The relation between politics and international law, when it comes to influence or determine a state’s decision, has always been a controversial topic. The aim of this article is to talk about the nature of this relation and the changes that currently are taking place. State decisions have always been determined by national interests, even if, sometimes, abstract concepts like peace or equality were invoked. Internal decisions can be justified by the national legislation or the legitimacy of the deciding institution or individuals.
When we talk about external decision, things get a little more complicated. As explained before, every state will try to satisfy its own interests when making a decision. One state’s decision can go against another and that can lead to a conflict. In order to prevent that, states are using diplomacy in order to manage international relations and to support their decision. If we talk about the image and legitimacy that a state wants to show to the international community or about the standards that the state wants to respect, then state decisions must be well justified and adequate. Nowadays, this is where International Law usually sets in. One of the main objectives of International Law is to ‘mediate’ and solve the disputes between the states by creating an applicable set of rules (or sometimes simply recognising customary ones). If a state decision goes against the International Law, then that state can expect a reaction from the international community and that can be very disruptive for it. In order for one state to successfully reach its goals, it must justify their realpolitik (politics based on power and practical factors) decisions using International Law. If they do not, they will risk a reaction from the international community of labeling their decisions as being illegal and as constituting a breach of international law.
The term ‘international law’ was first used by Jeremy Bentham in 1780 in his ‘Introduction to the Principles of Morals and Legislation’. Since about 1840, in the English and Romance languages it has replaced the older terminology ‘law of nations’ or ‘droit de gens’ which can be traced back to the Roman concept of ius gentium (law of nations), as it is observed by Malanczuk (1997). Malanczuk states in his book Akehurst’s ‘Modern Introduction To International Law’: ‘the actual role and capability of international law in governing the relations between states must not be exaggerated, in view of the decisive significance of military, economic, political and ideological factors of power. In fact, the role of international law in international relations has always been limited, but it is rarely insignificant. Its function in structuring the international system has been enhanced because of increasing global interdependence and the self-interest of states in regulating their intercourse rationally on the basis of reciprocity. Therefore, disputes between states are usually accompanied by—in a given case naturally often conflicting—references to international law.’ Unlike municipal law, there were no sanctions linked to the breach of international law. This has changed recently and we can see that states applied bilateral sanctions that were linked to the breach of international law (e.g. the sanctions applied to Russia). Therefore, the importance of international law is enhancing.
The sources of international law are vast starting with treaties, customs, principles of law, judicial decisions and finishing with soft law, equity and acts of international organisations. According to the hierarchy of the sources preemptory norms are the most important and mandatory. Article 53 of the Vienna Convention on the Law of Treaties, 1969 states: ‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. It must find acceptance and recognition by the international community at large and cannot be imposed upon a significant minority of states’. Thus, an overwhelming majority of states is required, cutting across cultural and ideological differences. At present very few rules pass this test (Malanczuk, 1997).
What happens when international law would not justify a state’s decision? We rely on interpretation and maybe in some cases one interpretation can justify the action. Context can give one norm a certain value and meaning, whereas the object and purpose of one norm if interpreted with good faith can lead you towards another result. The practice of states is very important in this aspect, as well, because it can bring the balance to one interpretation or another. The truth is that states interpret and apply international law in concordance to their interests and needs. Kosovo is a good example where a set of states do not recognize it as a new state in order to not encourage self-determination in their own countries, considering it as a dangerous precedent. In this case some of the states justify their decision by stating that Kosovo government is not effective and that it cannot bring stability to their people and region. However, South Sudan is recognised by the international community even though their government is arguably ineffective to the point of not existing. Other states say that Kosovo was created illegal, because if there is no oppression, then there is no self-determination. They continue by saying that after the reaction of UN, the problem was solved and thus Kosovo secession was not legal.
The context in which self-determination was first established as a principle in international law is important, as well. Nowadays, there are limited situations in which self- determination would be accepted. Even though it sounds simple, a lot of disputes in the international community are centered on this principle and even more are to come. At the beginning, self-determination was established so countries that in the past were colonies could freely become independent and could choose their international status with no external interference. In 1941 Allies of World War II signed the Atlantic Charter and accepted the principle of self-determination. In January, 1942 twenty-six states signed the Declaration by United Nations, which accepted those principles. The ratification of the United Nations Charter in 1945 at the end of World War II placed the right of self-determination into the framework of international law and diplomacy. Later on, this right was recognised to cohesive national groups that would be denied the so called internal self- determination in the countries they would reside. However, with this new application another problem arose.
Sometimes, with interpretation, states reached different results, because of the vague terms that were used when the norms were created. When we talk about self-determination, there was great ordeal to try to determine exactly what a ‘cohesive national group’ means. Do we lay weight on them having the same language, or religion, or background? Even today the specialists have not reach a consensus, even if even the Venice Commission tried to shed some light on the matter. Regardless of all the controversy, Kosovo is recognized today by a number of countries as an independent country. Serbia, on the other hand, still considers them as its own autonomous province. For example, one reason that burdens the possibility for Spain to recognize Kosovo is the increasing demands for an independence referendum in Spain’s province of Catalonia. In the end, it is still a problem of interpretation.
What happened in Georgia is another good example. Georgia was accused by Russia that said that the Georgian government launched aggressive operations against South Ossetia. On August 8, 2008, Russia sent land, air and sea troops in order to bring back peace to the region. They called their action as being a ‘peace enforcement’ operation. The international community said that Russia’s actions were not legal, but they could not do more as Russia invoked precedent. They said that their operation is similar to the operation that the U.S. conducted in Afghanistan. Another argument that they used was that their intervention was caused by their duty to defend their co-nationals. Russia’s actions were controversial, but according to them, they had legal basis.
I think that as international law gains more relevance, the international community would benefit from more stability. International law holds in high regard peaceful conflict solving and one of its basic principles is the equality of all states. Even if states are still far away from taking decision based only on international law, my opinion is that their recent behavior should give us hope.
In conclusion, international law is becoming significant to the states when they make their international decisions, or at least when it comes to justify them in front of the international community. National interests govern the dynamics of international relations, but globalization and the importance of the new international actors (international organisations, non-governmental organisations) made the states thorough regarding their image and status on the international scene. If one state breaks international law, the other states are ready to sanction it, and, because of the dependency that we see today between countries, it will affect that country greatly.