International law is simply an instrument for policymakers

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‘International law is simply an instrument for policymakers’. Discuss.
The debate around the concept known as ‘InternationalLaw’ is incrediblycomplexand multi-faceted.This is in part
due to the fact that the very classification of‘international law’ is fragmenting1
atan exponential rate.Human rights,
Humanitarianism and International Criminal Law are all encompassed by this collective term. The designation
‘policymaker’ is equallynebulous.It could refer to the statesmen who ultimatelysign proposals into law,members
of international bodies like the United Nations and European Union, or the lawyers who advise every step of the
way. Each of these parties has a vested interest in the industry that is creating and enforcing international law.
Indeed, it would be in the best interests2
ofsome parties to prolong the process of law-making and its application
for as long as possible. Owing to the constraints of this essay, I will focus largely on the inner workings of the
United Nations (UN), including the United Nations Security Council (UNSC) and the resultant norms, customary
laws and treaties that grow from these entities. I will also look at the critical weaknesses attributed to the
enforcement mechanisms of international law. There have been instances where internationally agreed upon
principles have either been disregarded or manipulated to suit an agenda. Conversely, it is also true that the
international legal system can occasionally generate unpredicted results, particularly in the ‘pre legal’ areas of
norms and customary law. The conclusion that international law is intrinsically flawed and therefore should be
utterly disregarded,is a severely reductionist position to take. However, the sheer weightofevidence would prove
the title statement to be fairly accurate.
There is fierce debate3
amongst legal theorists on the concept of international law and by extension how it is
applied. The humanist or ‘rationalist’ perspective, built upon by the likes of Hugho Grotius, sees law amongst
nations as a ‘moral imperative4
. This view is effectively delineated in Hersch Lauterpacht’s essay The Grotian
Tradition in International Law. Lauterpachtargues that Grotianism is at that the very core of international law and
as a result the law must be regarded as an ongoing moral commitment among states5
. The extreme opposite to
this position is the ‘Hobbesian’ or realistview that the world is in a state of anarchy and so self-interestis the only
guiding principle among states6
.The Positivist opinion is less divergent than the previous two. Expanded upon by
the likes ofProfessor H.L.A Hart7
, it states that law should onlybe viewed empirically,in terms ofwhat it does and
not what it should do. If these theories were each applied to this question, wildly different conclusions could be
reached. Although I personally lean towards the positivist conclusion, it would be pertinent to bear all of these
theories in mind throughout the essay.
The origins ofany agreement,binding or otherwise, lie in the behaviour8 of individual nations toward one another.
Over time, such behaviours can become norms, customary law and ultimately treaties. Every major treaty will
attract global interest,and a resultant mediacircus9
to observe the treaty’s creation.In this regard it would certainly
be possible for a state to use a treaty as an instrumentfor political ends .On the other hand, norms and customary
law are a less tangible10
area ofthe legal system and for that reason are arguablyless open to manipulation.While
1 Martin Dixon and Robert McCorquodale, Cases andMaterials onInternationalLaw(Oxford,2003) pg 3
2 ReidMortensen, Alternative Perspectives onLawyers and Legal Ethics:Reimagining the Profession(Routledge, 2011)pg
15-20
3 Richard Falk, The Studyof International Law, AmericanLawJournal,1967, vol 61, 477
4John Parry, What is the Grotian Tradition inInternational Law?(Universityof Pennsylvania Law Journal Volume 35, 2014)
Pg 300-301
5 Ibid, pg 301-303
6 DavidArmstrong andTheoFarrell, International Lawandinternationalrelations 2nd edition(Cambridge, 2012)Pg 76-79
8 Louis Henkin, How Nations Behave 2nd edition(New York,1979) 320
9 HowardKurtz, The Trouble withAmerica’s Newspapers (Times, 1994) Discussedindepth pg298-310
10 GeoffreyBrennan and Lina Eriksson, Explaining Norms (Oxford,2013) pg 221

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this is a valid point, it mustbe then considered alongside the fact that a pre-legal normative practice is by its very
definition not legally binding11
.As a result, policymakers can be selective in choosing which ones to abide by, and
this would certainly reinforce the Positivist view12
. The European Court of Human rights has great authority in
relation to human rights,butis bound by the fact that it relies on Opinio Juris or the willingness ofits signatories to
abide by its rulings.Ifthe British parliamentdecided to repeal the 1998 Human Rights Act13
, it could be interpreted
as a challenge to this norm. This may lead to other policymakers challenging the norm, and ultimately to what
Nicholas Wheeler calls a “norm cascade”14
.This ‘snowball effect’ could have far reaching consequences beyond
that intended by the initial policymakers.
The United Nations Charter was created in 1945,and as of2016 has 193 signatories. The articles containedwithin
this wide ranging treaty raises some interesting questions aboutthe nature of international law. Article 2 (3) of the
Charter states that all members will settle disputes by“peaceful means”15
sothatinternational stabilityand security
are not threatened. This relatively hollow provision reflects the inherentcontradictions encompassing international
law. Every Permanent Five (P5) member of the United Nations Security Council, excluding China, has been
involved in foreign militaryaction in the lastfive years. It is difficult to argue that Article 2 (3) has much relevance if
the supposed leading lights of the United Nations do not abide by it. However, that could be challenged by
highlighting the role that the P5 member countries have played in peace agreements throughout the years. The
Dayton Peace Accords are but one example of a multi-partisan peace treaty relatively effectively16
brought into
force. It would appear then that members ofthe P5 are capable of taking a leading role in international disputes.
On a similar vein, Article 2 (4) focuses on the conceptof sovereignty, namelythe “threat or use of force”17 against
the territorial integrity of a state. This principle was blatantly ignored in 2013, when Russia annexed Crimea.
Referendums were admittedlyheld, but UN observers were not allowed in to observe18
so the truth of the results
is unknown.After the fact, Vladimir Putin openlyadmitted that Russian soldiers were operating in the region19
.It is
certainly a testament to the effectiveness of international law that a statesman can admit to violating the most
widely adopted international treaty in history, and not face any criminal proceedings. Admittedly, economic
sanctions were placed on key Russian officials20
,butthis does not exemplify the due process ofthe international
legal system.
A criticism frequentlylevelled atthe UNSC is that,in the words ofNicholas Wheeler,it is an “arena ofpower politics,
where the strong manipulate the weak.”21
The decisions made by the Security Council are generally binding, so
their conclusions are important for gauging the general efficacy of the United Nations.Furthermore, one veto from
a P5 member can halt any resolution. There have been some damning instances of questionable actions
undertaken, or rather not undertaken, seemingly in the pursuit of geopolitical ends. The most recent example is
11 Amanda Pereau-Sussaine andJames Murphy, The Nature of CustomaryLaw (Cambridge, 2009) pg 14
12 DavidArmstrong andTheoFarrell, InternationalLawandinternationalrelations 2nd edition(Cambridge, 2012)Pg 91
13 ‘Leading barristers give evidence onHuman Rights Act repeal’, Parliament UK,
http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-justice-subcommittee/news-parliament-
2015/repealing-hrs-act-inquiry-ev271015/ [Accessed 15th March 2016)
14 Nicholas Wheeler, Saving Strangers (Oxford,2010) pg5
15 United Nations, UnitedNations Charter, 1945, http://www.un.org/en/sections/un-charter/chapter-i/[Accessed 20th
March 2016)
16Lenora Fuller, Bosnia Peace Operation:Progress TowardAchievingthe DaytonAgreement’s goals(Congressional
report,1997) 21-23
March 2016)
18 Annyssa Bellal, The War Report:ArmedConflict in2014 (Oxford,2015) 79-80
19RussianRegional Government Encyclopaedic Dictionary(InternationalBusiness Publications,2015) Pg 41
20 NikolayAnguelov, Economic Sanctions vs. Soft Power (Palgrave Macmillan,2015) pg32-60
21 Nicholas Wheeler, Saving Strangers (Oxford,2010) pg291

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that of Syria, where the United Nations are only now beginning to seriously intervene in a war that has raged for
five years, costing over two hundred thousand lives22
. As Russia is supporting President Bashar al- Assad, and
America the Free Syrian Army23
it is still likelythat there will be significantpoints ofcontention in the long term .The
Syrian War is certainly not an exception, intervention in Darfur was stalled because China and Russia have
interests24
in that region. The UNSC has not been entirely indifferent however, the growing concept of global
responsibilityhas led to the emergentidea25
ofa ‘Responsibilityto Protect’ (R2P). The validity of this responsibility
is hotly debated,but there is clearlysome appreciation for its intent.All this considered,it would be trite to say that
states care only for themselves,but it would be woefully naive to conclude that moral and humanitarian concerns
are at the forefront of policymaker’s minds.
The way in which the UN Charter has been interpreted has bestowed a considerable amountofpower on the five
permanent members of the Security Council. For instance, the UNSC can exercise ‘implied powers’ which in the
words of the International Court of Justice (ICJ) allow the UNSC to “construe its authority beyond that conferred
upon it”26
This characteristically vague definition is open to interpretation, and consequently manipulation by
policymakers. The United Nations relies on ‘coalitions of the able and willing’ to enforce its decisions. These
coalitions are generallyauthorised bythe UNSC. However,the Charter does notexplicitlygive the Security Council
authority to adopt authorisation resolutions27
. The adoption of these resolutions is therefore an ‘implied power’,
withoutwhich the United Nations would be utterly impotent28
.Whether the ends justify the means is another issue
entirely. Again, this is an importantexample ofthe dualityofthe international system. Chapter seven ofthe Charter
bestows a considerable amountof influence on the council. Article 39 in no uncertain terms allows the council to
determine a “threat to the peace”29 and article 41 and 42 give it power to apply non-militaryand militarysanctions
respectively. The UNSC seems to have a collection ofrelatively vague powers thatthrough selective interpretation,
could be a powerful tool in the hands of a policymaker.
Furthermore, there are cases where countries have bypassed the UNSC entirely to pursue alternative military
strategies. This is where the Hobbesian perspective that self-interestprevails over all can truly gain traction. The
United States invasion of Afghanistan was justified under Article 51’s ‘inherent right of self-defence’30
with no
explicit UNSC approval31. Indeed, there was little evidence that America was at risk of further attacks after the
events of September the eleventh32
. In this instance, there was scant legal basis for pre-emptive invasion33
.
Similarly,the invasion of Iraq in 2003 was launched with tenuous evidence of chemical weapons and with no UN
approval34. Kofi Annan even said in 2004 that the operation was illegal.35 Russia’s annexation of Crimea has
22 Syrian Observatoryfor Human Rights, ‘DeathToll in Syria tops 55,000 in 2015’ (Syriahr.com, 2015)
http://www.syriahr.com/en/?p=41849
23 MaryLevocz, RussianForeignPolicy:What Drives Russia’s support for the Assadregime?(Revolutions, 2015) The entire
basisof the book
24 Amanda Gryzb, The WorldandDarfur:International Responses to CrimesAgainst Humanity(Insights, 2013) 19
26 Magdalena Martinez,Nationalsovereignityand international organisations (Brill,1996) pg 194
27 Niels Blokker, is the authorisationauthorised?(Ejil 2000) pg 543
28 Ibidpg 544
March 2016)
30 Ibid
31 Ben Smithand Arabella Thorp, The Legal Basisfor the invasionof Afghanistan (House of Commons Library, 2010) pg 2
32 Melvyn P. Leffler, 9/11 andForeignPolicy, Diplomatic Historyvol. 29, (SHAFR, 2005) 396-397
33 WilliamTaft,‘The Legal Basis for Preemption’, The Council on Foreign Relations
http://www.cfr.org/international-law/legal-basis-preemption/p5250 {Accessed on: 22nd March 2016)
34 Phillip Shiner andAndrewWilliams, The Iraq War andInternationalLaw(Hart, 2008) pg 28
35 ‘Iraq War Illegal, says Annan’, BritishBroadcastingCorporation
http://news.bbc.co.uk/1/hi/world/middle_east/3661134.stm [Accessedon:18th March 2016]

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already been mentioned, and it too contributes to the argument that the more powerful members of the UN can
selectively disregard the principles enshrined in the Charter.
The Universal Declaration ofHuman Rights (UDHR) established in 1948 is an interesting example ofwhen a non-
binding agreementhas seeminglygrown beyond its intended remit. ‘Declaration’ is an intentionallynon-binding36
assignation,the critical resultof which being that the agreementlacked an effective enforcementmechanism,so
was essentiallyjustemptywords.This was true atleastuntil the case of Ilarta v Pena-Irala 198037
in which the US
Court of Appeals concluded that the UDHR afforded certain legal protections to an individual beyond the exact
content of the declaration itself38
. That a non-binding agreement can evolve over time to form a legal basis for
future law-making, is a critical development in understanding the restrictions policymakers can have when
formulating international law.
Many treaties will have a caveat concerning the application of ‘derogations’ from the treaty in times ofemergency.
Some see this as a ‘get out’ clause for policymakers 39
to shield themselves from being bound too tightly by the
treaty they have agreed. The case of Brannigan and Mcbride v the United Kingdom 199340
shows how effective
provisions for derogations can be in deflecting commitments to a treaty. The court ruled in favour of the United
Kingdom as the situation in Ireland atthe time constituted a ‘state of emergency’41
.This precedent certainlythrows
both the motives of the policymakers and the importance of the treaty into question. Carl Schmitt espoused the
concept of ‘the exception’, namelythat in a time of great necessity,a sovereign nation retains the right to renege
on any of its prior legal obligations42
. Carl Schmitt was also a National Socialist during Hitler’s leadership of
Germany43
, so it is perhaps very telling that he should advocate this concept.
State actors’ choice of rhetoric when discussing possible breaches of international law can also be indicative of
their intent. For instance,during the Rwandan genocide there was a distinct unwillingness to label itas such44
.The
United States had suffered an embarrassing defeat in Mogadishu the year previously, and as a result President
Clinton was extremely reluctant to commit American resources in an intervention45
. The Convention on the
Prevention and Punishmentofthe Crime of Genocide has 147 signatories since its introduction in 1948. Article 2
of the convention defines genocide as the “intentto destroy, in whole or in part, a national,ethnic,racial or religious
group.”46
There is little doubt47
that the world community failed in its supposed obligations here. On the issue of
definitions,after September the Eleventh, PresidentGeorge Bush was empowered bythe United States Congress
to alter the description ofan ‘unlawful enemycombatant’48
.Unlawful enemycombatants are notafforded the same
protections as ‘lawful’ enemycombatants are under the Geneva Convention49
.This hadthe added effectofkeeping
36 DinahShelton, Commitment and Compliance: Non-Binding Norms (Oxford,2000) pg 449
38 Ibid
39 Kjetil Larson, The HumanRights TreatyObligations of Peacekeepers (Cambridge,2012) pg 298-300
40 Brannigan and Mcbride v United Kingdom, ECHR Ser A (1993), European Court of HumanRights, MartinDixon and
Robert McCorquodale, CasesandMaterialson International Law (Oxford,2003) pg 214
41 Ibid
42 MarianoCroce andAndrea Salvatore, The Legal Theoryof Ca rl Schmitt (Routledge, 2013) 16-19
43 JosephBendersky, Carl Schmitt:Theorist for the Reich (Princeton, 1983) The entire focus ofthe book
44 Royce Ammon, Global Televisionandthe Shaping ofWorldPolitics (Mcfarland,2001) pg 123
45 Ibid, 123-125
46 United Nations, Conventiononthe Prevention and Punishment of the Crime of Genocide 1948
https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf[accessed 21st March 2016)
47 ‘Rwanda Genocide: UN ashamed, says Ban-ki Moon’, British Broadcasting Corporation
http://www.bbc.co.uk/news/world-africa-26917419 [Accessedon:March 21st 2016]
48 Jason Ralph, America’s War onTerror:The State of the 9/11 Exception fromBush to Obama [Oxford, 2016) pg 64
49 Geneva Conventions, Fourth Geneva Convention,1949, GeraldElfstrom, International Ethics (ABC-CLIO, 1998) Pg 151
[Accessed 19th March 2016)

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these prisoners separate from the Federal legal system.After fierce pressure,and a 2008 Supreme Courtruling,
this interpretation was dropped. The addition of a single word to a pre-established legal classification can have
momentous impact.
The performance of theoretically independent international courts sheds light on the real effectiveness of
international law enforcement. The International Court of Justice, the International Criminal Court (ICC) and the
Mechanism for International Criminal Tribunals (MICT) all currently reside in the Netherlands. In terms of
precedence,article 92 of the UN Charter describes the ICJ as the “principal judicialorgan”50
ofthe United Nations.
However as the ICC was not created until 200251
,the relevance of that article is debatable. An international court
is theoreticallyimpartial,butas a judge mustoriginate from somewhere,this can leave them open to manipulation52
.
This is further undermined by the intrinsic weakness of any international court, namely that they all rely on the
conceptof Opinio Juris. An international courtcannotcompel a country to accept its ruling53
,and therefore is only
as strong as its least cooperative member. Even a decade after the creation of the ICC, the United States still
refuses to ratify the Rome Statute54
. If a powerful member of the United Nations objects to a treaty, the whole
agreement is undermined. It is indeed difficult to defend the ICC, especially when one considers that it has
completed twelve sets of legal proceedings in its lifetime, only two of which have resulted in prosecutions55
.
Conversely,the International CriminalTribunalfor the former Yugoslavia (ICTY) had far greater success.Ofaround
140 complete proceedings,seventy have resulted in successful prosecutions. It would be an oversimplificationto
say that this is compelling evidence, as the ICC and the ICTY have different mechanisms and internal politics to
deal with. What it does show however, is that it is actually possible for international courts to indict and prosecute
those suspected of violating international law.
On the issue of Opinio Juris,there is a wealth of examples ofwhere latentdisputes have undermined or limitedthe
scope ofthe rulings ofthese courts.The 2010 advisoryopinion on Kosovo’s secession from Serbiais one example.
After a two year investigation,the legal opinion stated that there was no “applicable prohibition”56
in international
law preventing any actor from declaring independence.This rulinghas wider implications for separatistmovements
throughoutthe world,especiallyin Europe. Furthermore,the ICJ ruling does notestablish whether a region, a city
or even a village could be covered by this opinion57. It is difficult to believe that policymakers would want the
unilateral declaration ofindependence to become common practice.In spite of this,over half58
of the members of
the United Nations have recognised Kosovo’s Sovereignty, but Russia is one of many countries that has not59
.
Interestingly, Russia has still used the precedent to recognise the independence of South Ossetia 60. This
ambiguous outcome places uncertainty on the importance of Opinio Juris.
March 2016)
51 International CriminalCourt, The Rome Statute, 2002, https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-
0a655eb30e16/0/rome_statute_english.pdf [accessed on:19th March 2016)
52 Yuval Shany, Assessing the Effectiveness ofInternational Courts (Oxford,2014) pg 102
53 Godefridus Hoof, Rethinking the Sources of International Law (Kluwer,1983) pg 106
55 ‘Situations andCases’, International Criminal Court, https://www.icc-
cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx [Accessed22nd March 2016)
56 International Court of Justice, Accordance WithInternational Law ofthe Unilateral Declarationof Independence in
Respect of Kosovo, 2010 [Accessed 18th March 2016]
57 Ibid
58 Peter Hilpold, Kosovo and International Law:The AdvisoryOpinionof 2010 (Nijhof,2012) pg 264
59 Ibid, pg 263-264
60 Milena Sterio, The Right to Self Determination Under International Law(Routledge,2013) pg 148

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Another area worthyof consideration is thatof erga omnes obligations.Theseobligations seem to follow the Grotian
framework; that there are intrinsic principles states are bound to abide by irrespective of other factors. In the
Barcelona Traction Dispute of 1970, the ICJ ruled that ““all states can be held to have a legal interest in [some
fundamental right’s] protection.”61
These fundamental rights include “the Basic rights of the human person.”62
At
first glance this could be considered a great success for the international legal system, placing fundamental
obligations on states.This is at leastuntil one applies context to the situation.In 1970,South Africa was still fully
pursuing its policy of Apartheid and would do so for many years. It is difficult to ignore this reality, and it certainly
sours the tone of the ruling.
One cannot discuss international law withoutmentioning the ever raging human rights debate. The United Nations
Human Rights Council (UNHRC) has a modestrange of powers to investigate human rights abuses.They can for
instance dispatch Special Rapporteurs63
to countries suspected oflegal violations.However,a criticism frequently
levelled against the council is that it associates with countries suspected of human rights abuses. A damning
example is thatof Saudi Arabia, a country that in 2015 alone executed over one hundred and thirty people64
. Even
the UN commissioner on Human rights has stated his own concerns aboutSaudi Arabia65
, yet it retains a key role
in the council,arguably as a resultof its strategic importance.Any contribution the UNHRC may have to the legal
sphere, particularly regarding human rights is going to be undermined by this fact. The argument of ‘cultural
relativism’ could be applied here,namelythat it is inappropriate to apply Western values to other cultures.Indeed
this argument was reinforced by a 1993 UN human rights conference in which it was concluded that Cultural,
Religious and Racial differences must be “borne in mind”66 when discussing issues of human rights. This would
imply that the maintenance of cordial relations between policymakers, particularly strategically or economically
valuable ones, actually transcends the importance of international law itself.
Figures like the late Ronald Dworkin have attempted to separate the approaches to the creation and interpretation
of international law as a “coherencebased and holistic”67
practice,or one in which “individual legalitems determine
particular legal results.”68
This perhaps best sums up the reality of the argument. At times, policymakers have
projected their power and taken a commendable role in preserving human rights and stability.Yet it also seems to
be a widely accepted truth that legal and moral obligations come secondary to socio economic and geopolitical
factors. This is reflected in policymaker’s general use ofrhetoric and in the behaviours that stem from them .This
leads back to the theoretical perspectives discussedatthe beginning ofthis essay. Iwould maintain thatthe current
international legal system does not match the Grotian framework. My analysis would lead me to conclude that
policymakers do exert negative influence over the creation and enforcementofinternational law.Large state actors
have been able to carefully manipulate legislation for relative gains. It is possible for some elements of the
international legal sphere to evolve beyond the mundanities ofpower politics,butit is a slow,costly and ultimately
unlikely process.
61 International Court of Justice, Barcelona traction case, 1970 http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&case=50&p3=4 [accessed18th March 2016)
62 Ibid
63 Jennifer Preston, Indigenous rights:The U.N Special Rapporteur (Copenhagen,2000) pg 7
64 ‘Saudi Arabia must immediatelyhalt the executionof children’, UNHR, Office of the high commissioner for humanrights
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16487&LangID=E [Accessed:March22nd 2016)
65 ibid
66 DavidArmstrong andTheoFarrell, InternationalLawandinternationalrelations 2nd edition(Cambridge, 2012) pg 167
67 Amanda Pereau-Sussaine andJames Murphy, The Nature of CustomaryLaw (Cambridge, 2009) pg 15
68 Ibid

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7
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Taft,William,‘The Legal Basis for Preemption’,The Council on Foreign Relations http://www.cfr.org/international-
law/legal-basis-preemption/p5250 {Accessed on:22nd
March 2016)

International law is simply an instrument for policymakers

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