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WEAKNESSES OF INTERNATIONAL LAW

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RUNNING HEAD: WEAKNESSES OF INTERNATIONAL LAW

Weaknesses of International Law

AHMAD IBRAHIM BIN MOHD RADZI (1817165)

LAW 3912: PUBLIC INTERNATIONAL LAW

Professor Abdul Ghafur Hamid @ Khin Maung Sein

6th November 2020

WEAKNESSES OF INTERNATIONAL LAW

 
Contents

1. Introduction ……………………………………………………………………………… 2

2. Lack of Legislature ……………..………....………….………………...……………… 3

3. Lack of Courts With Compulsory Jurisdiction ……...………………………………… 5

4. Lack of Effective Enforcement Machinery …………………………………………… 7

5. Conclusion ……………………. ………....………….………………...…………….. 10

6. Analysis …..……………………. ………....………….………………...……………. 11

7. Bibliography ……………………....………....………….………………...…………. 13

1
WEAKNESSES OF INTERNATIONAL LAW

1) INTRODUCTION

Hugo Grotius, one of the prominent jurist in international law once said that ​“A man

cannot govern a nation if he cannot govern a city; he cannot govern a city if he cannot govern a

family; he cannot govern a family unless he can govern himself; and he cannot govern himself

unless his passions are subject to reason”.

This quote is also applied in international governance, one cannot simply govern the

international community if he cannot govern his own nation. That is why nowadays we can see

clearly that a lot of nations have violated international law especially those who are “so called”

the enforcers of the law in which they pridely call themselves as the Security Council of the

United Nations.1 This is because the leaders of the permanent members of the Security Council

themselves are not qualified and efficient enough to become the leaders in their own country and

because they fail in managing their citizens, so they fail in governing the international

community. This can be seen throughout a lot of major events which involves a lot of disputes

and war emerged between nations and interference from the five permanent members of the

United Nations, and the latest one is the Nagorno-Karabakh conflict ​between two states, Armenia

and Azerbaijan.2

Nevertheless, despite the outraging war and disputes emerged in the international

community, as any other law, international law which governs the international community also

has ​lacuna i​ n terms of its ineffectiveness compared to the national legal system and its

enforcement. Thus, this paper would discuss the weaknesses of international law and in the

conclusion, it would summarize its greatest weakness.

1
Include five permanent members such as the USA, Russia, China, United Kingdom and France.
2
Bensadoun, Emerald. 2020. Armenian MP says conflict with Azerbaijan could become a ‘global
catastrophe.’ Here’s why, October Saturday, 2020.
2
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2) LACK OF LEGISLATURE

It is an undeniable presumption of fact that every law existing in this world has ​lacuna ​or

loopholes in their law. International law also cannot escape from the fact that it has its very own

weaknesses in which the weaknesses of the law are totally different from the national legal

system.

The weaknesses of the international law shall be focused on three components which the

first one is, the international law is lack of legislature. In the international legal system, there is

no law-making authority that can make law for the whole international community in accordance

with their new needs. Even though, as delineated in the Charter of the United Nations, the

function of the General Assembly of the United Nations is to discuss, debate, and make

recommendations on subjects pertaining to international peace and security, including

development, disarmament, human rights, international law, and the peaceful arbitration of

disputes between nations,3 the General Assembly is not tantamount and equivalent to the world

legislature or parliament. It has no legislative power and its decisions are not binding on states.

According to Celine Van Den Rul in her article,4 she was highlighting the fact that General

Assembly resolutions are merely recommendations and shall not be considered as laws. Thus, the

resolutions are not binding on member states. The General Assembly resolutions merely reflect a

symbolic gesture by the international community to stigmatize and formally condemn the

practice of states. This can be seen through Resolution 1761 condemning Apartheid in South

Africa whereby it shows us that the resolution did not stop the South African government’s

discriminatory policy and Nelson Mandela’s life-long imprisonment sentence two years later.

3
Chapter IV, of the Charter of United Nations.
4
Den Rule, Celine V. 2016. ​“Why Have Resolutions of the UN General Assembly If They Are Not Legally
Binding?”​ (June), 1-5.
3
WEAKNESSES OF INTERNATIONAL LAW

Next, Resolution 217 on the Universal Declaration of Human Rights also shows that the

declaration is not legally binding, however its influence on national constitutions, treaties or

international laws since 1948 cannot be denied as it introduces the concept of human dignity as

the central concept from which all human rights are derived.5

In a nutshell, the General Assembly of the United Nations is not equivalent to the world

legislature or parliament. It has no legislative power and therefore its decisions or resolutions are

recommended in nature and not binding on states since it merely reflects a symbolic gesture by

the international community to stigmatize and formally condemn the practice of states who

violated international law. Thus, the international law is lack of legislature.

5
First line of preamble, Universal Declaration of Human Rights,1948.

4
WEAKNESSES OF INTERNATIONAL LAW

3) LACK OF COURTS WITH COMPULSORY JURISDICTION

Next, moving forward with the second point which is, it is also lack of courts with

compulsory jurisdiction and this can be seen through how the International Court of Justice (ICJ)

functions. ICJ is not that more powerful than the national legal system as their competence is

limited because resort to them is not compulsory. Its jurisdiction is not compulsory as there is no

compulsory jurisdiction as to the general rule. The ICJ can only have jurisdiction when both

parties of the dispute consented and submitted their case to ICJ then only ICJ can exercise its

jurisdiction.

This can be seen through Article 36(1) of the Statute of ICJ,6 which explains regarding its

voluntary jurisdiction. ​Article 36(1) of the Statute provides that the jurisdiction of the Court

comprises all cases which the parties refer to it. Such cases normally come before the Court by

notification to the Registry of an agreement known as a special agreement, concluded by the

parties specially for this purpose.

One example of the case to illustrate how this provision functions is the case of ​Malaysia v

Singapore​. This case was generally a dispute between Malaysia and Singapore as both of them

claimed that they have sovereignty over 3 islands which were ​Pulau Batu Puteh or also known as

Pedra Branca, Middle Rocks and South Ledge​. Due to emerging disputes between these both

countries, ​the foreign ministers of both countries ​later on ​signed on the special agreement on 6

February 2003 as being stated under Article 36(1) of the Statute of ICJ and formally notified the

ICJ on 24 July 2003. The ICJ was requested to determine the sovereignty over these three

islands, whether it belonged to Malaysia or Singapore. Thus, ICJ has the jurisdiction to hear and

6
International Court of Justice. 1965.​ “Statute of The International Court of Justice.”
5
WEAKNESSES OF INTERNATIONAL LAW

decide regarding the dispute by both countries, Malaysia and Singapore since these both

countries gave their consents for this case to be brought to ICJ.7

In a nutshell, it can be concluded that ICJ jurisdiction is not compulsory ​as there is no

compulsory jurisdiction as to the general rule since the ICJ can only have jurisdiction when both

parties of the dispute gave their consents and submitted their case to ICJ, therefore it can be seen

that international law is lack of courts with compulsory jurisdiction.

7
​Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, Malaysia v
Singapore​, Judgment, Merits, ICJ GL No 130, ICGJ 9 (ICJ 2008), 23rd May 2008, International Court of
Justice [ICJ].
6
WEAKNESSES OF INTERNATIONAL LAW

4) LACK OF EFFECTIVE ENFORCEMENT MACHINERY

Lastly, international law is also lack of effective enforcement machinery. Compared to the

national legal system, international law enforcement is weaker. Because in the national legal

system enforcement, the government is backed by sovereignty, and that is why the enforcement

is also backed by the sovereign political authorities such as the police force, army and need not to

mention that the enforcement power is also entrusted by the federal constitution. So a new

question arises, how do the international laws being enforced ?

Apparently, the Security Council of the United Nations is the body in charge in regards

with the enforcement of international law. Their responsibility are to maintain international peace

and security, as provided for in Article 24​ ​of the Charter of the United Nations,8 whereby it

clearly states that; “​in order to ensure prompt and effective action by the United Nations, its

Members confer on the Security Council primary responsibility for the maintenance of

international peace and security, and agree that in carrying out its duties under this

responsibility the Security Council acts on their behalf​”.

In this regard, the Security Council has the power to investigate situations to determine the

existence of a threat to international security, and the right to decide on appropriate measures to

deal with such a threat that can range from various economic sanctions to a full-scale military

action9. The Security Council consists of fifteen members. Five of these members, namely the

United States (US), the United Kingdom (UK), France, China, and the Russian Federation are

known as the permanent members which enjoy the right to block decisions of the Council in

what is referred to as the ‘veto’ right. The remaining members, who get one vote each in the

8
Chapter V of The Charter of United Nations pertaining with the functions of the Security Council.
9
Brian Cox, ​“United Nations Security Council Reform: Collected Proposals and Possible Consequences”,
South Carolina Journal of International Law and Business: Vol. 6: Iss. 1, Article 4, at 91.
7
WEAKNESSES OF INTERNATIONAL LAW

Council, are elected based on specific geographical distribution for a period of two year. Any

action taken of procedural nature by the Council must receive nine votes. However, substantive

matters, which constitute the bulk of the Security Council’s work, must achieve the nine-vote

majority without the veto of any of the permanent members.10

However, despite the fact that there is already explicit provision stating that the duties of

the Security Council is to maintain peace among the international community, war still emerges

in every part of the world. So why is this still happening? The notion behind granting the

permanent five members the veto power that such power was going to enable them to maintain

world’s peace and better serve the goals and principles of the United Nations. However, the veto

practices of the permanent members have increasingly left the impression among the rest of the

United Nations members that the veto power has been exercised in a selfish attitude that is based

primarily on the idea of protecting the individual national interests of the permanent members

and their allies.

This can be seen through several events, in 1986 for instance the UK and the US blocked

draft resolutions that condemned South African attacks against Angola, Zambia, Botswana and

Zimbabwe.11 In 1987 and 1988, the same permanent members moreover vetoed the imposition of

economic sanctions against the apartheid regime, despite persistent human rights violations.12

The Palestinian situation on the other hand accounts for nearly half of all vetoes exercised by the

United States.13This episode of event of abuse of power continuously being used in the year of

10
Id,at 92.
11
Wouters, Jan, and Tom Ruys. 2005.​ “Security Council reform: a new veto for a new century?” Egmont
Paper 9, no. Royal Institute For International Relations (Irri-kiib) (August):​ 15.
12
Ibid.
13
Khalil, Gregory, ‘Just Say no to vetoes’, New York Times, 19 July 2004.
8
WEAKNESSES OF INTERNATIONAL LAW

2002, when the US blocked a resolution condemning the killing by Israeli forces of several UN

employees and the destruction of the World Food Programme Warehouse.14

Thus, it can be concluded that the international law is lack of effective enforcement

machinery due to the enforcers of the law specifically the five permanent members which their

task are supposedly to maintain and safeguard peace in international community, have abuse the

power given to them by using veto power arbitrarily ​without restraint in the use of to destroy and

create conflict worldwidely. Their abuse of power indirectly contributes to the lack of effective

enforcement in international law.

14
United Nations. 2002. ​Security Council Fails To Adopt Draft Resolution Condemning Recent Israeli
Actions. Meetings Coverage and Press Releases.​
9
WEAKNESSES OF INTERNATIONAL LAW

5) CONCLUSION

In a nutshell, as has been discussed above, generally there are three weaknesses of

international law which among others are lack of legislature due to there is no such thing as

world legislature to enact the international law and lack of courts with compulsory jurisdiction.

This can be seen through in order for a case to be brought to the ICJ, there must be consents from

both parties which are the states in dispute and lastly, lack of effective machinery enforcement as

there are a lot of abuse of power made by the five permanent members in regards with veto

power given to them.

However among these three, the greatest weakness of international law lies in its lack of

effective machinery enforcement as the veto powers conferred to the five permanent members

would give a conclusion that these five permanent members are above the international law and

therefore they are immune. That is why war, disputes and conflicts are still in existence in every

part of the world since those who are being given power to enforce and uphold justice and peace

among the international community are the ones who violate it.

Thus, the greatest weakness of the international law lies in its ineffective machinery

enforcement.

10
WEAKNESSES OF INTERNATIONAL LAW

6) ANALYSIS

This paper would opine that in regards to the legislature structure of the United Nations, it

is fairly good enough, as every country in this world has the right to vote for the resolutions made

by the General Assembly as each and every of them is backed with their own sovereignty.

Therefore, there is no need for the establishment of a world legislature since there is no such

thing as the world government. Thus, every country is living by their own sovereignty in making

laws.

Next, the judiciary system of the United Nations, specifically the ICJ, must be modified by

enhancing their jurisdiction in terms of compulsory jurisdiction under Article 36(2) of the Statute

of ICJ by making it compulsory for all of the permanent members of the Security Council to be

under their jurisdiction. Currently, there is only one permanent member of the Security Council

that recognizes the jurisdiction of the ICJ as compulsory which is the United Kingdom.15 This is

to ensure the five permanent members of the Security Council obey the international law. The

effectiveness of the compulsory jurisdiction of the ICJ can be seen through the case of ​Nicaragua

v USA.​ 16

The fact of the case was, eventually USA had given consent already by means of declaring

to accept compulsory jurisdiction of ICJ under article 36(2) of the Statute of ICJ. However their

consent did not extend to multilateral treaties. This was known as multilateral treaty reservation.

When the ICJ wanted to exercise their jurisdiction, USA argued that the court did not have the

jurisdiction to decide on that case since Nicaragua relies in its application on four multilateral

15
International Court of Justice. 2017. ​“Declarations recognizing the jurisdiction of the Court as
compulsory.”
16
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United
States of America);​ Merits, International Court of Justice (ICJ), 27 June 1986,
11
WEAKNESSES OF INTERNATIONAL LAW

treaties.17 The Court concluded that the USA, despite its objections, was subject to the Court's

jurisdiction on the basis that the United States was in breach of its obligations under customary

international law not to use force against another state.18

Even though, at the end of the judgement, USA did not comply with the decision made by

the ICJ as they were capable to block any enforcement mechanism attempted by Nicaragua, the

compulsory jurisdiction as being exercised by the ICJ proves that it is effective on two basis

points. First, the fact that it is being able to create negative stigma among the international

community towards that particular country who has violated the international law. The second

one is, the effectiveness of the compulsory jurisdiction is very powerful to the extent that even a

powerful nation such as the USA that is capable of exercising its veto power to withdraw its

consent to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to

binding international adjudication (1946-1985).19 Thus, it shows that the compulsory jurisdiction

of the ICJ under Article 36(2) of the Statute of ICJ is very effective in ensuring that every nation,

especially the five permanent members of the Security Council to act in accordance with the

international law and therefore peace can be achieved among the international community.

Lastly, in regards to the enforcement of international law, the veto power conferred to the

five permanent members of the Security Council also need to be modified and if not, removed

completely. The veto should only be valid if two veto powers together with three non-veto

members agree to apply it, to ensure less frequent abuses. This is to ensure that the United

Nations to return to its original purpose of ensuring world peace.

17
“​Case Concerning Military And Paramilitary Activities In And Against Nicaragua (Nicaragua V. United
States Of America) Jurisdiction Of The Court And Admissibility Of The Application.”​ 1984. (November), 1.
18
Ibid.
19
Mulligan, Stephen P. 2018.​ “The United States and the “World Court.””​ (October), 1-2.
12
WEAKNESSES OF INTERNATIONAL LAW

7) BIBLIOGRAPHY

Bensadoun, Emerald. 2020. ​Armenian MP says conflict with Azerbaijan could become a ‘global

catastrophe.’ Here’s why,​ October Saturday, 2020.

https://globalnews.ca/news/7409503/armenia-azerbaijan-conflict-mp/​.

“Case Concerning Military And Paramilitary Activities In And Against Nicaragua (Nicaragua V.

United States Of America) Jurisdiction Of The Court And Admissibility Of The

Application.”​ 1984. (November), 1.

http://www.valpo.edu/law/wp-content/uploads/2013/08/Nicaragua-v-US-Reservations.doc

x​.

Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v.

United States of America);​ Merits, International Court of Justice (ICJ), 27 June 1986,

https://www.refworld.org/cases,ICJ,4023a44d2.html

Cox, Brian. n.d. ​“United Nations Security Council Reform: Collected Proposals and Possible

Consequences.”​ ​South Carolina Journal of International Law and Business​ 6 (1): 91-92.

Den Rule, Celine V. 2016. ​“Why Have Resolutions of the UN General Assembly If They Are Not

Legally Binding?”​ (June), 1-5.

https://www.e-ir.info/2016/06/16/why-have-resolutions-of-the-un-general-assembly-if-the

y-are-not-legally-binding/​.

International Court of Justice. 1965. ​“Statute of The International Court of Justice.”

https://www.icj-cij.org/en/statute​.

International Court of Justice. 2017. ​“Declarations recognizing the jurisdiction of the Court as

compulsory.”

​https://www.icj-cij.org/en/declarations/gb​.

Khalil, Gregory. 2004. ​Just Say no to vetoes,​ July 19, 2004.

https://www.nytimes.com/2004/07/19/opinion/just-say-no-to-vetoes.html​.

13
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View publication stats

Mulligan, Stephen P. 2018. ​“The United States and the “World Court.””​ (October), 1-2.

https://fas.org/sgp/crs/row/LSB10206.pdf​.

Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, Malaysia v

Singapore,​ Judgment, Merits, ICJ GL No 130, ICGJ 9 (ICJ 2008), 23rd May 2008,

International Court of Justice [ICJ]

https://www.icj-cij.org/en/case/130

United Nations. 1945. ​“Charter of United Nations.”

https://www.un.org/en/sections/un-charter/un-charter-full-text/​.

United Nations. 1948. ​“Universal Declaration of Human Rights.”

https://www.un.org/en/universal-declaration-human-rights/​.

United Nations. 2002. Security Council Fails To Adopt Draft Resolution Condemning Recent

Israeli Actions. Meetings Coverage and Press Releases

https://www.un.org/press/en/2002/SC7620.doc.htm​.

Wouters, Jan, and Tom Ruys. 2005. “​Security Council reform: a new veto for a new century?”

Egmont Paper 9, no. Royal Institute For International Relations (Irri-kiib) (August):​ 15.

http://aei.pitt.edu/8980/1/ep9.pdf​.

14