Star Law Analysis
Why do States obey international law
Barrister Harun ur Rashid
The national courts apply domestic law through executive agencies but in case of international law, there is no international judicial body or authority that can apply rules of international law on a state because of its inherent sovereignty.
In simple words, international law lacks authority to apply on states. That is why jurist Holland called international law as “the vanishing point of jurisprudence”. Another jurist Austin held the view that international law was not “law” but consisted of a set of rules of conduct of moral force. What they meant was that since there was no authority to enforce international law, international law could not strictly be called “law”.
A state must accept the jurisdiction of International Court of Justice or an international tribunal before it can take up any case against it. For example in 1973 when Pakistan filed a case against India for illegal detention of its war prisoners from Bangladesh to International Court of Justice (ICJ), it could not hear the case because India objected to its jurisdiction.
Despite the above observations about international law, why do states comply with international law?
There are many reasons for it and some of them deserve mention below:
First, states obey international law because they do not want to be isolated from mainstream community in an era of global or regional organizations. The new global era recognises that there are other actors on the world stage except states. It is a complex world in which states and international organizations play their part and one is dependent on the other. International law guides their smooth operation for the benefit of ordinary people. For example WHO work with states for AIDS programme and both sides obey certain rules of operation among them.
Second, the notion of legitimacy of an action of a state is very important. Legitimacy emanates from the application of international law. For example the US-led invasion of Iraq in 2003 is declared illegal by the UN Secretary General because it contravened the Charter of the UN and the current Iraqi war is seen by all states except a few states as illegal military operation. This is why the US is bogged down in Iraq with an illegitimate war against the militants.
Third, pressure from international community compels states to comply with international law. All states wish to have the image of being responsible, credible and trust worthy and such image can only be acquired with obeying international law. If a state flouts international law, it remains isolated from other states and as a result, other states do not interact with it because they are aware that the recalcitrant state does not obey international law.
Fourth, maintenance of peace and security is of paramount importance to states and the orderly and peaceful conduct of relations with other states needs some kind of accepted norms of conduct from states. The accepted norms are the result of customs, practices, and precedents. With the passage of time, they attain clarity, precision, and the status of general application. States apply such accepted norms, known as international law.
Fifth, international cooperation among states makes compliance of international law a necessity. For example, it is possible to dial direct to almost every person in the world who has a telephone without going through a local operator. The telephone dial code for a country (880 for Bangladesh) is provided under the authority of International Telecommunication Union (ITU), based in Geneva. Both ITU and a state have to agree to comply with international law.
International law is not simply a set of rules but constitutes a method of conducting inter-states relations. The imperative character of international law is a matter of international relations. Furthermore if a state is democratic, decision-makers are likely to follow international law in inter-state relations and in human rights situations.
Finally it is the usefulness which underpins the observance of international law by states. No state can deny existence of international law and empirical evidence suggests that states try to prove the legitimacy of their actions by citing international law.
The author is former Bangladesh Ambassador to the UN, Geneva.