126.96.36.199 The Weaknesses of International Law
The weaknesses of international law stem from its politicised nature and its poor track record in maintaining global peace and security.
International law is insufficiently respected, and it doesn’t cover some contentious issues. The lack of respect for it is partly a political problem, as discussed later (188.8.131.52), and the Security Council lacks legitimacy because it is unrepresentative and politicised (184.108.40.206). It has proved impotent in practice, by failing to prevent the Russian invasion of Ukraine for example: Security Council Fails to Adopt Draft Resolution on Ending Ukraine Crisis, as Russian Federation Wields Veto.
International law also lacks legitimacy from a purely legal point of view. There is no separation of powers, as recommended for legal systems (5.2.8). The United Nations Security Council is making ‘laws’, deciding who is guilty and managing enforcement. No single body should have such powers because there are no checks and balances on its operation.
A more detailed examination of the weaknesses of international law reveals the gaps in its structure:
● The courts are working with a limited structure of primary rules that have been created by landmark international agreements such as the Rome Statute, and these have subsequently been modified by precedents. Their scope is narrow and there is no permanent international legislature with the power to introduce new laws.
● The Rome Statute could be extended, by establishing agreed rights as maturity develops. As Ronald Dworkin commented, in his book Is Democracy Possible Here?, it would be necessary to disentangle rights from political ideals: to establish which are the “baseline” rights that should be enforced by the international community, which rights are principles or recommendations, and which rights remain aspirational [pp. 32-42].
● The ICJ can resolve disputes which have been referred to it, but there is no pre-defined framework of international contract law to deal with treaties or with the commercial relationships between organisations in different countries.
● Interpol is a permanent international law enforcement agency to combat some types of crime (but not rights violations).
● The UN can contract with national and multinational armed forces for peace-keeping or armed intervention, but this is on an ad hoc basis.
● Individuals can be sentenced to punishments by the ICC, and can serve their sentences within national penal systems, but the punishment of a country is an altogether different matter. Economic sanctions might be cited as an example of an attempt to punish a country, but may be ineffective (220.127.116.11). Some concept of penalties will be needed if countries are to reach meaningful agreements on matters of mutual interest, such as the environmental and health challenges which the world now faces (3.5.7).
It is highly improbable that there will ever be an international legal system which has similar powers to those that exist in the EU, for example. There is scope for some increase in its robustness, though, without threatening countries’ autonomy in negotiating their own governance (other than in ways which might cause them to become a threat to other countries or to their own citizens).
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/edition04/5364.htm.