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INTRODUCTION

Power is seductive and not only to politicians. Bertrand Russell, writing on power, surprisingly
characterized it as "the highest aspiration" and the "greatest reward" of human beings, a view
probably shared by many political leaders, though rarely by philosophers.1International lawyers
tend to be ambivalent about power. They recognize, of course, that power is a pervasive factor in
human affairs and especially in the behavior of states. However, many see power as antithetical
to law, in particular as inimical to the conditions of equality and reciprocity essential to a legal
order. The weakness of international law is often attributed to power politics and, more basically
, to the anarchical international order where might makes right.2The mistrust of state power by
international lawyers goes back some four centuries, when sovereign states were emerging in
Europe, asserting their power through edicts and military force
.
The founding fathers of international law Vittoria, Suarez, Grotius condemned sovereigns for
using their power in violation of the jus inter gentes.3 However, a century or so later, sovereign
power found its intellectual supporters in Hobbes, Spinoza and jurists who concluded that state
power was necessary to maintain order in a Europe ravaged by religious wars and peasant
rebellions. International law is a world "power process" in the sense that its decisions are taken
and enforced "by severe deprivations or high indulgences which areinclusive in their reach and
effects."4 This is not meant to be simply power politics. Rather, it describes the power process of
international law as affected by all the variables influencing decisions, including human values
that bear upon all community decisions.

1
BERTRAND RUSSELL, Power: a New Social analysis 11 (1938).
2
RAYMOND ARON, The Anarchical Order of Power, in CONDITIONS OF WORLD ORDER 47 (Stanley
Hoffmanned., 1968), at 25.

3
CHARLES DE VISSCHER, Theory and Reality in Public International Law 12-15 (P.E. Corbett
trans., rev. ed. 1968).

4
M.S. MCDOUGAL & W.M. REISMAN, International Law in Policy-Oriented Perspective, in the structure and
Process of International Law 231 (R. St. J. Macdonald & D.M.Johnston eds., abridged ed., 1989), at 215.

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CHAPTER 1: EQUITY IN INTERNATIONAL LAW

A notable feature of the Cold War was the ability of the nonaligned Third World states to obtain
benefits from the "superpowers" seeking to obtain competitive advantages or to avoid losses in
power or prestige. The end of the Cold War dramatically reduced the power of the Third World,
but there remain situations in which nonalignment of weaker states can be used as a lever to
obtain benefits from the rivalry of more powerful states.
Power is not fungible. It is not like money. Its utility depends on context and the specific factors
that affect the power relationship. Even the one recognized superpower is increasingly made
aware that its immense power is not equally usable and effective in all places and all conditions.
It is also relevant to international law that the imprimatur of a pluralist world community is
generally required to create or modify the common law of states. The unequal distribution of
power and the presumed requirement of consensus among the international community as a
whole (the "general will") invite more specific questions on the ways in which international law
is created and sustained.
It is still important to bear in mind that power is not fungible. Attempts by military powers to use
force in support of new or controversial norms do not always succeed. In cases of this kind,
power is subject to limitations that arise out of internal conditions .Conditions that lead to
resistance by hostile populations and competing claimants to power ,for eg. Serbia and Iraq, and,
earlier, Nicaragua reveal the limits of foreign military power to impose or change regimes.5
The enhanced movement of funds and technology across national borders, the spread of market
economies and the globalization of communication networks have created power resources that
have potent effects on international conduct and norms. Free markets and capital mobility create
incentives, rewards and penalties within as well as outside governmental structures. Non-state
mechanisms and rules based on functional needs include coercive elements. They may have the
effect of limiting governmental power, but they also have distinctive coercive effects, changing
conduct and expectations and constituting, in effect, a transnational normative order alongside
the public international law of the nation-states that is certain eventually to have a strong
influence on customary law and treaties.6

5
www.vanderbilt.edu/lapop/nicaragua/2010-political-culture
6
O. SCHACHTER, The Decline of the Nation-State and Its Implications for International Law, 36 COLUM.

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Recent experience has shown that human rights, the status of women, environmental
improvement, disarmament these sectors likewise exercise power through techniques of
advocacy and mobilization of opinion that ensure an impact on governments and international
associations. Their power finds support in the new social identities their adherents have
developed, for example, as feminists, human rights supporters, environmentalists and other roles
that cross national lines and influence political action on different levels of state and non state
authority.7
A current example that comes to mind example is the active role of human rights advocates in
promoting criminal action against the Chilean ex-dictator Augusto Pinochet .Whatever the legal
outcome, it is at least worth noting that the innovative international judicial action was initiated
by nongovernmental advocate in itself an expression of their power.( Amnesty International and
Human Rights Watch were particularly active). Much can be said about the role of power in the
international legal processes involving law making through conferences and assemblies. In this
area, the equality of states is an entrenched principle; all have equal rights to speak and vote.
Actually, no such lawmaking conference takes place without account being taken of significant
disparities in power and the practical necessity of exchanging benefits and burdens to reach an
acceptable outcome.
Moreover, in these conferences, states rarely act autonomously in pursuit of their self-defined
interest. They are generally compelled to seek an effective voice through blocs based on political
affinities, geography or shared interests.8
The process of customary law, together with its basic principles (such as reciprocity, jurisdiction
and legitimate expectations), qualifies (i.e., limits) the self-interested application of law by self-
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interested states. International law is not an ideal construct, generated solely in response to
human needs. It is a product of the play of power and interest, conditioned by material facts and
by perceptions of needs and values. The friction between demands and capabilities together with

7
KAREN KNOP, Of the Male Persuasion: The Power of Liberal Internationalism for Women, 93 ASIL PROC.
(2000).

8
OSCAR SCHACHTER, Law-Making in the United Nations, in PERSPECTIVES ON INTERNATIONAL LAW
120,
135-36 (N. Jasentuliyana ed., 1997).

9
MICHAEL BYERS, Custom, Power and the Power of Rules, 17 MICH. J. INT'l L. 109 (1995).

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the relation of forces gives shape and direction to the legal principles and rules. For these
reasons, international law, broadly speaking, reflects and sustains the existing distribution of
power and political order.10 While the exercise of power is in many respects legitimated by
international law, it is also true that power is a factor in limiting the efficacy of legal constraints.
There is still a Hobbesian element in the present international order. A relatively powerful state
may pursue its perceived interest in violation of its international obligations; it may do so with
impunity or pay a price.

Moreover, it may by its very violation shape the future law. Power matters.Nonetheless, states
generally conform to international law, and, by and large, the more powerful states have a stake
in the stability and efficacy of the legal system. The pervasive use of legal concepts and
principles in international governmental discourse both reflects and contributes to adherence to
the law .11 The true basis of the peace and order in which we live is not fear of the policeman; it
is the self-restraint of the thousands of people who make up the community and their willingness
to obey the law and regard the rights of others. The true basis of business is not the sheriff with a
writ of execution; it is voluntary observance of the rules and obligations of business life which
are universally recognized as essential to business success. 12 Thus, the difference between
municipal and international law, in respect of the existence of forces compelling obedience, is
more apparent than real, and there are sanctions for the enforcement of international law no less
real and substantial than those which secure obedience to municipal law.13International law
supports order in the world and the attainment of humanity's fundamental goals of advancing
peace, prosperity, human rights, and environmental protection

10
H. KELSEN, The Law of the United Nations xv (1950)
11
BENEDICT KINGSBURY A Concept of Compliance as a Function of Competing Conception of lnt 'I Law 19
Mich. J. Int'l L. 345, 358 (1998).

12
ELIHU ROOT, The Need of Popular Understanding of lnternationalLaw, 1 AJIL 1, 2 (1907)

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INTERNATIONAL LAW IN TIMES OF HEDGEMONY

There have been voices for centuries attacking international law in order to promote the
dominance or hegemony of a single nation. After 9/11, such advocates succeeded in getting
America's leaders to invade Iraq, establish Guantanamo Bay and black sites, use waterboarding
and other forms of torture and coercion during interrogation, and execute individuals in defiance
of the International Court of Justice. Anti-international law voices have presented international
law as powerless and unworthy of respect. International law has authority because it is widely
accepted as law. Part of the evidence of that acceptance is found in the fact international law has
forceful means of enforcement armed force, sanctions, counter measures, and courts .14

UNILATERAL ARMED MEASURES:

Top United States government lawyers after 9/11 developing legal arguments to justify torture
and coercion of detainees during interrogation. These lawyers could draw on an anti-
international law tradition that denigrates international law for its lack of enforcement means. In
fact international law has means of enforcement, but, more importantly, it is accepted by the
international community as law. Acceptance and enforcement together support the claim that
international law is law. With this acceptance, international law has the capacity to support the
common aspirations of all humanity.15 The UN Charter regulates the use of force by states. It
permits states to use armed force to enforce a limited set of rights under international law.
Principally, states may use force in individual or collective self-defense against a significant
armed attack. Even in such a case, force may only be used against the state responsible for the
armed attack and only to the extent necessary and proportional to the goal of defense. These
rules limit the use of major military force to respond to terrorism. The coalition liberation of
Kuwait in 1991 is an example of the lawful use of force in self-defense. The coalition use of

14
RICHARD OLNEY, The Development of International Law, 1 AJIL 418, 422 (1907)
15
FORDHAM, BENJAMIN O. 2008. Economic Interests and Public Support for American Global
Activism.International Organization 62 (1): 163182

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force against Iraq in 2003 violated the law. International law clearly prohibits uses of force to
pre-empt or prevent threats.16

Collective Armed Measures

States acting under the authority of the UN Security Council have greater scope to use armed
force to enforce international law than states acting without authorization. The Council has the
power to order uses of force in cases of threats to the peace, as well as actual breaches of the
peace. The 2005 World Summit Outcome recognizes that threats to the peace may include
situations of serious human rights violations. Uses of force authorized by the Council are also
regulated under the general principles of necessity and proportionality. Australia's use of force in
East Timor in 2000 complied with these rules; NATO's use of force in 1999 in the Kosovo Crisis
did not.17

Unilateral Countermeasures:

The most widely available forceful method of enforcing international law is the countermeasure.
Countermeasures are regulated under the law of state responsibility. They are countermeasure to
otherwise unlawful measures taken in response to a prior wrong, following notice by an injured
state. Countermeasures must be proportional in the circumstances. They may include armed
measures so long as the force used is minimal such as in cutting nets of fishing vessels caught
fishing in violation of treaties. Because economic measures are a common form of
countermeasures, countermeasures are increasingly subject to prior adjudication by the World

16
GILLIGAN, MICHAEL J. 2006. Is Enforcement Necessary for Effectiveness? A Model of the International
Criminal Regime. International Organization 60 (4): 935967.

17
WIPPMAN, DAVID. 1999. ATROCITIES, DETERRENCE, AND THE LIMITS OF INTERNATIONAL
JUSTICE. FORDHAM

INTERNATIONAL LAW JOURNAL 23 (2): 473488

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Trade Organization's Dispute Settlement Body. Thus, they increasingly resemble law
enforcement measures of national legal systems.18

Collective Countermeasures:

International organizations or other established groups of states also take countermeasures in


response to international law violations. One category of such measures is to enforce the rules of
the organization or group such as International Monetary Fund measures against borrowers
that fail to repay. Collections of states also take measures to enforce general international law.
These measures are commonly termed sanctions. Sanctions are a general-purpose law
enforcement tool. They must be proportional in the circumstances and may require Security
Council authorization. In the case of human rights, however, collective action short of significant
armed force may be lawful today.19

International Court Enforcement

Law enforcement in national legal systems is subject to court supervision. That is increasingly
the case in the international legal system with the proliferation of courts and tribunals. This is a
welcome development though it brings with it the need for more sophisticated process theory
as to the interrelation of courts. In addition to supervising enforcement, some international courts
have scope to enforce their decisions; all have the inherent authority to enforce interim orders. In
the case of the International Court of Justice, the Security Council was given specific authority to
aid in enforcement, but that is far from the only means. Indeed, when Americans were ordered to

18
BELLO, JUDITH HIPPLER. 1996. THE WTO DISPUTE SETTLEMENT UNDERSTANDING: LESS IS
MORE. AMERICAN

JOURNAL OF INTERNATIONAL LAW 90 (3): 416418


PELC, KRYZYSZTOF J. 2014. The Politics of Precedent in International Law: A Social Network Applica-tion.
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American Political Science Review 108 (3): 118.

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be released from unlawful detention in Iran in 1980, many states in the world employed
economic sanctions to aid in the enforcement of that order.20

National Court Enforcement

National courts have extensive control over people and assets and, thus, have impressive
capacity to enforce international law. More international law is likely enforced through national
courts than in any other manner. Decisions flowing from almost 200 court systems may lead to
varying and even conflicting decisions as to the requirements of international law, possibly
leading to fragmentation. New classical enforcement theory that teaches that natural law, positive
law, and process theory can guide national courts to optimal decisions to keep international truly
universal. These courts must also respect certain international law principles in the conduct of
adjudication from jurisdictional principles to due process. This chapter contrasts a decision of
American courts refusing to enforce an ICJ judgment with a German decision speaking of the
importance of doing so in support of individual human rights and the law of the international
community.

International law supports order in the world and the attainment of humanity's fundamental goals
of peace, prosperity, respect for human rights, and protection of the natural environment. These
goals can best be realized through international law, which uniquely has the capacity to bind all
states no matter how powerful. It is through international law that competing powers and
divergent cultures can reach consensus. International law's power is based on acceptance. It is
endowed with enforcement capacity and the hope of all humanity.

20
Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in
Accordance with the Charter of the United Nations, G.A.Res. 2625 (XXV), U.N. Doc. A/RES/2625, at 121 (Oct. 24,
1970).

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CHALLENGES TO THE EFFECTIVENESS OF INTERNATIONAL LAW

Keen followers of international affairs often wonder why, despite the prohibition on the use of
force by the UN Charter, States still resort to this means of addressing international disputes.
Explanations vary. Legal experts offer various technical explanations for this development. This
includes that the rules governing the use of force are outdated and do not offer enough protection
for States. Non-lawyers blame the double-standard of international law which allows rich and
powerful States to act with impunity while weak and poor States are held accountable for their
conducts. Others blame the special status accorded to the five permanent members of the
Security Council by the veto vote. Regardless of divergent viewpoints, all agree the prohibition
of the use of force is less effective than other areas of international law.

This is due principally to lack of compliance by some States, and lack of enforcement against
rich and powerful States. It is also difficult for States not to defend themselves against
threatening States until those have attacked them. The presence of nuclear weapons makes it
difficult for most States to sit and wait for an attack before they respond. Overcoming these
challenges requires making the Security Council work more evenly and responsibly; ensuring
greater transparency and consistency in the administration of collective security by the United
Nations. More importantly, it requires the interpretation of the law prohibiting the use of force in
accordance with the reality of the twenty first century.21

It is often argued that international law began in the West. While one can contest whether it is
possible (or purposeful) to seek locating the birthplace of international law, in contradistinction
from its development, not many will argue that international law faces severe challenges in the
developing world in contrast to the developed world. In the developing world, the first problem
of international law is lack of its popularity. This arises through a combination of lack of
awareness, of most law students, about the utility and relevance of international law to their
societies. Secondly, the marketing of international institution and materials, has almost a
Western bias: international institutions such as the United Nations, the International Court of
22
Justice, the International Criminal Court (ICC), World Bank, are all located in the West. Most

21
Ibid

22
Ibid at 105.

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international law books report cases and jurisdictions that are preponderant Western as if cases
and courts in developing countries make no contribution to international law development.

Addressing these challenges calls for a greater balancing acts in the citing and administration of
international institutions; it requires a more even coverage of international law; it necessitates
making international law more visible to developing countries, and making their contributions to
international law more visible to the world. On their own, developing countries must do more to
popularize international law in their academic curricula, expose their judges more greatly to
international law, and afford international lawyers from the developing countries more
opportunity in the dissemination and practice of international law.23

International criminal tribunals have done much to define how international criminal justice
looks in practice. There is a world of difference between the rudimentary due-process norms of
Nuremberg and the meticulous attention to due process in the tribunals.... It took the
development of rules of procedure and evidence and the vital judicial gloss provided by the
jurisprudence of the tribunals to create a credible, viable body of international criminal law
capable of being applied by courts of law. The international criminal courts cannot, however, do
the judicial work alone .The tribunals, despite their precedent-setting importance, will never have
sufficient material and political support to prosecute more than just a few of the many
international crimes that take place. National courts will have to carry the burden of trying most
international crimes. Of the U.S. in particular, there is optimism about its potential to prosecute
international crimes, citing Barack Obamas disavowal of torture and the decision to close
Guantnamo. Even before the new administration took power, the U.S. had been doing a
reasonable job of prosecuting rank-and-file members of its military who commit international
crimes, though not in prosecuting higher-ranking individuals.... I believe this record will
improve.

23
CRAWFORD, supra note 10, at 394.

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CONCLUSION

Decisions, judgments and awards by international courts and tribunals are complied with in more
than 95% of the cases, including by big powers such as the United States. In Nicaragua the US,
he noted, had in fact complied with the court's order to stop mining Nicaragua's harbours, and
while it had not officially complied with the order on reparations, the judgment helped prod
Congress to cut off funding for the Contras. Furthermore, the US has appeared in more ICJ cases
than any other state. In all but two, it has fully complied with the ICJ's rulings, even when it has
lost.(The other case in which America failed to comply was an ICJ ruling blocking the execution
of a Mexican national in Texas; America's federal government accepted the ruling, but the state
government of Texas ignored it.)24

Russia hardly seems to be a poster child for abiding by international law. Indeed, the country
seems to be ignoring a case brought by the Netherlands over Russia's seizure and imprisonment
of a ship of Greenpeace activists last summer. Yet Russia in fact released the Greenpeace crew
and its ship shortly after the case was brought; and it did show up to defend itself in a case
Georgia brought against it in 2008. China, meanwhile, is trying to ignore the Philippines' claim
over the South China Sea entirely, but that behaviour is a departure from international norms.
America is no choirboy. But the idea that it regularly flouts international law is wrong, as is the
sense that international courts are irrelevant. In fact treaties and international courts are
reasonably effective in guiding the behaviour of most countries, even without enforcement
powers. The widespread impression that America ignores international law is to some extent
based on a misunderstanding of what international law is. NSA bulk surveillance and spying, for
example, do not violate international law. Drone strikes might, if an affected state decided to take
America to court over them. By the same token, however, it's not clear that the secession of
Crimea or of eastern Ukraine's Donbass region, as such, violate international law.

Yet the view that America makes its pitches to international order from within a glass house is
also partly correct. America's approach to foreign policy has long enjoyed a strain of

24
Marc Weller, , THE INTERNATIONAL LAW THAT IS AMERICA: REFLECTIONS ON THE LAST CHAPTER OF
THE GENTLE CIVILIZER OF NATIONS, 24 LEIDEN J. INTL L. 127, 129 (2011).

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exceptionalism. And the Bush administration's aggressive unilateralism did lasting damage to the
country's reputation as a guardian of global law and norms.

Americans' attitudes towards international institutions have always been schizophrenic. The
country has been behind the foundation of every major global institution since the start of the
20th century. The whole project of global governance is suffused with American utopian
optimism. At the same time, Americans have always been suspicious of international
entanglements. Large numbers of Americans today believe that the very international institutions
the country helped create to promote a liberal, rule-bound world order are actually some sort of
conspiracy by foreigners to undermine or seize control of America. (This is something we
discussed in our cover story two weeks ago.) As for President Obama, he took office promising
multilateralism, yet his policies on drone strikes and NSA surveillance have created the
impression that nothing has changed.

America spent much of the last decade seduced by arguments that it could not afford to let
international law and norms get the way of its security. Now that it has realised that American
security and geopolitical aims are consistently better served by upholding international law and
norms, it is having trouble mustering the credibility to get the rest of the world to go along.

n the decades to come, Washington will continue to violate national sovereignty through old-
style covert as well as open interventions, even as it insists on rejecting any international
conventions that restrain its use of aerospace or cyberspace for unchecked force projection,
anywhere, anytime? Extant laws or conventions that in any way check this power will be
violated when the sovereign so decides. These are now the unwritten rules of the road for our
planet. They represent the real American exceptionalism.

What is commonly referred to as international law is really just a conglomeration of treaties,


precedents derived from international dealings, and contracts. There is no international body that
truly enforces international agreements, except to the extent that the United Nations may
authorize member states to use coercive or even military sanctions. Even then, some nations,
such as those on the security council, have broad de facto immunity. Thus, many international
laws only apply to these countries to the extent that they agree to be bound by them.

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BIBLIOGRAPHY

Books

1. DAVID HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW (2010)


2. HANS KELSEN, GENERAL THEORY OF LAW AND STATE (1999)
3. JAMES BRIERLY, THE LAW OF NATIONS (1963)
4. HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW (1948)

Research Articles

1. Jure Vidmar, Territorial Integrity and the Law of Statehood, 44 THE GEO. WASH. INTL L.
REV., 101-149(2012)
2. Lawrence S. Eastwood Jr., Secession: State Practice and International Law After the
Dissolution of the Soviet Union and Yugoslovia, 3 DUKE J. COMP & INTL L. 317-31
(1993)
3. Colin Warbrick, Recognition of States, 41 INTL & COMP. L.Q., 474(1992)
4. Gregory H. Fox, Self-Determination in the Post-Cold War Era: A New Internal Focus, 16
MICH J. INTL L. 736 (1995)

Conventions

1. Convention on Rights and Duties of States


2. U.N. Charter

International Documents
1. Declaration on Principles of International Law Concerning Friendly Relations and Co-
Operation Among States in Accordance with the Charter of the United Nations, G.A.Res.
2625 (XXV), U.N. Doc. A/RES/2625 (Oct. 24, 1970)
2. G.A. Res. 47/221, U.N. Doc. A/RES/47/221 (Jan. 19, 1993)(Czech Republic)
3. G.A. Res. 47/222, U.N. Doc. A/RES/47/222 (Jan 19, 1993) (Slovakia)
4. G.A. Res. 60/264, U.N. Doc. A/RES/60/264 (June 28, 2006)

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