Why
do states comply with international law?
Barrister
Harun ur Rashid
It
has been a debatable proposition as to why states obey international
law since international law, unlike domestic law, lacks a judicial authority
to enforce it. The sovereignty of state appears to be the stumbling
block for creating a global authority to enforce international law.
The
International Court of Justice (ICJ), based at The Hague (Netherlands),
can only hear a dispute, if the states involved agree to its jurisdiction.
In the recent case of Israel's disputed construction of wall on the
Palestinian West Bank, Israel did not submit to its jurisdiction and
stayed away from the proceedings of the court. At the request of the
UN General Assembly, on 9th July, the ICJ delivered its Advisory Opinion
(not a judgment) declaring the illegality of the construction of wall,
but the Opinion is not binding on Israel.
Another
roundabout way of enforcement of international law is to request the
Security Council of the UN to call upon a state to obey international
law. However, since five permanent members (namely China, France, Russia,
UK, and USA,) of the 15-member Security Council have the right to veto
or block any decision of the Council, it is hardly a suitable machinery
to invoke enforcing international law. After all, the Security Council
is a political institution, not a judicial body, and that is why its
decisions are guided primarily by political considerations, and not
by rule of law.
The
above two instances show that generally speaking, international law
can only "bark" but not " bite" a sovereign state.
Why
do states obey or comply with international law?
It is observed that almost all states (at present 192) mostly comply
with international law. Ships, airplanes, postal and other services
continue to do their regular schedules smoothly among the states because
of the compliance of international law. For instance, a letter posted
in Dhaka with valid Bangladesh's stamps reaches to an addressee in London
without any charge and vice-versa. This occurs because of the rules
of the Universal Postal Union.
Various
Theories
There are various theories as to why states comply with international
law. Professor Franck believes that the answer lies in the concept of
legitimacy. To Professor Frank legitimacy means that quality of law
must derive from a perception, to those to whom it is addressed, that
law has come into being in accordance with right process. Right process
includes not only the notion of valid sources but also encompasses socio-anthropological
insights into the values of a given society, local regional or global.
He
argues that legitimacy will depend on four specific properties: ( a)
transparency, (b) approval of an established valid authority, (c) consistency
in application and ( d) adherence. In other words, Professor Franck
develops his argument that since there exist four objective criteria
that may assist in ascertaining the core elements of right process,
bringing law with a high degree of legitimacy. Once legitimacy exists,
states obey international law.
Sir
Austin advocated the imperative theory of law as the motive behind the
observance of international law. What he meant was that the usefulness
of compliance of international law would motivate states to obey them.
All states wish to live in peace and prosperity and therefore orderly
and peaceful conduct of international relations among states depends
on some kind of accepted norms and rules of behavior from states. Another
jurist D.J. Harris explains that necessity of peace is felt so strongly
by states that they observe rules of law in inter-state relations. A
few legal writers link political and social system within the states
with the compliance of international law. They argue that if a government
is democratic, transparent and accountable to people, the decision-makers
will invariably follow rule of law including international law in respect
with other states. Law is dynamic and therefore it evolves in the way
that respects rule of law because justice must prevail. Plato and Aristotle
defined " Justice is the mother of all virtues and consists in
providing to every one its due without asking."
The
bottom line of all the above theories is that states obey international
law because of (a) necessity of peaceful relations and (b) pressure
within the international community. All states wish to have the reputation
of being credible and trustworthy. They like to be respected in the
comity of nations. Breaches of international will tarnish an image of
a state within the international community.
For instance, Sudan has been in gross breach of international humanitarian
laws to its own people in its province, Darfur, from where millions
of non Arab Africans have fled and taken refuge into neighbouring state,
Chad, because of the massacre perpetrated by Arab militia, Janjaweed,
allegedly supported by the Sudanese Government. Now Sudan has agreed
to address the problem because its reputation has been badly affected
and the UN Security Council has adopted a resolution that unless Sudan
resolves the issues in accordance with humanitarian laws, it may impose
sanctions.
Is
the basis of international law uniform?
The foundation of law may differ from state to state because law is
an expression of social order and community values. What one can do
in Italy cannot do the same in Bangladesh because it may constitute
an offence in Bangladesh (For instance, a Muslim may drink alcohol publicly
in Rome but not in Dhaka, or a tribal person in tribal areas in Pakistan
can carry a gun without a license but not in settled areas in Pakistan).
Each country looks at law from its own culture and customs.
A
large-part of international law is Euro-centric and is based on Christian
values. International law was founded in the West and its father is
the Dutch jurist, known by his Latin name, Grotius ( his Dutch name
is Hugo van Groot) who was born late in the 16th century (1583-1645).
He legal writings were the fullest, systematic and scholarly exposition
of international law.
After
the 60s, most of the developing countries in Asia and Africa became
independent states and they have confronted with the body of rules of
international law made by the Western nations. Many of them are not
comfortable with the inherited international law because they do not
meet their needs and values. They want to change some of the traditional
rules of international law through the UN International Law Commission.
The developing countries argue that the weakness of international law
lies in the fact that they do not often reflect the values of the existing
international community.
For
instance, the existing refugee law does not meet the needs of the 21st
century. The UN Refugee Convention of 1951 is completely outdated and
was adopted to meet the needs of the 50s. It ought to be updated to
include situations from where people take refuge in other countries
because of armed conflicts within a state, nuclear accidents ( Chernobyl
nuclear accident in 1984) and natural disasters.
Wilfred
Jenks is of the view that " international law is not a set of rigid
laws inherited from the past and allowing no scope for development but
a body of living principles in the light of which new problems can be
resolved as international relations develop".
Conclusion
Often big powers obey international law for its convenience, not for
conviction. Big powers should respect international law in all circumstances.
They should not pick and choose international law when it suits them.
They will use international law if it suits their interests but they
would drop it, if it stands in its way. For instance, the US has invaded
Iraq, without UN approval. That has meant that the US has ditched international
law, enshrined in the UN Charter, for its political agenda. Such unilateral
action by the lone superpower endangers the credibility of international
law.
International
law will command respect and compliance if it is adhered to by all states-big
and small, powerful and weak. International law must meet the needs
of the day. It must evolve taking into account of new realities in the
inter-connected world. The voices of developing world must be heard
in the codification of international law. Respect for international
law will only bring peace, security and harmony in the world. There
is no alternative to it.
Barrister
Harun ur Rashid, former Bangladesh ambassador to the UN, Geneva.
