Why do nations observe international law?
This OpEd posits that nations primarily adhere to international law due to cost-benefit analysis, thereby fueling skepticism regarding the nature and impact of international law on national policy.
Interplay between law and politics
On one hand, proponents of the legalist perspective argue that international law constitutes a binding framework that regulates the behavior of states in the international arena.
Rooted in treaties, conventions, and customary practices, international law sets forth norms and principles that govern everything from diplomatic relations to the use of force.
From the United Nations Charter to the Geneva Conventions, these legal instruments serve as the bedrock of international order, providing a framework for resolving disputes and promoting peaceful coexistence among nations.
Moreover, the enforcement mechanisms embedded within international law, while limited in scope, lend credence to its legal character. International tribunals such as the International Court of Justice (ICJ) and the International Criminal Court (ICC) offer avenues for adjudicating disputes and holding states and individuals accountable for violations of international law.
The principle of state consent, while often cited as evidence of the voluntary nature of international law, also reflects a fundamental aspect of legal sovereignty and the recognition of legal obligations by states.
However, critics of the legalist perspective argue that international law is inherently political in nature, reflecting the power dynamics and interests of dominant states in the international system.
The concept of state sovereignty, enshrined in international law, provides states with a shield behind which they can act with impunity, shielded from external intervention or legal scrutiny.
The selective application of international law, particularly by powerful states, further underscores its political underpinnings, with legal norms often invoked or disregarded based on strategic calculations rather than principled adherence to the rule of law.
Moreover, the process of lawmaking in the international arena is inherently political, shaped by the interests and bargaining power of states.
Treaties and conventions are negotiated through diplomatic channels, where compromise and consensusbuilding are often driven by political considerations rather than strict adherence to legal principles.
The United Nations Security Council, with its five permanent members wielding veto power, exemplifies the political realities that influence the enforcement of international law, with legal obligations often subordinate to geopolitical interests.
Economic Consequences and Business Considerations
In the intricate dance between law and politics in the realm of international relations, the impact on economics is profound and multifaceted. The question of whether international law is primarily a legal or political construct has significant implications for economic dynamics at both the global and national levels.
At its core, international law provides a framework for regulating economic interactions among states, shaping the rules of the game for international trade, investment, and financial transactions. Treaties and agreements governing trade liberalization, intellectual property rights, and investment protection form the legal infrastructure upon which the global economy operates.
From the World Trade Organisation (WTO) agreements to bilateral investment treaties (BITs), international law establishes the rights and obligations of states in the economic sphere, providing certainty and predictability for businesses and investors.
Moreover, the enforcement of international economic law has tangible economic consequences, influencing the behavior of states and the allocation of resources in the global economy.
Trade disputes adjudicated by the WTO, for example, can result in the imposition of tariffs or trade sanctions, disrupting supply chains and impacting the competitiveness of industries.
Similarly, investment disputes resolved through international arbitration mechanisms can lead to the payment of compensation or the modification of regulatory policies, affecting investor confidence and the attractiveness of host countries for foreign investment.
Furthermore, the intersection of law and politics in international economic relations shapes the distribution of power and influence in the global economy. The negotiation and implementation of trade agreements, for instance, reflect the bargaining power of states and the alignment of interests among different actors. Powerful states and multinational corporations often wield disproportionate influence in shaping the terms of trade agreements, advancing their economic interests and consolidating their market positions.
The politics of international economic law thus determine not only the rules of the game but also the winners and losers in the global economic order.
At the national level, the interaction between international law, politics, and economics is equally pronounced. States must navigate the complex web of international legal obligations while pursuing their economic interests and domestic policy objectives. Compliance with international trade rules, for example, may require countries to liberalize their economies, reduce trade barriers, and harmonise regulatory standards, impacting domestic industries and employment patterns.
Conversely, efforts to protect domestic industries or promote industrial policy goals may run afoul of international trade rules, leading to trade disputes and legal challenges.
Moreover, the politics of international economic law can exacerbate economic inequalities within and between states. The asymmetrical power dynamics inherent in global governance institutions often disadvantage developing countries, constraining their policy space and limiting their ability to pursue economic development strategies.
Trade agreements negotiated between unequal partners may perpetuate asymmetrical trade relations, exacerbating dependency and hindering the economic autonomy of weaker states.
Absence of a Judicial Leviathan
The absence of a centralised enforcement mechanism undermines the efficacy of international law as a truly legal framework. While international tribunals provide a forum for adjudicating disputes, their jurisdiction is limited and their authority subject to the consent of states. The principle of state sovereignty, while enshrined in international law, also serves as a barrier to effective enforcement, with states reluctant to cede authority to supranational institutions or submit to external scrutiny.
In other words, in the absence of a judicial Leviathan to mete out punishment, nations often find themselves entangled in the web of legal consequences.
Like travellers caught in a storm, the repercussions of legal transgressions can cast a pall over international relations, tarnishing reputations and straining diplomatic ties.
Yet, amid the tempest of political intrigue, the violator often emerges unscathed, a testament to the voluntary nature of legal compliance in the international arena.
In the National Interest
I argue that nations decide to obey or flout legal obligations based on considerations of national policy not directly linked to legal mandates. Whether it involves recognising a new regime or providing aid to a particular country, decisions are primarily driven by the perceived cost and advantage to national interests.
Nations typically comply with international law not out of respect for the law itself but rather out of concern for the consequences of non-compliance.
Despite violating international law, nations often remain full members of the international community rather than becoming outlaws.
Individuals and nations alike may face conflicting interests, balancing immediate gains against long-term benefits associated with law observance. In domestic societies, individuals often weigh the immediate advantages of violating the law against the potential consequences, while nations assess the risks and benefits of legal compliance.
Law serves as a deterrent, shaping behavior and reinforcing societal norms.
Despite the absence of a centralized authority to enforce compliance, important laws are observed by powerful nations in both domestic and international contexts.
Nations observe law not only out of fear of punishment but also due to extra-legal consequences such as social stigma and damage to international relations. Law enforcement aims to reaffirm standards of behavior and deter future violations, particularly among law-abiding but potentially tempted actors.
The influence of law extends beyond coercion, playing an educative role that shapes attitudes and behaviors. In many instances, law reflects existing norms and interests, while also establishing common standards and rules.
Treaties and agreements formalise commitments between nations, which are expected to be honoured in exchange for reciprocal benefits.
Anarchy in the International System?
While violations of international law occur, they do not invalidate the legal framework or diminish the effectiveness of the system. Law remains a crucial force in governing international relations, albeit dependent on various factors to ensure compliance.
Despite the deficiencies of international society, law continues to shape behaviour and contribute to the maintenance of order in the global arena. Notwithstanding its shortcomings, international law remains a potent force for promoting peace, stability and cooperation among nations.
The emergence of international human rights law, environmental law and humanitarian law attests to the evolving nature of global governance and the growing recognition of the importance of legal norms in addressing pressing global challenges.
In the annals of history, the tapestry of international law weaves a tale of triumphs and tribulations. While violations may mar its surface, the fabric remains resilient, guided by the hands of statesmen and diplomats. In this context, the influence of law extends far beyond the confines of legal statutes, shaping the contours of international relations and guiding the course of nations on the tumultuous seas of global politics.
In conclusion, the politics of international law profoundly shape economic dynamics at both the global and national levels. While international law provides a legal framework for regulating economic interactions among states, its enforcement and interpretation are inevitably influenced by political considerations.
The intersection of law, politics, and economics in international relations thus determines the rules of the game, the distribution of power, and the winners and losers in the global economy.
Understanding the interplay between these factors is essential for navigating the complexities of the contemporary economic landscape and advancing the goals of sustainable development and inclusive growth.
*The writer is currently a senior consultant at Global Asia Consulting and has a background as a senior researcher at the Malaysian Institute of Economic Research. The viewpoints articulated are solely those of the author.
