Proper Functioning of International Law - Essay Example

Are the attitudes and interests of the world’s different geo-political groupings of s too diverse to allow the proper functioning of international law? Consider the question with specific reference to the failure of the climate change summit in Copenhagen The concept of “international law” has fuelled academic debate regarding its interpretation, parameters and whether it in fact hinders measures to maintain international order.1 Additionally, notwithstanding the theoretical importance of international law making in areas such as human rights and as a check on autocratic state power; these measures are only as effective as their practical enforceability2. To this end, some commentators have challenged the efficacy of international law as a result of competing political interests at international level, arguing that customary law has effectively been replaced by national concerns in inter-state relations3. Directly correlated to this is the concept of “state” and “inter-state relations”, which in terms of individual human rights protections at international level has become a central issue particularly in context of rapid globalisation4. On this basis, Benevenisti and Hirsch comment that the “result is that, nowadays, people in different states are more significantly affected by activities that take place in other states”5. Moreover, the globalisation of world politics not only blurs the concept of state and the individual, it is evident that the end of the Cold War and the events of 9/11 have provided a catalyst for unprecedented challenges to the international order and national security policy. In turn this has fuelled debate as to whether the attitudes and interests of the world’s different geo-political groupings of states are too diverse to allow the proper functioning of international law. The focus of this paper is to critically evaluate this debate and in analysing the issue, this paper will highlight that the dichotomy between enforcement of international law and the primacy of national interests and contextually consider the recent failure of the conference on Climate Change in Copenhagen 2009. If we firstly consider the Copenhagen summit, the summit was held as being fundamental to securing a legally binding agreement between nations to reduce carbon emissions with a view to limiting global warming6. However, ultimately the United Nations Conference on Climate Change was a resounding failure as no concrete agreements were made and no commitments were provided that could be enforced or ensure accountability under international law7. For example, the Copenhagen Accord in reality amounts to nothing more than a statement regarding the need to address climate change and asserts the obvious point that “global warming represents the gravest threat to our shared humanity8”. Additionally a consensus was reached on the need to reduce global warming with no specific commitment or guarantee regarding carbon emissions’ goals. As a result, the Copenhagen Accord simply served to reiterate what is already known about climate change and the failure of the summit is reinforced by the fact that the United Nations Framework Convention on Climate Change specifically asserts that the accord “need not be binding” 9. Therefore, ultimately the Conference resulted in a shaky agreement that arguably gives lip service to rhetoric on climate change without any meaningful move towards implementing an enforceable framework for reducing carbon emissions under international law. It is arguable that the failure of the summit is attributable to the conflicting interests of certain members attending10. For example, two of the most important states were China and the USA; and whilst China had agreed a tactical commitment to reduce carbon emissions growth by 40% prior to the conference, President Obama’s administration was unable to offer similar commitments. As a result, former Prime Minister Gordon Brown commented that: “If America and China were able to show that they were doing more...could, then all countries.... would prepare to go to their highest level of ambition”11. Brown’s comments highlight the central problem in the adequate functioning of international law due to the intrinsic complexity of the contemporary framework of international relations. Indeed, the failure of Copenhagen further highlights the point that the operation of international law is intrinsically dependent on where the balance of power lies in the framework of international relations12. This is reinforced by Brown’s frustration at the anti-climax of the negotiations where he asserted that: “Never again should we let a global deal to move towards a greener future be held to ransom by only a handful of countries”13. Therefore it is submitted that whilst on the one hand the world is moving towards a globalisation paradigm particularly in business and technology, the operation of national interests and geo-political groups clearly influences the degree of cohesion at international level in terms of law making and law enforcement. Indeed, Zadeck comments that it is inherently unrealistic to expect a one size fits all legal policy at international level: “Seeking consensus between 193 sovereign states through a zero-sum negotiation process was always going to be a fool’s errand”14. Therefore under Zadek’s line of argument, the overriding national interest and fragmentation of geo-political groupings represented at the conference means that ultimately, the Copenhagen conference was always going to fail in reaching a binding legal agreement. In turn, this would suggest that the relationship between national interests and the very character of inter-state relations means that the scope for international law enforcement will always be limited. Indeed, this debate has become particularly evident in the protection of human rights under international law. Furthermore, it is submitted that consideration of the concept of “international law”, is important in considering the justification for the international justice mechanism as a framework for global accountability. Hedley Bull described international law as a “body of rules which binds states and other agents in world politics in their relations with one another and is considered to have the status of law15”. However, many commentators have questioned whether this theoretical ideal of “international law making” is actually reflected in fact by “the existence of any set of rules governing interstate relations, secondly, its entitlement to be called “law” and, thirdly, its effectiveness in controlling states in “real life” situations16”. For example, it is arguably the failures at the Copenhagen Convention that highlight that ultimately the influence of national interests and the structure of inter-state relations which impacts the proper functioning of international law, which is further compounded by the conflict between the sources of international law under customary law and various treaties and charters17. Indeed Carty observes that there is in no complete system of international law to provide resolutions to disputes in contemporary international relations due to the balance of power and primacy of national interests.18 Carty’s assertions are rooted in the premise that states continue to operate as “states of nature”, with no unequivocal demarcation of rights under international law, further compounded by ad hoc, unilateral interpretation by member states.19To this end, Kissinger highlighted the credibility problem with international justice mechanisms, further perpetuated by what he posited as the inconsistencies in the implementation of legal norms in the administering of justice in the power struggles amongst states; which in turn highlighted the underlying basis for the inherent “pitfalls” of any notion of a universal jurisdiction in international law20. Kissinger further argues that this is evidenced by the International Criminal Court (ICC) prosecution having discretion regarding accountability, which is further shaped by the fight between the overriding political interests of sovereign states21. Conversely, Roth posits that Kissinger’s criticisms of universal jurisdiction are exaggerated and ignores the wider risk of impunity for real tyrants. However, it is submitted that the implementation of universal jurisdiction is inherently reliant on consistent applicability and that it is futile to have the apparent framework of accountability if the substance in fact leads to the practical reality of impunity for global tyranny22. This is particularly evidenced by the law relating to legitimate use of force in the international arena under the 1945 United Nations Charter (the Charter). Moreover, the US position in the Security Council (SC) arguably enables the UN to be utilised as a tool to facilitate these objectives23. Moreover, the machinations of the SC are intricate, with many arguing that powerful member states within the SC create an imbalance of power in using the SC to further their political desires24. This is further compounded by the fact that states which are not signatories to the UN fall outside the jurisdiction of SC decisions and are subject to convoluted principles of international customary law25. As such, this creates scope for selective enforcement of international law, compounded by the conflict between applicability of Charter principles and established principles of customary law, which is inherently problematic in practice.26 Additionally, it has been observed that certain UN member states are clearly more influential, which creates the contradictory situation whereby decisions left to be determined by the SC could potentially result in selective enforcement of international law with some states being subject to harsh measures to restore peace, whilst turning a blind eye to others. This undermines the purpose of the UN Charter, with the ironic result that those in power can evade accountability under international law27. Therefore it is evident that the operation of international law in its current form is intrinsically dependent on where the balance of power lies in the international framework. Nevertheless, the historical importance of the development of international law making through customary principles and various treaties cannot be ignored. However, the theoretical ideal is significantly undermined by gaps between theory and enforcement. In turn, this has resulted in ad hoc decision making in the international arena often after the event, which undermines the purpose of international law as an effective mechanism to resolve international conflict and protect human rights abuses. Furthermore, without clear definition and powers still controlled externally, there is no true independence and the ICC lacks the ultimate, long-awaited international criminal jurisdiction28. This ambiguity leaves it open for member states to interpret the concept according to their own political needs and for some it seems that “Sovereign Capacity is incapable of legal limitation”29. Indeed, this lacuna between legal theory and practice is exemplified by the 2009 failure at Copenhagen, which highlighted that ultimately it is the national interests of a the powerful states within the international framework that shape international law making and agendas, which turn clearly impedes the consistent and proper functioning of international law. BIBLIOGRAPHY Baylis, J & Smith, S. (2001). The Globalisation of World Politics. Oxford University Press. Benvenisti, E. & Hirsch, M. (2004).The Impact of International Law on International Co-operation. Cambridge University Press. Hedley Bull., (1977). The Anarchical Society: A Study of Order in World Politics. Macmillan. Anthony Carty (2007). Philosophy of International Law. Edinburgh University Press. A, Cassese., (2005) International Law. 2nd Edition. Oxford University Press M, Dixon., (2007) Textbook on International Law. 6th Edition. Oxford University Press. M, Dixon., and R, McCorquodale., (2003) Cases and Materials on International Law. Oxford University Press. H, Fenwick., (2004) Civil Liberties and Human Rights. Routledge C Henderson, (2010). Understanding International Law. Wiley-Blackwell Patrick Kelly., (2000). The Twilight of Customary International Law. 40 VA. Journal of International Law. 449. Henry Kissinger (2001). The Pitfalls of Universal Jurisdiction, Foreign Affairs 80(4), July /August 2001: 86-96 T. Komori & K. Wellens (2009). Public Interest Rules of International Law: Towards Effective Implementation. Ashgate Publishing Megret, (2002)“War? Legal Semantics and the Move to Violence,” EJIL VOL 13, No 2, 261-399 A. Porter (2009). China and America to blame for Copenhagen failure says Brown Available from www.telegraph.co.uk/news/newstopics/politics/6859567 accessed December 2010. Kenneth Roth, (2001). The Case for Universal Jurisdiction. Foreign Affairs 80(5) September 2001: 150-154. M. Shaw, (2008). International Law. 6th Edition, Cambridge University Press David J. Scheffer, (1999) “The United States and the International Criminal Court”, 93 American Journal of International Law 12 . S. Zadeck, (2009) Learn from Copenhagen’s failure. Open Democracy available and retrieved at www.opendemocracy.net accessed December 2010. Legislation and Websites UN Charter available at www.un.org/aboutun/charter accessed December 2010. United Nations Draft Decision -/CP.15 Copenhagen Accord available at www.unfcc.int accessed December 2010 United Nations Framework Convention on Climate Change (UNFCCC) Available at www.unfcc.int accessed December 2010 Read More