CASE STUDY International Law and Courts

As globalization has quickened and states have more and more interaction with one another, there has been a movement to develop international norms of behavior that countries could or should be expected to adhere to. The concept of international law is not new; maritime law, which has to do with conflicts on the seas, has existed in some form for several centuries. Similarly, rules and laws regarding warfare developed over several centuries, eventually leading to the creation of the Geneva Convention. However, it is exceedingly difficult to design laws to which most or all countries can agree to, especially if there is no authority to oversee and enforce them. Additionally, most countries do not want an international authority with the ability to enforce international law because that would require them to give up an element of their own sovereignty, or a states ability to control its own territory.

Following World War II, further efforts have been made to establish at least the outlines of international law, especially in the form of treaties under the auspices of the United Nations. For example, the United Nations developed the Universal Declaration of Human Rights (UDHR) in 1948 with the goal of creating a universal set of human rights that should apply globally. Enforcement of these human rights is difficult, though, because some countries culturally disagree with the stated rights (including equal rights for women) and because the treaty that established the United Nations itself recognizes state sovereignty and pledges that the United Nations will not involve itself in the actions of states within their own territories.

Part of the UN Charter did establish a courtthe International Court of Justice (ICJ). The ICJ does not enforce international law or prosecute violations of it. Instead, it acts as a court of arbitration in which member states to the United Nations can choose to have disputes settled, and it can provide interpretations to UN bodies of applicable treaties. The ICJ is comprised of fifteen judges elected by the UN General Assembly and UN Security Council, who each serve nine-year terms. Because the ICJ only mediates disputes, an effort was made in the 1990s to establish an international tribunal that could try international criminal cases; the result was the Rome Statute, which established the International Criminal Court (ICC) in 2002 (the treaty was signed in 1998). The ICC can prosecute crimes related to genocide, crimes against humanity, and war crimes. However, one significant drawback is that not all states have agreed to the Rome Statute and thus refuse to recognize the ICC, including the United States. This has not stopped the ICC from prosecuting several cases related to genocide and war crimes.

While international law is certainly developing, the two hurdles noted previouslythe ability of a majority of states to agree to particular principles and the unwillingness of states to give up their sovereigntyoften preclude more comprehensive treaties and agreements. This does not mean the situation is impossible, however. The development of the European Union has meant that EU states have given up individual power in many economic areas including monetary policy. Further, the European Union itself has established a judicial system, the Court of Justice of the European Union. Thus, it may be possible for regional systems of law and regional courts to develop as a precursor to a larger international system.

Critical Thinking Questions

a) Given the different systems of law described in this chapter, do you believe it is possible to develop one system of international law?

b) What kinds of characteristics do you believe an international system of law should have?

c) What are some things that often prevent states from participating in international law and courts?