The existence of international law is primarily maintenance of peace and stability based on mutual respect for each state's territorial integrity and domestic jurisdiction: issues of distributive justice and the protection of basic human rights liberty, freedom and the right of self pursuit and happiness. The only question that can be asked is if the existence of international law is effective to contest manipulative and destructive leaders of states and the states themselves. The development of various institutions by the UN that govern the conduct of states and the enforcement of international law have to a large extent created stable environment between states but the weak states are begin alienated from the international community. The less significance of international law has made then more accountable to powerful nations not to the international community. This essay will elaborate and elucidate if international law matters in international relations or the big powers such as the United States does what they like and the weak states suffer the consequences.
International law was generally formulated to maintain international order to protect the sovereignty of the states .The states were primarily the subjects of international law the principal bearers of rights and obligations according to Higgins (1994:40) international law only exist to states. According to Baylis and Smith (2005:350) International law is the body of legal rules that apply between sovereign states and such other entities as have been granted international personality (status acknowledged by the international community).States in the international arena are expected to abide by the laws that govern there conduct but this has not always been the case in international relations as hegemonic states often violate the international laws without any reparations. Powerful nations such as America and Britain have repeatedly violated the international laws but they are not punished for it and weaker nations have been the most victims to the violation of international law.
International Law has set various institutions that are there to limit the acts of the states and regulate their behaviour. According to Brierly (59:1928) modern states under international law are perceived as equal entities that have absolute sovereignty. According to Hsiung (1997:8) international law can only exist only in an international system of nation states sovereign and know no higher authority where there is no vertical accountability only horizontal accountability between various units. But this has not been the case in the current international system as the powerful nations have displayed actions that make them look as if they are above the law. The doctrine of equality of states advocated by naturalist writes to international law according to Brierly (1928:66) is absolutely not certain in international order as states are politically unequal as is universally admitted and they also have unequal rights in international law. This can be noted that within the structures of the United Nations were the great powers posses a definite legal superiority over the other states by being allotted permanent seats on the Security Council. The actions of the United States as the hegemonic states in the international community have shown the insufficiency of international law to control its actions that defer international order.
According to Hsiung (1997; 11) if international law is so concerned with the international community order and the balance between community interests and the state sovereignty what about the realist assumption regarding the law incongruity with “national interests”. The powerful states always have a recourse open to them for the protection of their interests should international law be perceived as being inimical to them. Despite the United Nation’s goal of creating an equal environment for states to collaborate and co-operate the dominant nations always focus on the achievement of their national interests instead of the international community. Various statutes within international law and the ICC constitution have been violated by powerful nations but countries that do not possess political power and military power have been subjected to the severity of international law with its leaders being persecuted and tried in the International Court of Justice (ICJ).
Focusing on the acts of the United States of America will bring the full view of how powerful states often do what they like and the weaker nations often suffer the consequence of not abiding to international law. According to Hsiung (1997:17) the United States and the world reacted violently to the Iraq invasion of Kuwait in the summer of 1990 but this act could have been justified by the international community as the US jeopardize of the sanctity of international law perse because of its violation of the international law when it invaded Panama less then nine before in December 1989 which led to 4000 Panamanians being killed automatically led to counter violations by Iraq when invaded Kuwait. Panama invasion by the US was the violation of international law regarding the notion of sovereignty and non intervention that is enshrined in the international law statutes the US should have seek international community endorsement of the United Nations as the mother body that governs and enforces international law. These aggressive humanitarian intervention excuses by the United States to violate international law results in the many weaker nations struggling to develop after these militarily muscle demonstration wars. The US armed invasion also in Vietnam was also in opposition to the international law as this was a civil war and intervention in such an internal matter was illegitimate under international law but these nations suffered the most horrific incidents in history due to forcible humanitarian intervention that was illegal as millions perished and millions displaced in these brutal war times.
The US invasion of Iraq was not justified under International law according to Hsiung (1997:18) the invasion of Iraq in 2003 under the war against terror by the Bush administration, international law was totally against such acts as it undermined the state sovereignty and the right to self determination. To make situation worse the USA declared war on Iraq soil without the blessing of the United Nations as the international regime that spearhead and control that states abidance to international law. Or could this illegal invasion be linked to US interests of controlling the oil supply of the world under the notion of war against terror. Now Iraq is a war torn country that is finding it hard to stabilise with its economic apparatus now being controlled by the US companies. Such acts have demonstrated that powerful states are above the international law statutes that govern the conduct of states. International law is more of a rule oriented than an outcome oriented system as United Nations itself does not have authority and power designed to enforce international law.
Since international law governs the signing of treaties between nations the powerful nations have made sure that all treaties signed with them are at their own benefit to the expense of the weaker nations and they have often violated these treaties without facing prosecution. The US chose not to become part of the Convention of the law of seas (CLO111) of 1982 according to Hsiung (1997:15) because it undermined its private enterprise by requiring US private companies that mine seabeds to pay royalties to help Third world countries that countries could not afford such mining. The holding out increased Washington’s bargaining power so that other nations would renegotiate the terms of the treaty to accommodate the US interests such was done in 1994 the CLO111 was amended to accommodate the US interests. As international law advocates for equality among states its failure to govern the conduct of powerful nations have led to third world countries being treated unfairly to economic prospects and developmental prospects that has led to them being alienated in the international community.
The US as a dominant nation has passed unilateral sanctions on weak nations that failures to comply with its foreign policy. This has resulted in many states being controlled their internal affairs by the US government which to some extent is now the world government as it controls most of the international affairs. International regimes that oversee the relationship of the interdependence actors between landlocked and transit countries according to Hsiung (1997;147) have not benefited that poor nations as super powerful nations controls these institutions for their own interests the WTO,IMF and the World Bank have been used by powerful nations to force nations to give up their economic sovereignty. The US in 1992 according to Hsiung (1997:146) passed the Cuban Democracy Act in the bid to put Castroite Cuba to demonstrate, Washington began to interfere in the trade of other countries with Cuba, even trying to dictate trading practices to them.
International law unable to protect weak nations from belligerent acts by a powerful nations results in the weak nations being not sovereign entities in the international arena. Hsiung (1997:146) elaborates that US further passed the Helms Burton Act in 1996 which gave them powers to approach the UN Security Council in an effort to join America’s embargo against Cuba. At the present moment the unilateral sanctions being given to Zimbabwe by the US through the Zimbabwe Democracy and Economic Recovery Act, 2001 (ZIDERA). Through this enactment Zimbabwe’s access to finance and credit facilities was effectively incinerated, is this not violation of self determination that is enshrined in the international law statutes. Imposition of sanctions should be left in the hands of international institutions such as the UN not another actor within the international community. Self determination has become external determination by the imposition of these unilateral sanctions to states that fails to democratize; territorial integrity has eroded by such actions.
The breach of human rights by the powerful nations in the international community has remained tacit. The US has violated international law on human rights and its prosecution has not come into picture as it is regarded as international government that can take unilateral actions that can not the opposed. According to Panst (2007:11) pictures of outrages abuse of detainees at Abu-Graid prison in Iraq in May 2004 demonstrated some of the worst horrific human rights abuse by the US, the prisons were stripped naked with hood placed in their heads and threatened with dogs. The Geneva Convention of international Human rights as well as the UN Charter on Human rights not only prohibits torture but intimidation during torture. The powerful states are able to violate international rights but if weak nations try international law will tumble down on them. The proposal to surrender the perpetrators of the September 11 to the international tribunal according to Byres and Noltle (2003:85) was along to lines of the Yugoslav and Rwanda tribunal was rejected by the USA which argued that it was under its territorial jurisdiction and tried them under their domestic laws. This clearly shows that powerful nations can defy the United Nations orders as well of the ICC without prosecution. Questions can be asked why the US never wanted to sign the ICC statute in December 2000 which makes surrender them surrender its nationals to the International Criminal Court. It is because they want to get away with human rights violations that it commits in the world in their military muscle wars they impose on weaker states. International law has not worked to protect citizens of the world from the superpowers actions that violates human rights in their quest to achieve national interest.
The United States have used the United Nations Security Council and another various institutions to fortify its foreign policies according to Condoleezza Rice in Byers and Nolte (2003;81) “United Sates interests are served by having strong alliances and can be promoted within the UN and other multilateral institutions organizations as well through well crafted international agreements”. The supremacy of the US has demonstrated that it can influence any actions that are not within the international law statutes to achieve its interests. Byers and Nolte (2003:157) further elaborates that the USA made use of the United Security Council which have provoked serious charges that it serves as a tool of US foreign policy rather as truly international organ.
Within that dispute Rourke (2005:279) argued that the non Western view of the international law is that the LDCs (Less Developed Countries) they had little or no role in determining the rules that govern the international system. These countries promote the notion of sovereignty but rejects aspects of international law as they mostly work to their disadvantage. The issue of property rights have been used to the disadvantage of the weaker countries Rourke (2005;278) gives an example of how the Western pharmaceutical firms have prevented the LDCs from access to technology that would enable them to produce HIV/AIDS drugs but whilst they have the claim to respond to the epidemic by producing the drugs themselves which is more important than western emphasis of property right. This conception within the international law has allowed hegemonic powers to interfere directly with the LDCs economic prospects, social goals and political goals making the notion of sovereignty unnecessary to govern the international system.
Compliance of the international law does not exist to powerful states, threat to use economic sanctions, imprisonment, and military intervention only applies to weaker nations while the powerfully built nations can violate international law without being held accountable. The most devastating violation of the international can be noticed when Nicaragua filed a case in 1984 with the ICJ charging the US support of the Contra rebels and its mining of the Nicaraguan harbours violated international law, the US argued that the charges were political and therefore the court had no jurisdiction when the ICJ ruled that it had jurisdiction in the case the Reagan administration in 1985 withdrew US consent to the optional clause Rourke (2005;275).This clearly shows that hegemonic powers of the US makes it above the international law.
If the US can have such influence what benefit is this multilateral institutions and the UN in upholding and protecting the aggressive nature of the superpower to attain its own national interests .The refusal of the of the US to ratify many treaties as Byers and Nolte (2003:90) propounds which are regarded as the cornerstone of the development of international law in particular the Comprehensive Test Treaty Ban, Treaty of Kyoto Protocol, the ICC Statute, Landmines Convention, the Convention on Biological Diversity and the Amended Convention of the Sea has demonstrated that the superpower can control the development of international Law and either opt out in the construction of international law. The significance of international law lacks without the hegemonic powers enforcing it to some extent but the weaker countries suffers from the bad practices of international law by the powerful nations.
The use of the US courts as international courts that enforces the international laws has resulted in weaker nations having no voice in the international community Byers and Nolte (2003:162) elaborates that United States is using it’s legislative and executive branches for the enforcement of law against other states hence has resulted in the Us courts to become important fora for suits of an international nature. If the US courts are becoming international courts then what is the significance of the international law. This has resulted in the international law to loss credibility, weaker states are now be controlled by the US judicial system instead of the ICJ (International Court of Justice) jurisdiction. Lack of enforcement is the most impediment of the effectiveness of international law countries are reluctant to follow the decisions of international counts and the UN Secretariat which is the ICJ executive branch does not have authority to influence the ICJ rulings Rourke (2005;276). This lack of enforcement has led to dominant powers to violate ICJ rulings that go against their national interests without being prosecuted.
Lastly the US as the hegemonic power has used certification mechanisms to control the other states. Byers and Nolte (2003:161) elaborates that certification mechanisms by the US has become a common tool for the US to define rules for other states and monitor observance in areas of arms control, environment protection, human rights , narcotise and terrorism. This has resulted in the US to create laws to monitor and its observance of other states whilst it remains unbound and unmonitored. Byers and Nolte (2003:161) furthermore elaborates that the US is particularly reluctant to subscribe to new international human rights obligations and accept international supervision but it is proactive when it comes to domestic tools for enforcement of human rights abroad. These powerful nations do often what they like in the international arena that sometimes results in the weaker nations often become targets of such actions that erodes their states integrity and determination.
In conclusion International law has been faced with a lot of challenges as most of the powerful states infringe international law and do not face legal prosecution from the USA military personnel that violated the human rights in Iraq, Vietnam, Afghanistan and Kuwait that are supposed to tried on the ICC for war crimes but remains untried because of their citizenship to the world dominant nations. The weak states have been the only actors in the international community that face prosecution and forcible intervention in case that falls under their jurisdiction, state sovereignty has been eroded the doctrine of state self determination has been violated by influential nations. However despite the many failures and restrictions of international law, material interdependence, especially among the states of equivalent power, may foster the growth of positive legal principles.
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Panst J 2007 Beyond the law The Bush Administration’s unlawful Response in the “war” on Terror Cambridge University Press