Analyzing and debating on the issue of the role of international law in international relations, one should consider the changing attitude of the state and nonstate actors toward the international law, and thus one can question the significance and the supremacy of the international law to international politics and international affairs as a whole. The contemporary situation in the world arena of international relations might serve as good evidence of such a suggestion, and might be helpful while discussing the issue under consideration.
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It is really hard to examine and explain the degree of the supremacy and significance of international law to the system of international relations, international politics, and, particularly such actors as states themselves, governmental and nongovernmental organizations that influence states’ policies greatly. It is impossible to deny that international law plays a political role in a certain way.
Here might be also helpful to note that power is the prime determinant of political decisions and outcomes. Thus, it is not easy to evaluate and explain the relationship between international law and power which can be defined by various actors of international relations: states, governmental and nongovernmental organizations, trans-national corporations, and even criminal or terroristic organizations.
Primarily, the international law was determined by a set of binding rules that were not subject to interests of the international politics, even those that were considered as superior powers. But nowadays the situation has changed a lot. Some international relations theorists like John Pevenhouse and Joshua Goldstein, suggest that international actors accept officially the idea of the supremacy of the international law over their countries’ national law and in every single foreign or international affair. But that’s only the upper layer of the glacier. Lawyers try to find the flaw in every single case to be able to twist and violate the law without any punishment and benefit from this. Therefore, it might be viewed that legal discourse is detected on an assumption of the term of legal objectivity.
The international law system regards law as a set of neutral, binding for every single international actor’s rules. Thus, they have to obey international law, though they might have a skeptical attitude to it. It is a known fact that international law has great power over international actors, but one can not refute the fact that some international relations actors have even greater power to ignore and violate this law.
Such a situation happens when other international actors are weaker and not able to resist the pressure of those powerful actors; therefore, the weaker ones can not defend the international law’s rules and preserve the balance of powers in the international arena. These facts again prove that the attitude of various international actors toward international law has changed a lot. The following examples may serve as a vivid representation of the disobedience to international law and its actual violation.
The Avena case started on 31 March 2004 with the United States defeat in the international law arena, illustrates the attitude of the United States of America to the imperative of the international law and its supremacy over the US law, “following an application by Mexico, the International Court of Justice (ICJ) ordered the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of Mexican nationals” (Pulkowski, 2006, p. 513). But a year later, the international law community had been surprised greatly.
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On 28 February 2005, US President George W. Bush (well known for its disobedience to the international law community) established a Memorandum for the Attorney General with the provocative title “Compliance with the Decision of the International Court of Justice in Avena”. The filling of this document shocked various international relations actors that later on vainly tried to restrain his illegal behavior. In this document, G. W. Bush declared that “the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals” (Memorandum, cited from Pulkowski, 2006, p. 514 – 515).
If regarding this case with the respect to the international relations rules and the international law obligations in the context of world arena’s affairs, one may state that here might be viewed a vivid example of the international relations theory that regards the compliance with the international law. The following conditions determine such theory which again proves that the attitude of most international relations actors toward the international law and its binding principles changed greatly: coercion acts and motives that define those acts, reputational costs, political process within the state, violation of legitimacy and morality.
The Avena case is not news in the policy of the United States. One may examine and study this particular case or any other situation similar to the former one concerning the disobedience to the international law; but, still, that is not the key issue. To be able to fix the problem of the law violation in the world arena of international relations, it is necessary to find and undertake the reason that caused the arisen situation which has been lasting for decades.
Goldstein Joshua S. and Pevenhouse Jon C. Readings In International Relations (7th Edition). New York: Pearson Longman, 2006.
Pulkowski, Dirk. Testing Compliance Theories: Towards US Obedience of International Law in the Avena Case. Leiden Journal of International Law. Vol. 19, pp. 511-554, 2006.
Whitworth Sandra, Goldstein Joshua S. and Pevenhouse Jon C.. International Relations. Canada: Thompson Wardsworth.