The Effectiveness of International Law in an Anarchic International System
Article by: Francesco Arreaga
Two principal concepts of international relations are sovereignty and anarchy. In international relations theory, anarchy is defined as the lack of a world government. In other words, our international system does not have a global sovereign that manages the world.
Sovereignty can be traced back to the Peace of Westphalia, which ended the Thirty Years’ War in 1648. The basic meaning of sovereignty is that all nations have a right to govern themselves without the interference of external forces. The Charter of the United Nations (UN) embraces the idea of sovereignty when it states that the “Organization is based on the principle of the sovereign equality of all its Members.” Sovereignty and anarchy are inextricably linked because if we accept that every nation is sovereign, then we cannot accept the establishment of a global sovereign that has the power to control what countries do.
The law is an integral part of our daily lives in the United States because it serves to structure our society. We choose not to live in a state of nature, but to instead abide by our Constitution, the policies implemented by our representatives, and the rulings made by our judiciary.
Enforcement of International Law
At the international level, there are various institutions that purport to provide some structure to our world. Such institutions include the UN, International Court of Justice, International Criminal Court, Permanent Court of Arbitration, and World Trade Organization. In order for these bodies to be effective, nations around the world must view them as legitimate institutions. Any law, regulation, treaty, or decision made by an adjudicatory body, is of no use if there is no accompanying enforcement mechanism. The enforcement of international law is an issue that exists in an anarchic international system that prioritizes the sovereignty of nations.
In 2016, the Permanent Court of Arbitration issued a ruling in the South China Sea Arbitration. The international tribunal held that China’s historic claim to the South China Sea, through its nine-dash-line, had no legal basis. Although China’s expansive claims in the South China Sea were found to be a violation of international law, China did not halt its expansionist behavior in the region. Rather, China continued militarizing the South China Sea through the creation of man-made islands.
A recent flight over the South China Sea by an American maritime patrol aircraft, captured how China’s artificial islands contained “radar domes, shelters for surface-to-air missiles and a runway long enough for fighter jets.” As China’s President Xi Jinping gains greater political power through the abolition of presidential term limits from China’s constitution, he has signaled that he will not “lose even one inch of the territory” in the South China Sea.
China’s disregard for the ruling of the Permanent Court of Arbitration illustrates how international institutions, and international law in general, have not been accepted as legitimate mechanisms for resolving disputes in our world. International tribunals have not supplanted nation states as the arbiters of world affairs. For example, nation states have been attempting to deter China’s expansionism in the South China Sea through various military exercises.
This week, France and Australia announced that they will conduct military exercises in the South China Sea because “the South China Sea is international water.” Approximately two weeks ago, Japan used a submarine for the first time during a military drill in the South China Sea to signal its intent to “keep in check Beijing’s muscle-flexing.” On August 31, 2018, the United States conducted joint military exercises with Japan in the South China Sea to further interoperability. Finally, American military aircraft continually fly over the South China Sea as part of “U.S. Indo-Pacific Command’s Continuous Bomber Presence (CBP) operations.”
The example of China disregarding the ruling of an international tribunal is just one portrayal of how international law is subservient to the interests of sovereign nations. Public opinion in the United States about international institutions such as the UN has not been favorable. In 2018, a Gallup poll found that six in ten Americans believe that the UN “is doing a poor job.” Earlier this month, National Security Advisor John Bolton called the International Criminal Court an “illegitimate court” and threatened to ban judges from the ICC and sanction their funds in the American financial system.
In light of these circumstances, is it possible for international tribunals and institutions to ever have the legitimacy and trust that they require so that their decisions are respected? If so, would that be the end of anarchy and sovereignty in our international system? Would this be beneficial or detrimental to our world? These are all questions that we need to ask ourselves as we think about what the most effective methods are to resolve conflicts peacefully amongst nations.