5.3.7 National Compliance with International Law
National compliance with international law is not a problem for most countries: national law can be framed to achieve alignment.
Using the EU model as a template (5.3.5.2), sovereignty is pooled – not lost – because national legislatures can make decisions whether to comply with international law or whether to secede. They retain this freedom and, as long as they remain signed up, they add their weight to the collective authority – strengthening it and increasing the protection that it offers every country, including their own.
There are different types of co-operative relationship between national and international law:
● Countries can adopt international law by making references to it in their own laws; e.g. the UK’s treatment of European Human Rights (5.3.5.4).
● They can sign international treaties, such as those on human rights (5.3.6.2), to bind themselves and others to court jurisdiction.
● They can align their legislation so that it is compatible with international law, without explicitly according supremacy to the latter. For example, the ICC’s role is complementary to national courts: it only prosecutes “when States are unwilling or unable to act”. Countries can preserve their sovereignty by legislative compatibility with the Rome Statute and by adopting compatible operational rules for their armies.
● It is also possible, however, for international law to have supremacy over national law and to be enforced without the agreement of the country concerned, as was the case in the UN-sanctioned intervention in Libya (5.3.6.5). Libya’s sovereignty was breached in that instance.
Whichever approach is chosen, the effect is that hierarchies of rules can be created, from global to local, without meaningful loss of national sovereignty in most cases. Judgements on individual issues can gradually allow for local and regional differences, and countries retain their ability to opt out in the last resort. The resulting network of rules gains in strength as more countries agree to be bound by them. An interconnected hierarchy of legal powers is both more flexible and more integrated than having separate ‘islands’ of power in a world that is increasingly both ‘joined up’ and pluralist.
America is a glaring exception. It hasn’t agreed to be bound by international law, and conservatives strongly resist the concept – arguing that the U.S. Constitution is the only authority that they recognise. No U.S. President can bind his or her successor without a Constitutional Amendment, which requires a two-thirds majority of both houses of Congress. A Conservative News and Views article, Qasem Soleimani, Iran, and the Rule of Law, illustrates that viewpoint:
“Government has only that power people delegate to it.
This isn’t about one incident or one man, but about holding Presidents accountable to the people’s representatives in Congress and holding Congress accountable to the U.S. Constitution and the rule of law.”
The article argues that Donald Trump’s order to assassinate Soleimani was illegal, but only in terms of American law. Its author would not recognise international law.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/537a.htm.