International Law and why it fails

Introduction

International law is a unique creature of law in that it exists both as custom and treaty. An example of custom in the realm of maritime law is the rule that federal warships continue to belong to their country of origin unless that country expressly abandons it. As such, federal warships are not subject to international maritime laws of salvage. In the arena of outer space, customary law has also found its place as well. Almost a decade before the Outer Space Treaty was proffered, the former Soviet Union made history with the launch of Sputnik 1, but aside from its historical and scientific achievements, the placement of the world's first artificial satellite established the customary norm of free passage in space even when that passage transits over the territory of sovereign nations.

The second leg of international law is treaty. Treaties can bind a nation in several different ways, with ratification being the most well known. The act of ratification signifies a nation's agreement to be legally bound by the terms of a particular treaty. In the United States, ratification of an international treaty requires Senate approval. Once ratified, it has the same legal force as a federal statute promulgated by Congress, and its legal effect can only be negated by withdrawing from a treaty, Congress promulgating a statute to counteract a treaty, or a determination by the judicial branch that a treaty is unconstitutional.

Aside from ratification, nations can give weight to treaties through the acts of acceding and signature. When a nation accedes to a treaty it indicates that it agrees to be legally bound by the terms of a particular treaty, thus having the same legal effect as ratification; however, it is not preceded by an act of signature. Conversely, the act of a nation signing a treaty indicates its willingness to give its preliminary endorsement of a treaty but does not legally bind a nation. The advantage of signature over acceding is that it demonstrates a nation's intention to further examine a treaty domestically and consider it for ratification while at the same time making no commitment to ratify it.

Discussion

International Law and why it fails

Following the end of World War II, the victorious wartime allies began to negotiate a multilateral agreement to govern international trade rules. The trade negotiations lasted from 1946 to 1948 and culminated in the drafting of the International Trade Organization (ITO) Charter - a multilateral agreement on the trade in goods. The ITO was to have a sophisticated organizational structure that included submitting all trade disputes to the United Nation's International Court of Justice. The ITO, however, failed to come into existence, because it failed to gain sufficient political support in the United States Senate.

Once it became clear that the Senate would not ratify the agreement, other governments had little interest in bringing the treaty into force. The failure of the ITO effectively eliminated the prospect of a formal dispute settlement system in international trade ...