between sovereign states and such other entities as have been grantedinternational personality (status acknowledged by the internationalcommunity).
The rules of international law are of a normativecharacter, that is, they prescribe towards conduct, and arepotentially designed for authoritative interpretation by aninternational judicial authority and by being capable of enforcementby the application of external sanctions. The International Court ofJustice is the principal judicial organ of the United Nations, whichsucceeded the Permanent Court of International Justice after WorldWar II. Article 92 of the charter of the United Nations states:The International Court of justice shall be the principaljudicial organ of the United nations. It shall function in accordancewith the annexed Statute, which is based upon the Statute of thePermanent court of International Justice and forms an integral part ofthe present Charter.
The commands of international law must be those that thestates impose upon themselves, as states must give consent to thecommands that they will follow. It is a direct expression of raisond’etat, the interests of the state, and aims to serve the state, aswell as protect the state by giving its rights and duties. This isdone through treaties and other consensual engagements which arelegally binding. The case-law of the ICJ is an important aspect of the UN’scontribution to the development of international law.
It’s judgementsand advisory opinions permeates into the international legal communitynot only through its decisions as such but through the widerimplications of its methodology and reasoning. The successful resolution of the border dispute betweenBurkina Faso and Mali in the 1986 Frontier Dispute case illustratesthe utility of judicial decision as a means of settlement interritorial disputes. The case was submitted to a Chamber of the ICJpursuant to a special agreement concluded by the parties in 1983. InDecember 1985, while written submissions were being prepared,hostilities broke out in the disputed area. A cease-fire was agreed,and the Chamber directed the continued observance of the cease-fire,the withdrawal of troops within twenty days, and the avoidance ofactions tending to aggravate the dispute or prejudice its eventualresolution. Both Presidents publicly welcomed the judgement andindicated their intention to comply with it.
In the Fisheries Jurisdiction case (United Kingdom v. Iceland,1974) the ICJ contributed to the firm establishment in law of the ideathat mankind needs to conserve the living resources of the sea andmust respect these resources. The Court observed:It is one of the advances in maritime international law,resulting from the intensification of fishing, that the formerlaissez-faire treatment of the living resources of the sea in the highseas has been replaced by a recognition of a duty to have due regardof the rights of other States and the needs of conservation for thebenefit of all. Consequently, both parties have the obligation to keepinder review the fishery resources in the disputed waters and toexamine together, in the light of scientific and other availableinformation, the measures required for the conservation anddevelopment, and equitable exploitation, of these resources, takinginto account any international agreement in force between them, suchas the North-East Atlantic Fisheries Convention of 24 January 1959, aswell as such other agreements as may be reached in the matter in thecourse of further negotiation.
The Court also held that the concept of preferential rights infisheries is not static. This is not to say that the preferentialrights of a coastal State in a special situation are a static concept,in the sense that the degree of the coastal State’s preference is tobe considered as for ever at some given moment. On the contrary, thepreferential rights are a function of the exceptional dependence ofsuch a coastal State on the fisheries in adjacent waters and may,therefore, vary as the extent of that dependence changes. The Court’sjudgement on this case contributes to the development of the law ofthe sea by recognizing the concept of the preferential rights of acoastal state in the fisheries of the adjacent waters, particularly ifthat state is in a special situation with its population dependent onthose fisheries.
Moreover, the Court proceeds further to recognisethat the law pertaining to fisheries must accept the primacy of therequirement of conservation based on scientific data. The exercise ofpreferential rights of the coastal state, as well as the hisoricrights of other states dependent on the same fishing grounds, have tobe subject to the overriding consideration of proper conservation ofthe fishery resources for the benefit of all concerned. Some cases in which sanctions are threatened, however, see noactual implementation. The United States, for example, did not imposemeasures on those Latin American states that nationalized privatelyowned American property, despite legislation that authorizes thePresident to discontinue aid in the absence of adequate compensation.
Enforcement measures are not the sole means of UN sanction. Skeptics of the coercive theory of international law note thatforceful sanctions through the United Nations are limited tosituations involving threats to the peace, breaches of peace, and actsof aggressiion. In all other instances of noncompliance ofinternational law, the charter’s own general provisions outlawing thethreat or use of force actually prevent forceful sanction. Those sameskeptics regard this as an appropriate paradox in a decentralizedstate system of international politics. Nonetheless, other means ofcollective sanction through the UN involve diplomatic intervention andeconomic sanctions.
In 1967 the Security Council decided to isolate SouthernRhodesia (now Zimbabwe) for its policy of racial separation followingits unilateral declaration of independence from Britain. As in othercases of economic sanctions, effectiveness in the Rhodesian situationwas limited by the problems of achieving universal participation, andthe resistance of national elites to external coercion. With respectto universal participation, even states usually sympathetic toBritain’s policy demonstrated weak compliance. The decentralization of sanctions remains one of the majorweaknesses of international law. Although international bodiessometimes make decisions in the implementation of sanctions, memberstates must implement them. The states are the importers and exportersin the international system.
They command industrial economies and thepassage of goods across national boundaries. Furthermore, the UN is wholly dependent on its members onoperating funds, so no matter what decisional authority its membersgive it, its ability to take action not only depends on its decisionbut also on means. Without the support, the wealth and the materialassistance of national governments, the UN is incapable of effectivesanctions. The resistance of governments to a financially independentUN arises principally on their insistence on maintaining control oversanctioning processes in international politics. Despite sweeping language regarding threats to peace,breaches of the peace, and acts of aggression, the role of the UnitedNationsin the enforcement of international law is quite limited. Indeed the purpose of the UN is not to enforce international law, butto preserve, restore and ensure political peace and security.
The roleof the Security Council is to enforce that part of international lawthat is either created or encompassed by the Charter of the UnitedNations. When aggression occurs, the members of the Council may decidepolitically – but are not obliged legally – to undertake collectiveaction that will have sanctioning result. In instances of threats toor breaches of the peace short of war, they may decide politically totake anticipatory action short of force. Moreover, it is for themembers of the Security Council to determine when a threat to peace, abreach of peace, or an act of aggression has occured. Even thidetermination is made on political rather than legal criteria.
TheSecurity Council may have a legal basis for acting, but self-interstdetermines how each of it members votes, irrespective of how close toaggression the incident at issue may be. Hence by virtue of both itsconstitutional limitations and the exercise of sovereign prerogativesby its members, the security council’s role as a sanctioning device ininternational law is sharply restricted. As the subject matter of the law becomes more politicized,states are less willing to enter into formal regulation, or do so onlywith loopholes for escape from apparent constraints. In this area,called the law of community, governments are generally less willingto sacrifice their soverein liberties.
In a revolutionaryinternational system where change is rapid and direction unclear, theintegrity of the law of community is weak, and compliance of its oftenflaccid norms is correspondingly uncertain. The law of the political framework resides above these othertwo levels and consists of the legal norms governing the ultimatepower relations of states. This is the most politicized level ofinternational relations; hence pertinent law is extremely primitive. Those legal norms that do exist suffer from all the politicalmachinations of the states who made them.
States have taken care tosee that their behaviour is only minimally constrained; the few legalnorms they have created always provide avenues of escape such as thebig-power veto in the UN Security Council. Despite the many failures and restrictions of internationallaw, material interdpendence, especially among the states ofequivalent power, may foster the growth of positive legal principles. In addition, as friendships and emnities change,, some bilateral lawmay cease to be observed among new emnities, but new law may ariseamong new friends who have newfound mutual interests. In the meantime,some multicultural law may have been developed. Finally, researchsuggests that the social effects of industrialization are universaland that they result in intersocial tolerances that did not existduring periods of disparate economic capability. On social, political,ane economic grounds, therefore, international law is intrinsic to thetransformation and modernization of the international system, eventhough the law of the political context has remained so far.
BibliographyInternational law is the body of legal rules that applybetween sovereign states and such other entities as have been grantedinternational personality (status acknowledged by the internationalcommunity). The rules of international law are of a normativecharacter, that is, they prescribe towards conduct, and arepotentially designed for authoritative interpretation by aninternational judicial authority and by being capable of enforcementby the application of external sanctions. The International Court ofJustice is the principal judicial organ of the United Nations, whichsucceeded the Permanent Court of International Justice after WorldWar II. Article 92 of the charter of the United Nations states:The International Court of justice shall be the principaljudicial organ of the United nations. It shall function in accordancewith the annexed Statute, which is based upon the Statute of thePermanent court of International Justice and forms an integral part ofthe present Charter.
The commands of international law must be those that thestates impose upon themselves, as states must give consent to thecommands that they will follow. It is a direct expression of raisond’etat, the interests of the state, and aims to serve the state, aswell as protect the state by giving its rights and duties. This isdone through treaties and other consensual engagements which arelegally binding. The case-law of the ICJ is an important aspect of the UN’scontribution to the development of international law. It’s judgementsand advisory opinions permeates into the international legal communitynot only through its decisions as such but through the widerimplications of its methodology and reasoning. The successful resolution of the border dispute betweenBurkina Faso and Mali in the 1986 Frontier Dispute case illustratesthe utility of judicial decision as a means of settlement interritorial disputes.
The case was submitted to a Chamber of the ICJpursuant to a special agreement concluded by the parties in 1983. InDecember 1985, while written submissions were being prepared,hostilities broke out in the disputed area. A cease-fire was agreed,and the Chamber directed the continued observance of the cease-fire,the withdrawal of troops within twenty days, and the avoidance ofactions tending to aggravate the dispute or prejudice its eventualresolution. Both Presidents publicly welcomed the judgement andindicated their intention to comply with it. In the Fisheries Jurisdiction case (United Kingdom v.
Iceland,1974) the ICJ contributed to the firm establishment in law of the ideathat mankind needs to conserve the living resources of the sea andmust respect these resources. The Court observed:It is one of the advances in maritime international law,resulting from the intensification of fishing, that the formerlaissez-faire treatment of the living resources of the sea in the highseas has been replaced by a recognition of a duty to have due regardof the rights of other States and the needs of conservation for thebenefit of all. Consequently, both parties have the obligation to keepinder review the fishery resources in the disputed waters and toexamine together, in the light of scientific and other availableinformation, the measures required for the conservation anddevelopment, and equitable exploitation, of these resources, takinginto account any international agreement in force between them, suchas the North-East Atlantic Fisheries Convention of 24 January 1959, aswell as such other agreements as may be reached in the matter in thecourse of further negotiation. The Court also held that the concept of preferential rights infisheries is not static.
This is not to say that the preferentialrights of a coastal State in a special situation are a static concept,in the sense that the degree of the coastal State’s preference is tobe considered as for ever at some given moment. On the contrary, thepreferential rights are a function of the exceptional dependence ofsuch a coastal State on the fisheries in adjacent waters and may,therefore, vary as the extent of that dependence changes. The Court’sjudgement on this case contributes to the development of the law ofthe sea by recognizing the concept of the preferential rights of acoastal state in the fisheries of the adjacent waters, particularly ifthat state is in a special situation with its population dependent onthose fisheries. Moreover, the Court proceeds further to recognisethat the law pertaining to fisheries must accept the primacy of therequirement of conservation based on scientific data. The exercise ofpreferential rights of the coastal state, as well as the hisoricrights of other states dependent on the same fishing grounds, have tobe subject to the overriding consideration of proper conservation ofthe fishery resources for the benefit of all concerned. Some cases in which sanctions are threatened, however, see noactual implementation.
The United States, for example, did not imposemeasures on those Latin American states that nationalized privatelyowned American property, despite legislation that authorizes thePresident to discontinue aid in the absence of adequate compensation. Enforcement measures are not the sole means of UN sanction. Skeptics of the coercive theory of international law note thatforceful sanctions through the United Nations are limited tosituations involving threats to the peace, breaches of peace, and actsof aggressiion. In all other instances of noncompliance ofinternational law, the charter’s own general provisions outlawing thethreat or use of force actually prevent forceful sanction.
Those sameskeptics regard this as an appropriate paradox in a decentralizedstate system of international politics. Nonetheless, other means ofcollective sanction through the UN involve diplomatic intervention andeconomic sanctions. In 1967 the Security Council decided to isolate SouthernRhodesia (now Zimbabwe) for its policy of racial separation followingits unilateral declaration of independence from Britain. As in othercases of economic sanctions, effectiveness in the Rhodesian situationwas limited by the problems of achieving universal participation, andthe resistance of national elites to external coercion. With respectto universal participation, even states usually sympathetic toBritain’s policy demonstrated weak compliance.
The decentralization of sanctions remains one of the majorweaknesses of international law. Although international bodiessometimes make decisions in the implementation of sanctions, memberstates must implement them. The states are the importers and exportersin the international system. They command industrial economies and thepassage of goods across national boundaries. Furthermore, the UN is wholly dependent on its members onoperating funds, so no matter what decisional authority its membersgive it, its ability to take action not only depends on its decisionbut also on means.
Without the support, the wealth and the materialassistance of national governments, the UN is incapable of effectivesanctions. The resistance of governments to a financially independent %0
