short duration of the war and the fact that the Taliban and the groups that fought by their side did not detain a significant number of American prisoners in comparison with the Vietnam War. These facts infringed upon the principle of reciprocity between the parties, nullifying the US interest in compliance with the laws of war as they relate to POWs.” The principle of reciprocity may also be used by individual states to influence the development, maintenance or change of particular customary rules. (Byers) For example, the Truman Proclamation issued in 1945 by President Harry Truman with Respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf. It stated: The Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. (Reproduced in Byers) Despite the novelty and inconsistency of the Proclamation with existing law other states rapidly adopted similar proclamations concerning continental shelves of their own. Later on it became a custom being confirmed in 1958 by its codification in the Geneva Convention on the Continental Shelf. Among reasons of the Truman Proclamation success there is one which supports our argument concerning the ability of the powerful states to impact international law practices. It is the position of the United States at the time of the claims – it was the world’s most powerful state. (Byers) The similar example of how some states have power to change customary international law is the Arctic Waters Pollution Prevention Act approved by Canada in 1970. The claim made by Canada was within the interests of all coastal states. This example shows the power of the state to change a customary rule using such a strategy that most states do not object the change but at the same time they do not benefit from the change directly. The state uses the principle of reciprocity to transform its claims and the responses of other states, into something from which most states could benefit but most likely they would not agree to it if initially the claims were directly presented. (Byers) An Act to Amend the Costal Fisheries Protection Act approved by Canada in 1994 is also the example of how the principle of reciprocity may be applied in a strategic manner to exert pressure on other states in the negotiation of treaties. (Byers) International law being based on reciprocity principle proclaims the equality of all states. Modern interdependent world is interested in a stable environment for the international relations development. Reciprocity is seen as tool to provide stable and mutually beneficial environment for functioning of the states. However, if to look on the reverse side of the medal we may discover that reciprocity principle and the sanctions work well for the benefit of powerful states. The reciprocity meant to be a basic concept of equity and equilibrium turns to be the field for the abuses to flourish. The examples of such abuses by more powerful international players are numerous: the use by the US of Section 301 of Trade Act of 1974 to induce other states to lower its barriers or granting POWs’ status by the US; or Arctic Waters Pollution Prevention Act and An Act to Amend the Costal Fisheries Protection Act approved by Canada Parliament which changed the customary law and which exert pressure on other states in the negotiation of treaties. The explanation for this can be the view of such authors as Foni V. and Parisi F. or Lorimer who believe that reciprocity norms is working in the environments with homogeneous players, but not in highly heterogeneous groups which is true for international game. References BELZ, D. (2004) Is International Humanitarian Law Lapsing into Irrelevance in the War on International Terror? Buchmann Faculty of Law Tel Aviv Tel Aviv University BYERS, M. Reciprocity and the Making of International Environmental Law. School of Law. Duke University. CARLSEN, L. Powerful Nations Try to Extend Special Privileges. What’s at Play at the WTO. /www.progress.org/2005/fpif72.htm retr. 3 Apr. 2006 FON, V. & PARISI, F. (2003) Matching Rules GEORGE MASON UNIVERSITY The nature of international law and the international system. /www.oup.com/uk/booksites/content/0199260729/dixon_ch retr. 3 Apr. 2006 PARISIS, F. & GHEI, N. (2002) The role of reciprocity in international law. George Mason University School of Law PENDLETON, M. (1999) Our Allegiance - Australians Or Global Citizens? . E Law. Murdoch University, Vol. 6. Num. 3 PETERSMANN, U. (1994) Why Do Governments Need the Uruguay Round Agreements, NAFTA and EEA? . Swiss Review of International Economic Relations p. 31. PITTS, J. Boundaries of International Law: Nineteenth-Century Debates Department of Politics. Princeton University REVER, J.-H. Reciprocity in Law and Anthropology. Fellow Kings College London, Centre of European Law. Read More