TUESDAY, JULY 24, 2012: The United Nations and International Law
Realists are pessimistic about the prospects for peace in the international
system, while liberals and constructivists are optimistic about peace and
cooperation, and they emphasize the importance of institutions in creating
international rules and norms.
Constructivists believe non-compliance with international rules and norms will
lead to long-term costs, which states have an incentive to follow. Liberals say
states follow norms because it becomes costly for them not to do so (dueling
What is International Law?
In essence, it is a set of rules and principles that are intended to regulate state
behaviour. It is also a consent-based system of governance and regulation of
Laws are only applicable to states when they have consented to be part of these
norms. No state can just be expected to follow a law, no matter how
widespread it might be, unless it has consented to be party to it. In the domestic
realm, the state forms laws in whatever method applicable, and those laws are
imposed on the domestic population, and they have no choice but to follow
Abiding by laws are completely voluntary due to the concept of sovereignty.
Sovereignty is the concept that states that every state has supreme authority
and autonomy as to what goes on in its own borders and how it pursues in
international relations. Technically this means no state can impose themselves
on another or force another state to do something it does not want to do. In
international law, this means no group of states can impose a rule on another
Once states have consented to adhere to a particular law, they have no choice
but to follow them. International laws are binding in this sense (“hard law”).
ex) If you have agreed to diplomatic immunity, you cannot change your mind
because you dislike one particular diplomat.
Hard laws are the classic sense in which international law is classified. “Soft
laws” are more like nascent rules, or they are precepts that emerge from
deliberations inside institutions. They are not binding on any states. Scholars
expect these soft laws to still influence state behaviour in meaningful ways
because they still proscribe certain things in international behaviour. They
function more as non-binding guidelines that setup certain norms and
ex) 1992 Guidelines on the treatment of Foreign Direct Investment by the WTO.
Many states did chose to comply, but more importantly, it was useful for a
precursor to the establishment of hard law. Soft law’s semi-legal framework
usually precedes the imposition of hard laws on the same topic. In new issue areas, like Internet governance, where states are wary to create
laws, soft law gives an opportunity to regulate without imposing laws before
states may be ready to do that.
There are a number of sources of laws:
1. Customary laws are uncodified and unwritten, but instead have
developed from certain practices from state interaction over time.
Diplomatic laws such as the law of diplomatic immunity, which developed
as a custom, and laws that regulate the conduct of war are examples.
2. International treaties are written and codified. There is a tendency of
customary laws to become treaty laws. They could be bilateral (ex.
between the US and the USSR during the Cold War on Arms Reductions)
or multilateral (customary laws of war were gradually codified into the
Geneva Conventions in 1864, 1906, 1929, and 1949). There is a growing
role of institutions in the creation of these laws. States use this is a
platform to create their law. For examples, IAEA was created from the
Non-Proliferation treaty, but Iran and North Korea’s failure to adhere to
these laws will make them vulnerable to punishment. Another example
is the WTO, which has strong enforcement mechanisms to ensure states
adhere to the law, or face being thrown out of the organization.
The United Nations has been the arena where most states go to make treaty. It
is the institution with the highest membership. The importance of the UN is
particularly striking in the field of international peace and security. The UN, as
noted by Churchill, “was never meant to create heaven on earth, just to save it
from Hell.” The UN enshrines the idea of states as sovereign entities and uses
the idea that state sovereignty is inviolable as its main premise. It seeks to
effectively prevent, control and terminate inter-state war.
The UN makes illegal any act that clearly violates the territory and sovereignty of
another state, and it seeks to create a system that enforces this. Collective
security is the primary mechanism through which the UN does this—Chapter 7 of
the Charter of the UN states they seek to deter and defend from “actions with
respect to threats to the peace, breaches of the peace, and acts of aggression.”
Article 41 authorizes the Security Council to determine if something is a threat,
and authorizes them to use military or non-military sanction. Article 42
authorizes the collective use of force as authorized by the Security Council as a
method of last resort.
The idea behind collective security is that if war does occur, theoretically
collective security will bring the aggressor quickly to task. Aggression will be
quickly identified and quickly acted on, causing the aggression to be reversed.
The logic behind collective security is that security is no longer the problem or
responsibility of a single state, and any breach of security is considered to be a
problem for all. The conditions of collective security are as follows:
o The collective system must be able to muster at all times such
overwhelming strength that the aggressor cannot stand up to that coalition. It needs to show that the majority of states in the international
system will respond by punishing the aggressor.
o They need to show that these states joining together all have the same
concept of security that they are defending. They must be seen to
possess a common interest and desire to punish aggression everywhere
and anywhere. If it becomes obvious to an aggressor that not all states in
a collective security coalition have an interest in punishing the
aggression, the threat of collective security becomes no longer credible.
o States must set aside their conflicting political interests for the common
good and the maintenance of security in the international system.
Critics (particular realists) point to several issues in collective security. The utility
of the UN as an organization to address fundamental issues in peace and security
is overstated and exaggerated. They argue something like a collective security
system is utopian and will rarely if ever work. Practically, it is useless in
conveying any sort of credibility to potential aggressors.
1. Firstly, states need to be able to accurately identify aggression. The more
accurately you can say which actions will or will not ignite responses, the
more credible your threat will be. This is often very difficult in the
international system—it is difficult to prove who was the first aggressor
because there is no impartial observer. Different states in the collective
security organization could have different ideas about what constitutes
aggression. While there may be consensus on responding to aggression,
they could all think aggression is something different. Does a border
clash constitute aggression?
2. A common understanding is difficult to achieve and aggression is a
concept that is very unclear. States may often have different assessment
of who the aggressor is. The problem is particularly severe because using
force first isn’t always equal to the aggressive actions—particular with
preventative or preemptive strikes (and Article 51 of the Charter allows
states to use force in defense). States can always justify their action as an
act of self-defense. States may have different ideas on which state is the