Foreign Policy
Spring 1998

International Law: The Trials of Global Norms

By Steven R. Ratner

The following abstract is adapted from Dr. Ratner's article, originally published in the Spring 1998 issue of FOREIGN POLICY. All rights reserved.

The move from describing the world to prescribing for it forms the core of international law. Can those committing human rights atrocities—war criminals from Bosnia or political leaders from Cambodia—be tried in foreign courts or before international tribunals? How can members of the United Nations ensure respect for the decisions of its Security Council? What is the best way to regulate transnational environmental hazards such as greenhouse gas emissions or ocean dumping?

All these questions turn on political decisions by states—but what international lawyers see and seek in such scenarios is a process whose actions are informed and influenced by principles of law, not just raw power. For international lawyers, devising and enforcing universal rules of conduct for states means overcoming two cardinal challenges: how to make such precepts legitimate in a diverse community of nations; and how to make them stick in the absence of any one sovereign authority or supranational enforcement mechanism.

During the Cold War, international institutions and judicial bodies such as the United Nations and the International Court of Justice (otherwise known as the World Court) were hobbled by both the bipolar split in world politics and its aggravation of tensions between the developed and developing worlds.

But today many of the blockages to international lawmaking and  implementation have loosened. Although legal scholars still ask what states can do on their own—pass extraterritorial laws, use force, or prosecute war criminals—they do so assuming that coordinated action is now more feasible than in the past. Global and regional treaties such as the Chemical Weapons Convention, the Maastricht Treaty, and the North American Free Trade Agreement now serve as the starting point for scrutinizing state behavior according to some objective standard.

The ground seems ready then for an acceleration of this century’s great trend in international law: the increasing international regulation of more and more issues once typically seen as part of state domestic jurisdiction. But as international law embraces new actors and a growing range of forms, topics, and technologies, and as it moves further away from strictly "foreign" concerns to traditionally domestic areas, its proponents must increasingly confront new obstacles head-on.

 

New Forms, New Players

Traditionally, most rules of international law could be found in one of two places: treaties or customary law (uncodified, but equally binding rules based on long-standing behavior). But as new domains from the environment to the Internet come to be seen as appropriate for international regulation, states are sometimes reluctant to embrace any sort of binding rule.

Today all but the most doctrinaire of scholars see a role for so-called soft law—precepts emanating from international bodies that conform in some sense to expectations of required behavior but that are not binding on states (the World Bank’s Guidelines on the Treatment of Foreign Direct Investment, for example). Soft law principles also represent a starting point for new hard law, which attaches a penalty to noncompliance.

Whether in the case of hard or soft law, new participants are making increased demands for representation in international bodies, conferences, and other legal groupings and processes. They include both recognized and unrecognized substate entities (Hong Kong and Tibet, for example); nongovernmental organizations; and corporations. Scholars accept that these other actors have independent views—and the resources to push them—that do not fit neatly into traditional theories of how law is made and enforced.

 

New Enforcement Strategies

Most states comply with much, even most, international law. But without a mechanism to bring transgressors into line, international law will be "law" in name only. The traditional toolbox to secure compliance with the law of nations consist of negotiations, mediation, countermeasures, or, in rare cases, recourse to supranational judicial bodies such as the International Court of Justice.

For many years, these tools have been supplemented by the work of international institutions, whose reports and resolutions often help "mobilize shame" against violators. But today, states, NGOs, and private entities, aided by their lawyers, have striven for sanctions with more teeth. And the UN's ad hoc criminal tribunals for the former Yugoslavia and Rwanda show that it is at least possible to devise institutions to punish individuals for human rights atrocities.

Nonetheless, the success of these enforcement mechanisms depends on the willingness of states to support them: legalism meets realism. When global institutions do not work, regional bodies may offer more influence over member conduct in economics, human rights, and other areas. In addition, domestic courts increasingly provide an additional venue to enforce international law.

 

Legitimacy Problem

As international organizations are freed up to take more actions by the end of the East-West conflict and the tempering of North-South tensions, the United States and its like-minded allies seem well positioned to impose their agenda on all. Legal scholars question whether Western dominance of the Organization of Security and Cooperation in Europe, UN, WTO, and other international institutions is not merely raw power asserting its muscle again, albeit through multilateral bodies, to the detriment of a genuine rule of law.

International legal scholars address the normative elements behind the enforcement measures taken by these institutions. Some ask classic lawyer questions such as whether similar cases are being treated alike. Other scholars view law as playing a legitimate role only when the power of mighty states has been diluted by a sort of international consensus on each issue. Still others perceive law and power as inextricably linked. Focusing on enforcement and legitimacy also provides a useful lens through which to evaluate U.S. reactions to international norms. As the world's sole superpower, the United States can defy international standards with little fear of immediate sanction; but other states will begin to question its motives in trying to strengthen important legal regimes such as those covering nuclear and chemical nonproliferation.

 

New Linkages

Finally, there is a new breed of scholarship linking previously distinct subjects, such as the environment and international law, and the realization among some practitioners that overspecialization leads to myopic lawyering.

Beyond the legal field, international lawyers must address the two-way interaction between international law and broader sociological and cultural trends in society, focusing on the issues raised when once strictly domestic concerns are subjected to international regulation.

Given that international legal academics are changing how they conduct their conversations and their scholarships, several intellectual hotspots deserve mention—in particular, trade law, environment, human rights, extraterritorial reach of domestic laws.

But regardless of the course of intellectual developments in these areas, international lawyers must accept that the suffusion of norms into decisions making is a long-term process and must be the result of changed attitudes on the part of governments. As they have in the past, international lawyers must therefore hope that the reactions of foreign policymakers will prove a reliable gauge of the power of their ideas.

 

Sidebar: Odd Man Out?

Sidebar: Nothing but the Truth?

Sidebar: International Law, Inc.

 

Further Reading

Jose Alvarez, “The Once and Future Security Council” (Washington Quarterly, Spring 1995)

Robert Beck, Anthony Clark Arend & Robert Vander Lugt, eds., International Rules: Approaches from International Law and International Relations (New York, NY: Oxford University Press, 1996)

Rudolf Bernhardt, ed., Encyclopedia of Public International Law (Amsterdam: North-Holland, 1992)

Ian Brownlie, Principles of Public International Law, fourth edition (Oxford: Clarendon Press, 1990)

Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1995)

Richard Pierre Claude & Burns Weston, eds., Human Rights in the World Community: Issues and Action, second edition (Philadelphia, PA: University of Pennsylvania Press, 1992)

I.M. Destler, American Trade Politics, third edition (Washington, DC: Institute for International Economics, 1995)

Lori Fisler Damrosch & David Scheffer, eds., Law and Force in the New International Order (Boulder, CO: Westview Press, 1991)

A Hard Look at Soft Law (Proceedings of the American Society of International Law, 1988)

John Jackson & Alan Sykes, Implementing the Uruguay Round (Oxford: Clarendon Press, 1997)

Mark Janis, An Introduction to International Law, second edition (New York, NY: Little, Brown and Company, 1993)

Robert Jennings & Arthur Watts, eds., Oppenheim’s International Law, ninth edition (London: Longman, 1996)

Christopher Joyner, ed., The United Nations and International Law (Washington, DC: American Society of International Law, 1997)

Bilahari Kausikan, “Asia’s Different Standard” (FOREIGN POLICY, Fall 1993)

Martti Koskenniemi, “The Police in the Temple. Order, Justice and the UN: A Dialectical View” (European Journal of International Law, vol. 6, 1995)

Andreas Lowenfeld & Brice Clagett, “Agora: The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act” (American Journal of International Law, July 1996)

Aryeh Neier, “Asia’s Unacceptable Standard” (FOREIGN POLICY, Fall 1993)

Steven Ratner & Jason Abrams, Accountability for Human Rights Atrocities in International Law (Oxford: Clarendon Press, 1997)

Philippe Sands, ed., Greening International Law (New York, NY: New Press, 1994)

Peter Spiro, “New Global Communities: Nongovernmental Organizations in International Decision-Making Institutions” (Washington Quarterly, Winter 1995)

Henry Steiner & Philip Alston, eds., International Human Rights in Context (Oxford: Clarendon Press, 1996)

Christopher Stone, The Gnat is Older than Man: Global Environment and Human Agenda (Princeton, NJ: Princeton University Press, 1993)

Ernst-Ulrich Petersmann, “The Transformation of the World Trading System through the 1994 Agreement Establishing the World Trade Organization” (European Journal of International Law, vol. 6, 1995)