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To what extent can international law be deemed binding internationally?
Introduction
International law exists and functions as a complex network of legal principles that aim for international peace and order, and promote the acceptance of internationally shared aims. It is generally identified as a ‘benchmark and guideline’, the binding force of which depends on the will and consent of states as to their status. A central principle of international law is that each state is sovereign and equal, although the increasing force of international law has bred the notion that no state can acquire absolute sovereignty. It has been clearly expressed by international tribunals that, should a conflict arise between international and national law, the former trumps but does not invalidate the latter. However, states are able to determine the way in which the required international result is to be achieved. The general view is therefore that international law can be deemed internationally binding to the extent that states observe it, in accordance with the concept of state sovereignty.
International Law and State Consent
State consent plays a core role in determining the extent to which international law can be deemed binding. It is indeed argued that implied or express consent is a central component of international law, and that the latter cannot have independent binding force in the absence of express international consent. This view is rooted in the notion that the binding force of international law relies on the will and consent of any particular state. States will be more likely to consent to international law if it respects state sovereignty, and furthers international interests. Therefore, the internationally binding force of international law could be said to rely on state consent, which in turn can only be achieved if it is perceived to be sufficiently legitimate.
The principle of state consent essentially injects binding force into international law, to the extent that states have consented to it. This indicates that such binding force is absent where state consent has not been given. A core source that governs the formation and implementation of international law is the Statute of the International Court of Justice (ICJ). Article 38 provides a list of the various sources of international law, which includes ‘international conventions…international custom…[and]…general principles of law recognised by civilised nations’. The sources are not structured hierarchically, and the list itself is not recognised as a binding source of international law. This supports the claim that state consent is central to the binding force of international law, because the ICJ’s jurisdiction enables states to choose the international laws that are relevant in any given case.
International courts and tribunals may only exercise jurisdiction when determining questions of international law. States can also refer questions of national law to the ICJ. Such questions of international law pertain to the creation and meaning of an international agreement, or arise when national law contravenes some international obligation. International courts and tribunals consistently state that, when a conflict materialises between international obligations and national law, states are expected to comply with international law. This rule was established in the draft declaration of the International Law Commission on the Rights and Duties of States, Article 13 of which stipulates that:
Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitutions or its laws as an excuse for failure to perform this duty.
This principle was later reiterated in the Vienna Convention on the Law of Treaties 1969, which states in Article 27 that ‘a party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty’. The Article also states that this rule ‘is without prejudice to Article 46’. Article 46 allows a state to submit that its consent to an international treaty is invalid due to a breach of a national law of fundamental importance. The Permanent Court of International Justice in Exchange of Greek and Turkish Populations held that a state that has assumed international obligations must modify its national legislation in order to satisfy such obligations. Various human rights tribunals have also confirmed that international obligations take priority over national law when a conflict arises between the two. For example, the Inter-American Court of Human Rights’ Advisory Opinion on International Responsibility for the Promulgation and enforcement of Laws in Violation of the Convention states that international law obligations ‘may be deemed to be general principles of law and be applied by the Permanent Court of International Justice and the International Court of Justice even in cases involving constitutional provisions’. An international tribunal cannot declare a national law to be invalid, yet it can state that the way in which it is interpreted is inconsistent with international law. This indicates that international law is generally binding in that states are expected to obey binding principles of international law.
International Law and State Compliance
Prominent academics such as Henkin argue that almost all states obey almost all principles of international law in almost all cases. This is however based on the notion that international law must be legitimate, in that such legitimacy promotes compliance and binds states. Others academics, such as Chayes, suggest that state compliance with international law is promoted due to the dynamic created by the international legal regime that they are a party to. Both approaches appear to be based on some form of fairness requirement, in that states will comply with international law if they deem it to be legitimate. Therefore, the binding status of international law depends on the extent to which it is deemed legitimate by states. This directly relates to the concept of state consent, which gives rise to the need to participate and obey international law. It is the very legitimacy of international law that achieves state consent, and hence gives rise to the obligation to obey. For example, principles of international customary law (ICL) are established through consistent, widespread participation in a particular practice, therefore compliance with ICL is ensured because they are the direct product of a common, shared practice. International law is obeyed by states because it exists as a system of legitimate principles and rules that are internalised through national legal frameworks.
International law may be identified as a unique legal framework, because its binding quality essentially relies on state recognition of and consent to such force. Morgenthau for example recognises this, and argues that ‘to deny international law exists as a system of binding legal rules flies in the face of all the evidence’. The development of international law is based on encouraged compliance, because it does not void national law that are in conflict with it, but rather stipulates that international law prevails in such cases. This has achieved convergence, because the overriding status of international law provokes the voluntary reform and development of national law. State consent has a central role in this respect, because it is based on the principle that states that consent to international law will naturally cooperate and comply with it. States that have willingly assumed obligations arising from international law means that its binding status is reliant on state consent. States can also exercise considerable discretion in deciding how an international law will be incorporated into national law. This has given rise to a co-dependency culture, which Nussbaum describes as thus: ‘the law of nations is a law among nations’. An example of this may be found in the jurisdiction of the International Criminal Court (ICC), which seeks to maintain international justice. The jurisdiction of the ICC applies to both individuals and states that are found to be responsible for international crimes. The ICC is authorised to intervene in situations in which states are unable or unwilling to respond to or investigate. Certain limits on the ICC’s jurisdiction are geared towards maximising state cooperation. State sovereignty is preserved by the fact that the ICC can only respond to certain, particularly serious, crimes, such as genocide and crimes against humanity. The ICC’s jurisdiction is not universal – it operates in a complementary manner to the criminal institutions of states. The fact that states have jurisdiction over international crimes means that state compliance with the ICC is promoted because the latter’s jurisdiction is rooted in state consent, and hence legitimate. The ICC respects and preserves the jurisdiction and competence of states, hence maximising its legitimacy, and promoting state compliance.
Conclusion
At its very core, international law is constituted of a variety of norms that the international community itself has developed. It is this foundation of international law that enables it to boast binding authority. In this respect, the binding force of international law arises from its legitimacy, which gives rise to state consent. It is indeed generally accepted that international law ‘exerts a pull toward compliance…because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process’. States participate in international law, and thus internalise them, which promotes compliance because an inextricable link between national and international law is created. Therefore, international law can be deemed binding to the extent that it is perceived legitimate in the international community, through state consent.
Bibliography
Books & Journals
Arsanjani, MH., ‘The Rome Statute of the International Criminal Court’ [1999] 93 American Journal of International Law 1
Aust, A., Handbook of International Law (2nd edn, Cambridge University Press 2010)
Cassese, A., International Criminal Law (Oxford University Press 2008)
Chayes, A & AH Chayes, The new sovereignty: Compliance with treaties in international regulatory regimes (Harvard University Press 1995)
Dixon, M, R McCorquodale & S Williams, Cases and Materials on International Law (Oxford University Press 2011)
Evans, M., International Law (4th edn, Oxford University Press 2014)
Fisher, R., Improving compliance with international law (Vol. 14, University of Virginia Press 1981)
Franck, TM., The Power of Legitimacy Among Nations (Oxford University Press 1990)
Franck, TM., Fairness in International Law and Institutions (Oxford University Press 1998)
Goodman, R & D Jinks, ‘Incomplete internalization and compliance with human rights law’ [2008] 19 European Journal of International Law 4
Guzman, AT., ‘A compliance-based theory of international law’ [2002] 90 Cal. L. Rev. 1823
Henkin, L., How nations behave: Law and foreign policy (Columbia University Press 1979)
Hollis, DB., ‘Why State Consent Still Matters-Non-State Actors, Treaties, and the Changing Sources of International Law’ [2005] 23 Berkeley J. Int'l L 137
Jessberger, F & J Geneuss, ‘The Many Faces of the International Criminal Court’ [2012] 10 Journal of International Criminal Justice 5
Kaczorowska-Ireland, A., Public International Law (5th edn, Routledge 2015)
Klabbers, J., International Law (2nd edn, Cambridge University Press 2013)
Koh, HH., ‘Transnational Legal Process’ [1996] 75 Nebraska Law review 181
Krisch, N & B Kingsbury, ‘Introduction: Global Governance and Global Administrative law in the International Legal Order’ [2006] EJIL 1
McGoldrick, D., ‘The Boundaries of Justiciability’ [2010] 59 International and Comparative Law Quarterly 4
Morgenthau, HJ., Politics Among Nations: The Struggle for Power and peace (2nd edn, Oxford University Press 1954)
Nussbaum, A., A Concise History of the Law of Nations (Macmillan 1947)
O’Brien, J., International Law (Routledge 2001)
Paust, JJ., ‘The Reach of ICC Jurisdiction over Non-Signatory Nationals’ [2000] 33 Vanderbilt Journal of Transnational Law 1
Schabas, WA., An Introduction to the International Criminal Court (4th edn, Cambridge University Press 2011)
Shaw, MN., International Law (7th edn, Cambridge University Press 2014)
Thirlway, H., ‘The Sources of International Law’ in International Law (MD Evans ed, OUP 2010)
Trahan, J., ‘Is Complementarity the Right Approach for the International Criminal Court’s Crime of Aggression?: Considering the Problem of ‘Overzealous’ National Court Prosecutions’ [2012] 45 Cornell International Law Journal 569
Verzijl, JW., International law in Historical Perspective (Vol. 1, Leiden 1968)
Wallace, R & O Martin-Ortega, International Law (7th edn, Sweet & Maxwell 2013)
Waters, MA., ‘Mediating norms and identity: The role of transnational judicial dialogue in creating and enforcing international law’ [2004] 93 Geo. LJ 487
Zompetti, J & S Zompetti, The International Criminal Court: Global Politics and the Quest for Justice (International Debate Education Association 2004)
Cases and Opinions
Exchange of Greek and Turkish Populations, Advisory Opinion, 1925, PCIL, Ser B, No 10
Inter-American Court of Human Rights, Advisory Opinion, OC-14/94, Ser A, No 14, 116 ILR 320