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International law is unenforceable

Rachel A. Bahn Presidential Management Fellow at USAID 2008 "Reputational Risk and Enforceability in International Law" SAIS Review Volume 28, Number 2, Summer/Fall, Project Muse
The lack of an automatic enforcement mechanism represents the greatest challenge to the development of international organizations and the body of international public law that they represent. Evidence of the impact of this non-enforceability is found in all areas of the international realmeconomic, humanitarian, and political-strategic. However, the nature of political-strategic affairs
heightens the impact of possible damage to national reputation and sets this branch of international law and organization apart. The World Trade Organization (WTO) has no absolute means through which to ensure compliance with its standards, even when its Dispute Settlement Panel determines that a member state has violated the WTOs international liability and must alter its behavior or face retaliation from the harmed state. More to the point, there is no absolute means to ensure compliance with WTO standards. One need only look to the gambling case brought against the United States by the Caribbean nation of Antigua and Barbuda in order to verify the ineffectiveness of WTO panel decisions. In 2003, Antigua and Barbuda brought a legitimate complaint to the WTO that the United States had improperly restricted the sale of online gaming and betting services from the island nation. Nevertheless, even after the complaint was raised, the United States, another WTO member state, refused to comply with WTO standards, due in part to domestic political and ethical concerns about gambling.1 Because Antigua and Barbuda has little leverage against the United States, its WTO-sanctioned countermeasures (to the tune of $221 million)have been ineffective, permitting the behemoth to continue barring the sale of gambling services across its national borders.2 Subsequent to the WTO ruling, the United States retroactively altered its commitment to the General Agreement on Trade in Serviceseffectively continuing to violate its previously agreed international economic

obligations.3 Humanitarian bodies have proven no more adept at ensuring compliance with international norms and standards. The authority and eventual judgment of human rights tribunals may be flaunted by states unwilling to deliver the politically powerful to the judgment of the international community. For years, Serbia refused to deliver a number of suspected Serbian war criminals to the
International Criminal Tribunal for the former Yugoslavia [End Page 101] so that their actions could be considered and judged on the international stage.4 (Included among these war criminals was Ratko Mladic, the Bosnian Serb general who was responsible for the massacre of nearly 8,000 Muslim men and boys at Srebrenica in 1995, and Radovan Karadzic, the former Serbian president.5 ) To date, Serbia has refused to directly deliver either Mladic or Karadzic. Both men remain fugitives from international law.6 The United Nations and the body of international humanitarian and

political law that it represents are similarly at the mercy of member states that choose to enforce or disregard their agreed-upon commitments and obligations. This is most evident in the case of the Security Council, where a single member may utilize its veto block action on the part of the entire UN. Without an international police force to ensure compliance with the will of the majority, absolute compliance with international norms remains a hope rather than a certainty.

International law is too weak to prevent war and environmental desturction


Jack L. Goldsmith- law professor at Harvard University and Eric A. Posner is the Kirkland and Ellis Professor of Law at the University of Chicago, April 2005, American Enterprise Institute, The Limits of International Law, online at http://www.angelfire.com/jazz/sugimoto/law.pdf We can conveniently use 9/11 as the date on which this optimism ended, but there were undercurrents of pessimism even earlier. The UN played a relatively minor role in bringing the conflicts in the Balkans to the end. Members of the Security Council could not agree on the use of force in Kosovo, and the NATO intervention was thus a violation of international law. The various international criminal tribunals turned out to be cumbersome and expensive institutions, they brought relatively few people to justice, and they stirred up the ethnic tensions they were meant to quell. Aggressive international trade integration produced a violent backlash in many countries. Treaty mechanisms seemed too weak to solve the most serious global problems, including environmental degradation and human rights abuses.

Citing International Law does not set precedent


Adam Liptak-the Supreme Court correspondent of The New York Times, September 18, 20 08, U.S. Court Is Now Guiding Fewer Nations New York Times, online at http://www.nytimes.com/2008/09/18/us/18legal.html?_r=3&hp=&adxnnlx=12217537178pdanTsDalyAfCQgzjrVvQ&pagewanted=print Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent. Chief Justice John Marshall, sitting as a circuit court judge, discussed the question in 1811. It has been said that the decisions of British courts, made since the Revolution, are not authority in this country, he said. I admit it but they are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide. Indeed, American judges cite all sorts of things in their decisions law review articles, song lyrics, television programs. State supreme courts cite decisions from other states, though a decision from Wisconsin is no more binding in Oregon than is one from Italy. Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge, Justice Ruth Bader Ginsburg said in a 2006 address to the Constitutional Court of South Africa. But they can add to the story of knowledge relevant to the solution of trying questions. But Professor Fried said the area was a minefield. Courts have been citing foreign law forever, but sparingly, for very good reason, he said. It is an invitation to bolster conclusions reached on other grounds. It leads to more impressionistic, undisciplined adjudication.

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