International Law the Objective of This Work Research Paper

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International Law

The objective of this work in writing is to examine what it means to 'keep the peace' in the present age and the world facing challenges and threats of unprecedented scope, scale and complexity. The question addressed in this research is that which asks where in such endeavors are the existence of international institutions and legal doctrines likely to suffice and where are international institutions and legal doctrines likely to fall short?

The Role of International Law in the Modern World

In the National Strategy for Homeland Security it is stated that "virtually every community in America is connected to the global transportation network by the seaports, airports, highways pipelines, railroads, and waterways that move people and goods into, within, and out of the Nation. We must therefore promote the efficient and reliable flow of people, goods and services across borders, while preventing terrorists from using transportation conveyances or systems to deliver implements of destruction." ( ) It is certain that national laws are in place to address the protection of American citizens however, International laws are at question in this work in writing. The work of Norton (nd) states that when one enquires as to the role of international law in a peaceful world order, one must "consider the role international law now plays; what role it can be expected to play; and how far, and in what ways it may help to bring about a more peaceful 'World Order'. " Today's international law is comprised by a "…400-year-old system of customary law regarded as binding, and a great mass of international agreements." (Norton, nd) International law however, can be traced by thousands of years and specifically "around 2100 BC" (Shaw, 2003, p.14) In addition ancient Israel is stated to have a role in the formation of international law. (Shaw, 2003, p.14) In fact, the Prophet Isaiah is stated to have said that sworn agreements, even when made with the enemy were binding and that the keys to the existence of man was not those of power but instead were those of peace and social justice. (Shaw, 2003, paraphrased) There are many international organizations dedicated and appointed to keep peace internationally however, laws alone "without some type of government, cannot keep the peace against the strong and determined lawbreaker." (Norton, nd)

II. International Law is Both Procedural and Substantive

This work has stated the purpose of addressing the validity or legitimacy of International Law in the uncertain future. And it is stated that legitimacy "among other things refers to the capacity of legal institutions and norms to engender respect and confidence in those who are subject to them.." (Customer Resource, ) In addition legitimacy is stated to have "procedural as well as substantive components." (Customer Resource, ) It may occur in the law that a specific action or decision of law while being "procedurally legitimate -- that is, formulated in accordance with agree-upon rules, or be substantively legitimate -- that is, consistent with some theory of justice or morality or both." (Customer Resource, ) Two things are stated to explain the contrariness of that is contained in international law and the first being that there has been on strength on the part of international institutions until recently resulting in them exerting no influence whatsoever. (Customer Resource,, paraphrased) In fact, international institutions have been examined in terms of their causal nature rather than on the consideration of legitimacy as they had none! However, with the increase in need for international authority from the institutions' legitimacy has become a primary consideration in terms of authority held by these institutions. Relevance is stated to relate to the "efficacy of international law and institutions." (Bodansky, 1999 in Shaw, 2003) The foundation of international law (or the law of the nations) as it is understood today lie firmly in the development of Western culture and political organization." (Shaw, 2003)

III. Changing World

According to the work of Hathaway (2005) entitled "Between Power and Principle: An Integrated Theory of International Law" states that it is necessary to "evaluate critically the role that international law can and does play in shaping state behavior. Legal and political science scholars have begun to meet this challenge,[footnoteRef:1] yet we still remain remarkably ill equipped to predict or explain the real-world impact of the over 50,000 international treaties now in force, covering nearly every aspect of international relations and nearly every facet of state authority.[footnoteRef:2] Hathaway reports that customary international law "does not require the same kind of affirmative act on the part of a state to subject it to the law, but it is generally accepted that states can -- with some important exceptions -- avoid application of customary international law simply by persistently objecting to it." (Hathaway, 2005) The traditional principle that holds that international "essentially depends on the consent of states" is known as the "persister objector rule." (Restatement (Third) of the Foreign Relations Law of the United States § 102, Reporters' Note 2 (1987)" in: Hathaway, 2005) Therefore, one can understand that laws that are binding upon States are those that arise from the states' "own free will as expressed in conventions or by usages generally accepted as expressing principles of law." ( The S.S. Lotus (France v Turkey), 1927 PCIJ (ser A) No 10, 18._ in: Hathaway, 2005) [1: ] [2: The UN Treaty Series is comprised by more than 50,000 treaties. United Nations Treaty Series Overview (2003) Retrieved from: http://untreaty.un.org/English/overview.asp ]

IV. Interest-Based and Norm-Based Models

There are reported to be two models of the role of international law: (1) interest-based; and (2) norm-based. The interest-based model is one in which the states are viewed as being compliant "only when there is some clear objective reward for doing so." (Hathaway, 2005) The norm-based model is one in which governments are held as creators and in compliance with treaties "not only because they expect a reward for doing so, but also because of their commitment to the norms or ideas embodied in the treaties." (Hathaway, 2005) It may also be that they are committed to the transnational political actors "that influence them" involved in the process according to Hathaway (2005). According to Hathaway (2005) "the legal norm-based scholarship starts with the assumption that nations obey international law 'almost all of the time'." In fact, legal norm-based scholarships makes the assumption that law is "a given." (Hathaway, 2005) Two variations of normative theory are repor4ted to have expanded: (1) fairness theory; and (2) legal process theory. (Hathaway, 2005) The fairness theory of Thomas Franck is focused on the obligations of a legal nature in which "A fair legal obligation exerts a compliance pull that leads states to comply with it." (Hathaway, 2005) The legal process theory focuses on the "horizontal and vertical interactions among countries." (Hathaway, 2005) The liberal institutionalist theory is stated to address "some of the shortcomings of existing rationalist accounts." (Hathaway, 2005) The liberal institutionalist theory argues that states "pursue the aims preferred by "powerful domestic interest groups enfranchised by representative institutions and practices." (Hathaway, 2005) Therefore, it can be understood that the behavior of states is the "results of complex interactions between political players at the domestic level, and cannot be explained as simply resulting from power-maximizing behavior or strategic calculation by a unitary actor." (Hathaway, 2005)

V. Analysis

Hathaway (2005) notes that the most and in fact "first defining characteristic of international treaty law is the voluntary nature of the legal obligation it imposes. International law lacks a central government authority that has the power to enforce its commands. The characteristic is the source of the doubt about the legal nature of international law." In addition, it is noted by Hathaway (2005) that there are still "vast domains in which enforcement of international law is nonexistent or, at best, sporadic." There are two factors driving compliance of states to international law and that is legal enforcement and collateral consequences on the Domestic and Transnational levels as shown in the following table labeled Figure 1.

Figure 1

Legal Enforcement

Collateral Consequences

Domestic

Incentives for commitment and compliance arise from expected enforcement of the treaty, where the source of the enforcement is actors inside the state.

Incentives for commitment and compliance are created by anticipated reactions of domestic actors to a government's decision to commit to an international treaty.

Transnational

Incentives for commitment and compliance arise from expected enforcement of the treaty, where the source of the enforcement is actors outside the state.

Incentives for commitment and compliance are created by anticipated reactions of transnational actors to a government's decision to commit to an international treaty.

Source: Hathaway (2005)

It is noted in the work of Hathaway (2005) that existing international laws which are enforceable serves to make provision of opportunities for domestic actors to "use international law to achieve domestic policy objectives that might be otherwise difficult to achieve or maintain" and the result is that "decisions are ultimately made by those wielding political power." (Hathaway, 2005) Ultimately, it is…[continue]

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