Sample Undergraduate 2:1 International Law Assignment

To what extent can international law be deemed binding internationally?

Introduction

International law exists and functions as a complex network of legal principles that aim for international peace and order, and promote the acceptance of internationally shared aims.^[1]  It is generally identified as a ‘benchmark and guideline’,^[2] though the basis of its binding force depends on the source of the rule.  A central principle of international law is that each state is sovereign and equal,[3] although the increasing force of international law has bred the notion that no state can acquire absolute sovereignty.[4]  It has been clearly expressed by international tribunals that, should a conflict arise between international and national law, the former prevails on the international plane without automatically invalidating the latter.[5]  Where the obligation leaves the means open, states are able to determine the way in which the required international result is to be achieved.  The question is therefore which rules bind a state and how far consent and legitimacy help explain why states observe them.

International Law and State Consent

State consent plays a core role in determining the extent to which international law can be deemed binding.[6]  It is indeed argued that implied or express consent is a central component of international law, and on the strict consent theory, that no state is bound without its consent.[7]  This view is rooted in the notion that the binding force of international law relies on the will and consent of any particular state.  States will be more likely to consent to international law if it respects state sovereignty, and furthers international interests.[8]  A state may therefore be more willing to consent to a treaty if it perceives it to be legitimate.[9]

A treaty in force binds its parties and must be performed in good faith. It does not of itself impose obligations on a third state without its consent.  A starting point for identifying other rules that bind states is the Statute of the International Court of Justice (ICJ).  Article 38 provides a list of the various sources of international law, which includes ‘international conventions…international custom…[and]…general principles of law recognized by civilized nations’.  Article 38 lists no general order of priority among these sources. A rule of customary international law may bind a state without its individual consent. A state which clearly objected while the rule was forming and has maintained its objection may avoid its application, but no state may opt out of a peremptory norm such as the prohibition of genocide. Under Article 25 of the UN Charter, members must also carry out binding Security Council decisions even if they opposed them.[10]  State consent is central to the ICJ’s jurisdiction in contentious cases. Once it has jurisdiction, the Court determines the applicable law under Article 38.[11]

International courts and tribunals may exercise only the jurisdiction conferred on them.[12]  The ICJ may need to consider national law when deciding an international dispute.  Questions of international law may pertain to the creation and meaning of an international agreement, or arise when national law contravenes some international obligation.[13]  International courts and tribunals consistently state that, when a conflict materialises between international obligations and national law, states are expected to comply with international law.[14]  This rule was reflected in the draft declaration of the International Law Commission on the Rights and Duties of States, Article 13 of which stipulates that:  

Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.

This was later reiterated in Article 27 of the Vienna Convention on the Law of Treaties 1969, which states that ‘a party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty’.  Article 27 also states that this rule ‘is without prejudice to Article 46’.  Article 46 allows a state to submit that its consent to an international treaty is invalid if there was a manifest violation of a rule of its internal law of fundamental importance concerning competence to conclude treaties.[15]  The Permanent Court of International Justice in Exchange of Greek and Turkish Populations[16] held that a state that has assumed international obligations must modify its national legislation where necessary to satisfy such obligations.  Various human rights tribunals have also confirmed that international obligations take priority over national law when a conflict arises between the two.[17]  For example, the Inter-American Court of Human Rights’ Advisory Opinion on International Responsibility for the Promulgation and enforcement of Laws in Violation of the Convention states that the rules requiring good faith and precluding reliance on domestic law to justify non-performance ‘may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice even in cases involving constitutional provisions’.[18]  The Court distinguished a finding of incompatibility with the Convention from a ruling on a law’s domestic effect.  This indicates that international law is generally binding in that states are expected to obey binding principles of international law.

International Law and State Compliance

Prominent academics such as Henkin argue that almost all states obey almost all principles of international law in almost all cases.[19]  One explanation for this is that perceived legitimacy promotes compliance.  Others academics, such as Chayes, suggest that state compliance with international law is promoted due to the dynamic created by the international legal regime that they are a party to.[20]  Both approaches appear to be based on some form of fairness requirement, in that states are more likely to comply with international law if they deem it to be legitimate.  Therefore, compliance with international law may depend on the extent to which it is deemed legitimate by states.[21]  This directly relates to state consent in the case of treaties.  Once a treaty binds a state, a change in its view of the treaty’s legitimacy does not of itself release it from the obligation to obey.  By contrast, rules of customary international law are established through a general practice accepted as law. Widespread participation alone does not suffice, nor is compliance assured once the rule is established.  Compliance is encouraged when principles and rules are internalised through national legal frameworks.[22]

International law may be identified as a unique legal framework, in which binding obligations coexist with considerable reliance on voluntary compliance.  Morgenthau for example recognises this, and argues that ‘to deny international law exists as a system of binding legal rules flies in the face of all the evidence’.[23]  The effectiveness of international law depends in part on compliance, because a state ordinarily has to resolve any conflict with its national law in order to comply with its international obligations.[24]  This has achieved convergence, because the overriding status of international law provokes the voluntary reform and development of national law.  State consent has a central role in this respect, because it is based on the principle that states that consent to international law may be more inclined to cooperate and comply with it.  A state remains bound by an obligation it has assumed even if it later fails to comply.[25]  States can also exercise considerable discretion in deciding how an international law will be incorporated into national law.  This has given rise to a co-dependency culture, which Nussbaum describes as thus: ‘the law of nations is a law among nations’.[26]  An example of this may be found in the jurisdiction of the International Criminal Court (ICC), which seeks to maintain international justice.[27]  The ICC exercises criminal jurisdiction over individuals. The responsibility of states is a separate question.[28]  Where a state with jurisdiction is investigating or prosecuting the same case, the case is inadmissible before the ICC unless the state is unwilling or unable genuinely to carry out the proceedings.[29]  Certain limits on the ICC’s jurisdiction are geared towards maximising state cooperation.  State sovereignty is preserved by the fact that the ICC can only respond to certain, particularly serious, crimes, such as genocide and crimes against humanity.[30]  The ICC’s jurisdiction is not universal – it operates in a complementary manner to the criminal institutions of states.[31]  Consent need not come from the accused’s state. For example, the ICC may try a national of a non-party state for a war crime committed on the territory of a state party. The UN Security Council may also refer a situation under Chapter VII of the UN Charter.[32]  The ICC respects and preserves the jurisdiction and competence of states, hence maximising its legitimacy, and promoting state compliance.[33]

Conclusion

At its very core, international law is constituted of a variety of norms that the international community itself has developed.[34]  It is this foundation of international law that enables it to boast binding authority.  State consent is central to treaty obligations, while the perceived legitimacy of a rule can help explain compliance.  It is indeed generally accepted that international law ‘exerts a pull toward compliance…because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process’.[35]  States participate in international law, and thus internalise them, which promotes compliance because an inextricable link between national and international law is created.[36] Therefore, a treaty binds its parties, and customary rules can bind states that have never agreed to a treaty on the subject. Consent and legitimacy help explain why states accept and observe those obligations, but a breach does not remove their binding force.

Bibliography

Books & Journals

Arsanjani, MH., ‘The Rome Statute of the International Criminal Court’ [1999] 93 American Journal of International Law1

Aust, A., Handbook of International Law (2^nd edn, Cambridge University Press 2010)

Cassese, A., International Criminal Law (Oxford University Press 2008)

Chayes, A & AH Chayes, The new sovereignty: Compliance with treaties in international regulatory regimes (Harvard University Press 1995)

Dixon, M, R McCorquodale & S Williams, Cases and Materials on International Law (Oxford University Press 2011)

Evans, M., International Law (4^th edn, Oxford University Press 2014)

Fisher, R., Improving compliance with international law (Vol. 14, University of Virginia Press 1981)

Franck, TM., The Power of Legitimacy Among Nations (Oxford University Press 1990)

Franck, TM., Fairness in International Law and Institutions (Oxford University Press 1998)

Goodman, R & D Jinks, ‘Incomplete internalization and compliance with human rights law’ [2008] 19 European Journal of International Law 4

Guzman, AT., ‘A compliance-based theory of international law’ [2002] 90 Cal. L. Rev. 1823

Henkin, L., How nations behave: Law and foreign policy (Columbia University Press 1979)

Hollis, DB., ‘Why State Consent Still Matters-Non-State Actors, Treaties, and the Changing Sources of International Law’ [2005] 23 Berkeley J. Int'l L 137

Jessberger, F & J Geneuss, ‘The Many Faces of the International Criminal Court’ [2012] 10 Journal of International Criminal Justice 5

Kaczorowska-Ireland, A., Public International Law (5^th edn, Routledge 2015)

Klabbers, J., International Law (Cambridge University Press 2013)

Koh, HH., ‘Transnational Legal Process’ [1996] 75 Nebraska Law review 181

Krisch, N & B Kingsbury, ‘Introduction: Global Governance and Global Administrative law in the International Legal Order’ [2006] EJIL 1

McGoldrick, D., ‘The Boundaries of Justiciability’ [2010] 59 International and Comparative Law Quarterly 4

Morgenthau, HJ., Politics Among Nations: The Struggle for Power and peace (2^nd edn, Alfred A. Knopf 1954)

Nussbaum, A., A Concise History of the Law of Nations (Macmillan 1947)

O’Brien, J., International Law (Routledge 2001)

Paust, JJ., ‘The Reach of ICC Jurisdiction over Non-Signatory Nationals’ [2000] 33 Vanderbilt Journal of Transnational Law1

Schabas, WA., An Introduction to the International Criminal Court (4^th edn, Cambridge University Press 2011)

Shaw, MN., International Law (7^th edn, Cambridge University Press 2014)

Thirlway, H., ‘The Sources of International Law’ in International Law (MD Evans ed, OUP 2010)

Trahan, J., ‘Is Complementarity the Right Approach for the International Criminal Court’s Crime of Aggression?: Considering the Problem of ‘Overzealous’ National Court Prosecutions’ [2012] 45 Cornell International Law Journal569

Verzijl, JW., International law in Historical Perspective (Vol. 1, Leiden 1968)

Wallace, R & O Martin-Ortega, International Law (7^th edn, Sweet & Maxwell 2013)

Waters, MA., ‘Mediating norms and identity: The role of transnational judicial dialogue in creating and enforcing international law’ [2004] 93 Geo. LJ 487

Driscoll, WJ, JP Zompetti & S Zompetti (eds), The International Criminal Court: Global Politics and the Quest for Justice (International Debate Education Association 2004)

Cases and Opinions

Exchange of Greek and Turkish Populations, Advisory Opinion, 1925, PCIJ, Ser B, No 10

Inter-American Court of Human Rights, Advisory Opinion, OC-14/94, Ser A, No 14, 116 ILR 320