A discussed earlier, international law has traditionally been based on the notion of state sovereigntycomplete and exclusive control of all the people and property within a territory, but that concept has been breaking down because of globalization. Interactions between states have become more complicated, involving a wide array of issues that require them to give up some of their sovereigntycomplete and exclusive control of all the people and property within a territory to have effective relations with each other.
Similarly, international law has begun to deal with issues traditionally inside the borders of individual states, such as human rights. These developments have become very controversial, however. International law is often criticized for a lack of legitimacy.
For example, the law is shaped to a large degree by politics within the international system. An action, though clearly illegal in terms of international law, may go unpunished due to overriding political considerations. Since the UN Charter gives veto authority to five Security Council members, who would presumptively veto any measures to enforce international law against their own state, the legitimacy of an organization with such unequal application of the law must be questioned to a certain degree. When the most powerful players determine the rules of the game, how legitimate can these rules be?
Furthermore, most of those countries are not democracies—China, Russia, and others routinely and clearly violate international human rights law, for example. Why are they allowed to help set what the law is? (In response, a group called the Community of Democracies has developed to promote democratic cooperation.)
Indeed, unelected bodies wield significant power in the formulation of international law, from the UN Security Council to the dispute settlement body of the WTOan international body dealing with the rules of trade between participating nations. They make decisions and implement policy that can affect people around the world, but if those people are unhappy with these decisions, or if the choices made fail to reflect their interests, when the actors are in the international system, the people affected rarely have the power to hold them accountable. How can people trust international law and international organizations when there is no direct connection between them?
These questions are central to the question of whether the current rules of international law—the way they are made, and the way they are implemented—are a fair means of governing the world.
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