"Almost all nations observe almost all principles of international law and almost all their obligations almost all of the time": Discuss

Résumé du document

"Almost all nations observe almost all principles of international law and almost all their obligations almost all of the time". This is the statement made by Louis Henkin, a prominent international lawyer and an influential scholar in the field of the international law, in his book entitled How Nations Behave (1979). Nations, or instead states, which is a more juridical term, are considered the main actors on the international scene. States are actually subjected to treaties, laws, and international laws and regulations. Generally speaking, the international law is defined by McKeever as one that "consists of rules and principles of general application dealing with the conduct of states and of intergovernmental organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical".

Extraits

[...] Reprisal can come from international institutions but also from the other states. Indeed, if international institutions sometimes lack means of pressure, the behaviour of other states can strongly influence a state to obey the rules. Break a law could damage or even break the relationships between the state which breaks it and one or several other states, and with the growing economic interdependence we currently know, a state can less and less take this kind of risk. We could add that treaties or agreements are the reflection of the balance of power. [...]

[...] States usually need a perspective of important countervailing gain to break one of thier obligations. They will disregard law only if the advantages of violation outweigh the advantages of observance. But states which violate treaties either deny that they have done so, or else defend the violation by argument designed to show that it was legally or morally justified. Violation of treaties, even when frequently practised, is felt to be something exceptional requiring special justification. The general sense of obligation remains (Carr). [...]

[...] If states are the main subjects of the international law, they are also its main creator. Obligations which states have to respect are these they explicitly and voluntarily accepted in signing them. Nowadays, we tend to think that international law is effectively not respected and that states have no qualms flouting it, thinking that the institutions which could enforce it are not efficient and threatening enough. Some could think that the Henkin's statement is ironic, but it is not. The author is totally serious. [...]

[...] realists, international anarchy fosters competition and conflict among states and inhibits their willingness to cooperate even when they share common interests” (Grieco Joseph Anarchy and the Limit of Cooperation in International Organization, 43:3, p. 485). According to them, states place their own interests above the respect of external laws. Realists say that there is no natural tendency for countries to ally with one another, each state pursues its own selfish interest, trying to maximize its relative power. In this context, a state will agree to take part in an international institution only if it profits it relatively more than others. Then, how do realists explain cooperation? [...]

[...] Nations have common interest in keeping international law orderly. It is rare that a violation of a law is advantageous. According to Henkin: "All nations already broke law and will certainly do it again". But according to him, the proportion of obligations which are followed is larger than those which are not. In fact we know - although effective sanctions are lacking - that nations generally observe law and obligations (Louis Henkin, How Nations Behave, USA, 1979) "The fact is that law observance, not violation, is the common way of nations" (Henkin). [...]