International law has always been conceived as a project involving sovereign and equal states, who would be forever locked in battle with each other – if not literally, then at least metaphorically. The international legal order, such as it is, was always conceptualized as a horizontal order, mostly geared towards facilitating the co-existence of states, and with scant attention for planetary unity, or even for the interests of individual human beings. International law was made by states, to regulate relations between states, and for the benefit of states. What happened within those states was long considered anathema, and nothing was supposed to exist above those states.

INTRODUCTION

The previous chapter suggested that much international law activity takes place within states, before domestic courts or before domestic administrative agencies. International law may be made between states (and within international organizations), but is often given legal effect through domestic law, either by direct incorporation, or through transformation in domestic law.

In much the same way as international law and domestic law are interconnected, so too is international law inextricably tied to its normative and sociological environment. It can confidently be stated that there are close connections between international law, politics, and ethics, and that international law and global governance stand in some relationship to each other. International law may have some autonomy vis-à-vis politics and ethics, but its autonomy is generally considered to be relative; it would be difficult to fully comprehend international law in isolation from both politics and ethics. This chapter aims to flesh out some of the interrelations at stake here, and in doing so takes up some themes already touched on in Chapter 1 above.

GLOBAL GOVERNANCE

International law is best seen as a part of global governance, even if there is more to global governance than international law alone. Clearly, when the Security Council imposes sanctions, it engages in global governance; clearly, when the WTO accords a waiver so as to exclude trade in ‘blood diamonds’ from its rules, it engages in global governance, and clearly, when the ICC holds Thomas Lubanga guilty of recruiting child soldiers, it engages in global governance.

Yet, as this book has hoped to demonstrate in several places, global governance is also often exercised by authorities and through instruments that have a hard time fitting into the traditional categories of international law; the ‘soft law’ of financial regulation is a prominent example, as are the compliance mechanisms found in environmental agreements.

What is more, global governance is often exercised by actors other than states. It goes without saying that in the field of environmental protection, an entity such as Greenpeace plays an important role, despite being neither a state nor an intergovernmental organization, and without having any law-making powers. In the financial sector, credit rating agencies play an important role.

INTRODUCTION

‘Responsibility’ is the term used by international lawyers to denote the idea that some entity can be blamed for undesirable behaviour. The main form, relatively well settled, is the responsibility of states. It was confirmed by the PCIJ in the 1920s, in the Chorzow Factory case, that the possibility of being held responsible was the price to pay for being able to participate in international law. Consequently, it would seem that, in principle, all subjects of international law can be held responsible for their behaviour, not just states, but also international organizations, liberation movements, and even NGOs. That said, however, specific responsibility regimes have only been developed with respect to states, international organizations, and individuals, and even then much of the law is rather sketchy and incipient. To some extent, the gap is being filled by speaking of accountability (as opposed to responsibility) of companies and NGOs, in addition to corporate social responsibility. It is worth pointing out, though, that on these topics hard and fast legal rules are few and far between. The only firmly established set of rules in existence relates to the responsibility of states, and these rules will be central to this chapter. In addition, some attention will be paid to the responsibility or accountability of other actors.

As a terminological matter, responsibility is usually (but not always) distinguished from liability and accountability. Liability usually denotes the existence of a financial obligation; someone is liable to pay compensation. Hence a finding of responsibility may come with a finding of liability; X is responsible for wrongdoing, and thus liable to pay compensation. Alternatively, parties can agree that regardless of who is responsible for some mishap, liability shall rest with a particular state. This is the case, for instance, within NATO: responsibility for certain NATO acts may rest with NATO itself (depending on the circumstances), but liability is assigned, by treaty, to particular member states.

Accountability is the broadest of the terms, and in its more sophisticated versions may signify the existence of a relationship whereby someone is held to explain and justify their behaviour to someone else. This may involve the law of responsibility, but need not: one can also meaningfully speak of democratic accountability, for example where a person is expected to justify her behaviour to a parliament rather than before a court.

INTRODUCTION

The sovereignty of states means that it has been considered very difficult to hold states to account before a court. This is still reflected in the idea that states enjoy sovereign immunities in domestic law, one of these being immunity from prosecution; as we have seen in an earlier chapter, states cannot be held to account in the courts of another state for their official acts.

If states cannot be held to account before a domestic court, it stands to reason that their acts can be adjudicated before international tribunals, but this has taken a long time to develop. States have been reluctant to subject themselves to the jurisdiction of international tribunals and, by and large, continue to be reluctant to do so. While international courts are quite numerous in the early twenty-first century (at the latest count, there are some 125 in existence, in all sorts and varieties), adjudication took a long time to develop and is still often considered as onerous. States tend to prefer to settle their differences by political means, and in a sense, this is as it should be; much as in private relations between individuals, courts should be a medium of last resort. This chapter will discuss briefly dispute settlement by political means, discuss arbitration and, at considerable length, discuss the ICJ.

SETTLING DISPUTES

The UN Charter obliges its member states to settle their disputes peacefully, and does so in various ways. One of these ways is that the peaceful settlement of disputes is listed among the founding principles of the UN in article 2, paragraph 3 of the Charter, and is followed, in the next paragraph, by the prohibition of the use of force. Article 33 UN Charter adds a list of possible ways to settle disputes peacefully, most of these being of a political nature.

While it should be obvious that these means of settling disputes cannot have a technical meaning (with the possible exception of the ‘legal’ means, arbitration, and adjudication, which will be discussed below), it is perhaps useful to describe briefly how they tend to be used in diplomatic practice. ‘Negotiation’ typically involves two parties who, by trying to talk things through, aim to reach a solution to their dispute.