Law As a Process

It is often argued that because international law is based primarily on the consent of states, it is ineffective. Realists will argue that governments make decisions in the international arena that are based on political and economic incentives or pressures, and will only pay heed to their obligations under international law when it serves national interest.

This view, however, is misconceived. The fact that international law is not always complied with or may not be enforceable in certain situations does not diminish its validity or effectiveness. In addition, international legal obligations do play an important part in the governmental decision making process and have done so for thousands of years.

International law arguably plays a dual role in international relations. First, in its more recognizable guise, it codifies and systematizes required behaviours of states in their relations with each other. Second, the development of international law, the creation of international institutions, and the implementation of legal mechanisms all have a normative impact on the global political climate. These developments, institutions, and mechanisms help to limit or broaden the range of politically acceptable actions. The consequent changes in political decision making can in turn help to increase the effectiveness of a particular aspect of the law as more and more governments begin to act as if they were bound by such a rule. This process may not go so far as to develop customary law but will still serve to strengthen and validate a law.

Thus, international law should be seen not as a static but as a dynamic entity — as part of a wider normative process rather than as a autonomous regime. This notion was clearly recognized by Judge Weeramantry in his dissenting opinion in the July 8, 1996 advisory opinion of the International Court of Justice (ICJ), The Legality of the Threat or Use of Nuclear Weapons. Referring the Court’s advisory opinion on apartheid, Judge Weeramantry stated:

The Court’s decision on the illegality of the apartheid regime had little prospect of compliance by the offending government, but helped to create the climate of opinion which dismantled the structure of apartheid. Had the Court thought in terms of the futility of its decree, the end of apartheid may well have been long delayed, if it could have been achieved at all. The clarification of the law is an end in itself, and not merely a means to an end. When the law is clear, there is a greater chance of compliance than when it is shrouded in obscurity.

Thus, the Court’s decision in the apartheid case was effective as part of a greater normative process. By clarifying the law on apartheid it helped to clarify both a legal and moral framework against which governments could measure actions and political decisions on the issue.

In a similar way, the 1996 advisory opinion has been effective as a normative benchmark in the political arena with respect to the issue of nuclear disarmament. In that case, the Court held that, based on an examination of the law, the "use of nuclear weapons would be generally contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law" and that any use of a weapon must comply with the international humanitarian law. Yet the Court was unable to "conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence in which the very survival of a State would be at stake." While the 1996 advisory opinion was not as definitive or as clear as many would have liked, the end result was that the law relating to nuclear weapons was clarified to a much greater degree than had previously been the case.

The recent developments in the regime of international law relating to nuclear weapons such as the 1995 indefinite extension of the Treaty for the Non-Proliferation of Nuclear Weapons (NPT), the 1996 advisory opinion, the negotiation and conclusion of a Comprehensive Test Ban Treaty, and the functioning of the NPT review process, have all influenced the political decision making process relating to nuclear disarmament. Some of the effects of these developments and mechanisms are evident in the agreements, compromises and the language of the final document of the 2000 NPT Review.

The treaty making process itself can also be instrumental in the development of norms. The discussion, negotiation, and drafting that precede the conclusion of a treaty can help to influence political decision making on a particular issue long before that treaty becomes law. On this view, the Model Nuclear Weapons Convention (NWC) can serve a dual purpose as both as a means to influence political decision making with respect to further nuclear disarmament and as the basis for negotiations on an international convention prohibiting nuclear weapons and providing for their verified elimination. The former role of the NWC may be its greatest contribution to nuclear abolition. If used as a tool to explore the critical legal, political, and technical issues of complete nuclear disarmament at various levels of diplomatic discussion, it may help create the political climate necessary for a universal convention banning nuclear weapons to be legally effective.

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