Criticism of International Law
Authored By : Anjali Chaudhary
Rational; Rational choice theory; Uniformity; International law; International organizations
The structural framework of Rules and Regulations which is formulated to facilitate smooth functioning of laws between the nation-states is known as International Law or Public International Law. Governing a plethora of nation-states is not an easy task and therefore, few challenges are faced by the organizations while working towards binding the relations of one state with another. This article explains the challenges which are faced by the organizations as well as suggests solutions for the same.
International Law is also known as Public International law and it comprises all the rules, regulations, norms, and treaties which are legally recognized by the nations which are recognized as legal actors. This concept was developed on the belief that the sovereign nations are important as well as independent participants of International Relations. Needless to state, International Law has been provided with criticism from various fields of work like political scientists or research scholars who consider it as quintessentially unavailing as well as International Law not being a proper law as it lacks structure. The question of whether International Law is Just or Unjust has been faced by the regulatory authorities many times.
Challenges to International Law
There are two major challenges which are faced by International laws that withstand the smooth functioning of the processes. The challenges are explained further.
The first major issue that International Law faces is its rationality. Rationality could be deliberated by three postulates. Firstly, the desires of an entity, based in its beliefs must be ascertained. Secondly, these beliefs are to be unsurpassed, and thirdly, there must be enough aggregate of evidence to prove that the ruling is rational. It is often seen among the nations that the legal framework exists but only some nation-states are a part of it while the others bluntly deny participating and follow the norms. This makes it hard for the authorities to have a system that could pragmatically ensure rationality. It is not possible to adopt a punctilious theoretical approach to decide upon the rationality of legal norms but practicality must be studied and implied. The debate between constructivism and rationality would keep on going until the time the theoretical approach is given preference. To bring this issue to a solution, all the possible alternatives regarding the effective approach should be identified complying with the Rational Choice Perspective.
The second issue is its effectiveness because of the lack of uniformity. Facts and precedents state that the International Law is constructed on the concept of consent of the nations. It could only be followed in uniformity if all the states become a member and adopt the laws and treaties which are formulated for the systematic functioning of the society. The issue arises when a particular state thinks that a specific treaty isn’t favoring them much or its not in their interest, that state has the option to keep out of that treaty and refuse to sign the agreement.
One of the remarkable features of the International law is that it refrains from coercive enforcement. This allows the states to remain sovereign and encourages world peace but it also calls for the issue of consent. The issue of consent of the nations in agreeing to participate causes problems in International cooperation while in some countries, the process of coming to a decision and affirming consent is a laborious one. The lengthiness of the process makes it hard for international organizations to allow smooth functioning. Though, if the concept of consent is removed, it would allow a greater level of overall compliance, but it is not even possible for the issue of consent to be eliminated because if done so, it would breach the foundation of International laws by allowing coercive enforcement. This could lead the states to revolt against the International Organizations and call for War.
Today, we live in an interdependent world and if we observe profoundly, we happen to have shared challenges. The issues of climate change, terrorism, etc are a threat to the entire world and to curb these issues, a collective effort is required from the nation-states which have to work beyond the various challenges that are faced by International law. The critiques will always find a way to criticize but what holds more importance is the corroborative endeavor of the participants as well as non-participants of the International Organizations. Right solutions aren’t the only key to fight with the issues but the acceptance of a little burden by the countries would benefit.
Reference: [i] Malcolm Shaw, International Law < https://www.britannica.com/topic/international-law/Historical-development> accessed Aug-13-2020 [ii] https://www.britannica.com/topic/international-law/Historical-development [iii] Neils Peterson, How Rational is International Law?, The European Journal of International Law, Vol. 20 No. 04, 2010 [iv] Guzman, Andrew, The consent problem in International Law, 2011 <https://escholarship.org/uc/item/04x8x174> accessed Aug-14-2020 [v] https://www.un.org/en/sections/un-charter/un-charter-full-text/ [vi] Guzman, Andrew, The consent problem in International Law, 2011 <https://escholarship.org/uc/item/04x8x174> accessed Aug-14-2020