Why international law matters 10 january 2024

Why international law matters ?

International law and its attendant structures are not ideal. But the world would be worse off if they weren’t there

अंतर्राष्ट्रीय कानून और उससे जुड़ी संरचनाएँ आदर्श नहीं हैं। लेकिन अगर वे नहीं होते तो दुनिया बदतर होती .

Russia and Israel war and international laws

1 These two wars have led many to pronounce the death of international law, especially the rule prohibiting the use of force in international relations — the crown jewel of the United Nations Charter codified in Article 2(4). 

2 Article 2(4) was dead 

But this is not the first time international law has been declared dead. More than 50 years ago too, Thomas Franck argued that Article 2(4) was dead 

because it worked on the flawed assumption that the permanent members of the UN Security Council would continue to cooperate after World War-2.

 international law suffers from several structural deficiencies

1  In fact, critical scholars would trace the origin of the ongoing and past military conflicts in the genealogy of international law laced with imperial and colonial character. 

2 international law lacks a global police force to enforce it successfully, notwithstanding the growth of several international courts and tribunals. Yet, international law matters.

Moving beyond compliance

1 Critics argue that a poor compliance record with international law is sufficient to show that it is inconsequential / not in line . 

2 Indeed, a central preoccupation of several international lawyers has been on compliance or rule observance of international law to determine its efficacy. 

3 national courts often use international law to interpret domestic law to enlarge its content, even if that international law has not been implemented through domestic legislation. 

4 shifting the benchmarks away from a general theory of compliance

Thus, assessing the usefulness of international law requires shifting the benchmarks away from a general theory of compliance. 

And if compliance alone was the matrix to determine the efficacy of law, a lot of domestic law would also have to be declared useless, given the innumerable violations in municipal legal systems.

when a country engages with international law

 it triggers a complex process of institutional interactions where by global norms are debated, interpreted, and internalised by that nation’s domestic legal system.

it  leads countries to obey international law is important because there are certain material benefits or policy goals, such as 

• combating climate change
• 
  
•  or fighting terrorism,
• 
  
•  that only international law can help achieve.

Accountability

significance of international law cannot be limited to material outcomes 

1 as the fundamental attribute of any legal system should be its ability to distinguish between sheer public power and legitimate authority

 2 international law matters because, through its argumentative practices, it has the potential to hold those who wield public power accountable for their conduct. 

3 In December, South Africa moved the International Court of Justice (ICJ) alleging that Israel’s conduct in Gaza violates the Convention on the Prevention and Punishment of the Crime of Genocide. 

This is a case in point. This accountability need not always be in the form of punishing the decision-makers for non-compliance. 

However, accountability stems from several actors such as states and private individuals invoking international law to ask questions of those in power and make a case if their actions are illegitimate. 

While this system of holding those in power accountable is not ideal, it does push countries and actors to explain their conduct.

 For example, the Israel Defence Forces have tried to explain how their military offensive is consistent with international law. While one may disagree with their explanations,

 the fact that Israel has attempted to legitimise its actions using the phraseology of international law in the eyes of various constituents who are paying attention is critical.

International law and its attendant structures are not ideal

 1 But the world would be worse off if they weren’t there. Israel would not have to explain its conduct to the larger world, and there would be no ICJ to hear a complaint against it.

 2  even if there is no universal compliance with international law, especially international humanitarian law, there is a universal aspiration towards compliance. 

International law must be an instrument that holds the powerful accountable in international relations

 International law should be marshalled each time men who are drunk with power wish to act as they please. 

The world needs more, not less, of fair international law to constrain expansionist, imperial, and illiberal propensities.

Source the hindu