Comment: Role of international Law in international cooperation. (1995, 20 Marks)
International law, the term Jeremy Bentham coined in 1789, is the body of rules states treat as binding in their mutual relations. Its sources, listed in Article 38 of the ICJ Statute, are treaties, custom (practice plus opinio juris), general principles, and, subsidiarily, judicial decisions and scholarly writing. In a system with no world government, it is the main technology of cooperation: it turns one-off bargains into durable commitments.
How law enables cooperation
- Stable expectations: pacta sunt servanda, codified in the Vienna Convention on the Law of Treaties (1969), makes promises credible beyond the government that made them.
- Coordination regimes: the International Telecommunication Union (1865), Universal Postal Union (1874), aviation rules under ICAO and the WTO’s trade rules govern daily interaction where compliance is near-total and invisible.
- Codification under the UN: Article 13 of the Charter mandates the progressive development of international law, which the International Law Commission has pursued since 1947, producing the diplomatic-relations convention (1961) and the treaty-law convention. UNCLOS (1982) and the BBNJ Agreement, in force since January 2026, extend cooperation to the oceans.
- Global commons: the Montreal Protocol (1987) is the clearest case of law-driven success, and the ICJ’s climate advisory opinion of July 2025 declared climate duties binding under custom and owed erga omnes.
- Peaceful settlement: adjudication and arbitration let governments concede at home by citing a ruling, as India did by accepting the 2014 Bay of Bengal award with Bangladesh.
Why states comply
Louis Henkin observed in How Nations Behave (1968) that almost all nations observe almost all principles of international law almost all the time. Robert O. Keohane’s After Hegemony (1984) explains why: regimes cut transaction costs, supply information and make reputation valuable. Thomas M. Franck stressed the “compliance pull” of rules seen as legitimate, and Harold Hongju Koh described compliance as norms internalised through repeated transnational interaction. Abram Chayes and Antonia Handler Chayes (The New Sovereignty, 1995) gave a managerial account: most breaches stem from ambiguity, weak capacity or time lags, not defiance, so reporting and assistance secure compliance better than sanctions. Constructivists such as Alexander Wendt add that shared norms help constitute state interests.
The sceptical case
- John Austin denied it was law at all, being command without a sovereign; H. L. A. Hart replied that law is a union of primary and secondary rules, not commands, and international law functions as law despite lacking a full rule of recognition.
- Hans J. Morgenthau accepted its existence but saw it bend wherever vital interests are engaged: the invasion of Ukraine and defiance of ICJ orders confirm the point.
- Third World Approaches to International Law, notably Bhupinder Singh Chimni, see it as encoding imperial and capitalist interests, though the South has also used it, from decolonisation to the “common heritage” of the seabed.
- Fragility: the US exit from the Paris Agreement and the WHO, effective January 2026, and India’s decision to hold the Indus Waters Treaty in abeyance in April 2025 after the Pahalgam attack, show that cooperation lasts only while states value it.
Conclusion
International law does not make cooperation inevitable; it makes it possible and durable. It works in the routine and falters at the core of power politics, constraining the weak more than the strong. Yet even violators justify themselves in its vocabulary, claiming self-defence rather than a right of conquest, which proves its normative pull. The alternative to imperfect law is not better politics but unmediated power.