Ed Barton, LLM, CPA, CFA

Legal Elements in International Law

International law differs from traditional common law principles in several respects. Foremost is that international law is predominantly focused on governing the actions of sovereign states. In the United States, many of our laws are designed to govern the behavior of “persons,” including corporations and other legal “persons.”  In the international law forum, the citizens of the nations are impacted by but rarely governed directly by international law principles.

Some of the challenges in the administration of international law include the decentralized nature of the legal functions. This is due to two main factors.  First, the need to maintain the sovereignty of the nations subject to the law necessitates that the power is adequately dispersed. The concentration of power will threaten the independence of the nations subjected.  Most recently, the decision by the UK to leave the EU was driven, in part, by this issue. The second is that the nature of international law tends to lend itself to specific policy issues developed by various treaties and NGOs, which have both narrow scope and enforcement capability.

The structure lends itself to a horizontal rather than vertical span of influence, resulting in both limited effectiveness in enforcement and a sense of collective responsibility by both groups of nation-states and collective responsibility by their citizens.

A violation of international law often results in collective punishment for the citizenry, including the impacts of war, trade sanctions, taxation or reparations, and other remedies. While international law and tribunals have focused since World War II on identifying and prosecuting individuals, rather than entire nations, for violations of international law, especially violations of human rights, this approach remains the exception rather than the rule.

To maintain independence and sovereignty, states must voluntarily subject themselves to both international law and its enforcement. Generally accomplished through treaties, this also involves internalizing the treaty provisions and laws into the national laws. Integrating many aspects of the Geneva Convention into the United States Uniform Code of Military Justice is one example of this integration. Many international law conflicts arise where this integration does not exist or where it is not enforced.

For thousands of years, customs and traditions of interaction between nation-states governed their behavior and served as the basis for modern international law. Since the First World War and the advent of modern communications and transportation, the frequency and intensity of these international interactions have increased. Treaties and legal approaches have replaced the traditional use of force to govern their interactions.

This extends to the concept of reciprocity, which is inherent in most international law. Generally, a bad actor state was viewed as violating all treaty members, not just the singularly aggrieved party. The nature of these laws and agreements was to preserve human rights, self-determination, and environmental protection, in addition to free trade. Thus, a violation by a nation-state was a violation against all parties.

The challenge is that the enforcement of international law rests with the implementation of sanctions or force. Both having significant impacts upon the people of the offending state, regardless of their personal guilt or innocence. While the goal is to preserve the common good, the ability to do so is limited.

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