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International Law (IL) in International Politics
Definition/Scope: Examines the place and efficacy of international law in regulating state behaviour, particularly concerning the use of force.
The Perception–Reality Gap
This gap arises from inappropriate parallels drawn between domestic and international law (e.g., preoccupation with the ‘legal trinity’ of enforcement).
Perception: International law is regularly flouted; military conflict is the norm; law is prohibitive.
Reality: International law is usually obeyed; military conflict is the exception; law is facilitative.
Realist View: Portrays the world as anarchic, regulated by power (military power); suggests little scope for effective international legal regulation.
Why States Obey International Law
Law is generally facilitative, reflecting and strengthening social order, rather than prohibitive.
Compliance mechanisms include prudential calculations and perceptions of legitimacy:
Coercion: Compliance is forced via an asymmetric power relationship to avoid punishment. Systems based solely on coercion are resource-intensive and difficult to sustain.
Self-interest: Compliance is self-restraint motivated by an ad hoc calculation that adherence will result in a beneficial outcome (e.g., gaining a trustworthy reputation). Systems based solely on self-interest are unpredictable and unstable.
Legitimacy: Compliance results from the belief that a rule is of intrinsic value. Observance forms a constituent element of states’ interests and identities. Sustainable and effective legal regulation depends primarily on this widespread shared perception.
Breaches of Law: Breaches are exceptions that often demonstrate the strength of the law.
Breach usually attracts widespread international censure, which reinforces the rule.
States that break the law invariably attempt to justify their actions in terms of the law.
The Laws of Armed Conflict (LAWS OF WAR)
These laws are divided into two distinct sectors:
Jus ad bellum (The Law Towards War)
Function: Governs and seeks to limit resort to armed force in the conduct of international relations
Major Source: UN Charter Article 2(4): Prohibits the threat or use of force against the territorial integrity or political independence of any State.
This basic proscription is recognized as having the character of jus cogens (a peremptory norm from which no derogation is permitted).
Essential Exceptions to the Prohibition:
Individual or Collective Self-Defence (Article 51): The inherent right to self-defence if an armed attack occurs, until the Security Council takes necessary measures.
Debate exists regarding the legality of practices like anticipatory self-defence and preventive strike.
. Action Authorized by the UN Security Council (Chapter VII / Article 42): Actions taken to maintain or restore international peace and security.
The Security Council determines the existence of any threat to the peace, breach of the peace, or act of aggression (Article 39).
The Chapter VII mechanism is curtailed by the veto power granted to the P5 (China, France, UK, USA, USSR/Russia) under Article 27(3).
Just War Tradition (Related Criteria): Jus ad bellum contains four substantive criteria, including right intention, just cause, proportionality of ends, and last resort.
Jus in bello (The Law in War / IHL)
Function: Governs and seeks to moderate the actual conduct of hostilities.
Applicability: The jus in bello applies equally to all belligerents regardless of the legitimacy of their initial resort to armed force.
Underlying Principle: Proscribes the infliction of militarily ‘unnecessary suffering’.
Modern Subdivisions (International Humanitarian Law - IHL):
‘Geneva’ law: Concerned with the protection of victims of armed conflict (wounded, sick, prisoners of war, and civilians). Founded primarily on the four 1949 Geneva Conventions.
‘Hague’ law: Concerned with methods and means of warfare (controls on weapons type and usage, tactics, and conduct). Founded primarily on the 1899 and 1907 Hague Conventions.
Core Concepts:
IHL obligations are generally viewed as unilateral and non-reciprocal; compliance should be motivated by respect for the human person.
The primary function of IHL is to protect the victims of armed conflict by preventing war crimes (secondary function is punishment/prosecution).
Developments:
IHL’s applicability has broadened to include internal conflict and efforts to address terrorist threats
The establishment of the International Criminal Court (ICC) in 2002 represents a significant step in favour of prioritizing ‘justice’ (prosecution).