Is international law is a law or not?
There has been a probably never ending debate over this question that whether International law is a real law or not. There are number of scholars who support the argument that International law is not a real law while another group of scholars argue that International law is a law. So, here we weigh the arguments of both the scholars and their views regarding this question. First of all we take into account the definition of law and International law.
What is Law:
John Austin defined law as “A rule laid down for the guidance of an intelligent being by an intelligent being having power over him” From this definition, it can be deduced that according to Austin, law consists of rules and principles that are formulated and enforced by a sovereign and recognized authority.
Professor Hart described the law as a system that is made up of primary and secondary rules made to regulate behavior in a society or community. That is to say that, laws are made to guide the behavior of individuals so that individuals are aware of what is expected from them and the likely consequences of their actions if they go contrary to the established laws.
So this guides us that law is rule and principle to govern within a state. State penalizes its individuals for the betterment of the community.
International Law :
It is a body of rules and principles that governed the relations between the sovereign states. These rules are formally created by the way of customs or treaties. Now with modern definitions of International law the international organizations like UN and other International NGO’S are also a subject under International law.
Arguments in against International law as a real law :
This approach of considering International law as not such real law was first put forward by the Realism or Realist school of thought, they compared the International law with the domestic law and came at the conclusion that international law is not a law.
They talk about the interest of the state and argue that the state of the interest is always paramount in front of International law. They argue that states as a subject to the international law would never compromise their national interest if there is a clash between both of these. Such as if we take it accordance to Pakistan situation if there is any International law which is against the Quran and Sunnah there would be difficulty in applying such law in Pakistan as in Pakistan interest and policy such rules cannot be applied. So these argument of realist school of thought are quite rigid.
This school of thought also talk about the non-coercive form of the International law. As there is no International Policeman or any other executive body who enforce these laws or compel the subjects to respect such laws. Realist argue that a real law must have a coercive power to backed the law, as comparing it with the domestic law there are number of different mechanisms to enforce the law in domestic but none of them in the Intl. Law, due to which powerful countries do not respect the law and breach the law and always go unpunished.
Such like ICJ cannot compel a state if the states themselves not to choose to appear before the International court of justice.
General assembly can also pass only resolutions which are not a law and have no binding terms on the states.
Furthermore, There is also an argument that there is no formal legislature available to enact international law. While comparing it with domestic law where is a formal authority or institution like assemblies to enact the legislation whereas no such authority or intuition available in the International law.
Treaties mostly have a vague language as there is no meaning in the treaty because they are not a code of law. Treaties are more a type of a mere agreement between two or more states which is not binding legally on any state but just declared set of rules and principles and policy regarding any specific matter.
Austin the great !9th century modern British jurist also criticize the international law and refuse to accept it as a law. He argues that there must be sovereign authority who could enforce the laws but in the case of International law we do not have a sovereign power among states as all the states are themselves a sovereign body.
He also talks about the enforcement as stated above that there must be an enforcement body to enforce the rules and penalize if rules are not followed.
Whereas Interestingly, Austin also define that what is International law if it is not a law ?.So Austin provide the theory that International law is not a law but can be considered as rule of International etiquette, Rules of morality, rules of good neighborliness. So this gives this argument a shape that it can’t be determined as law but can be determined as the rule of morality as state follow these rules under a morality obligation rather than a legal obligations.
While determining these arguments which concludes that International law is not a law we observe that this is the only law in the world which has to justify itself and need to be proved to be considered as a law. This is all due to complex nature of the International legal system and the form of law in which the International law is being enact.
Now we will go through the arguments which refute that International law is not a law and advocate that the International law is is a real law which need to be followed and bind the states to follow such rules.
International Law is a real law :
Liberalist school of thought supports the existence of International law and based on the following arguments came to such conclusion.
|Firstly,It was argued that there most of the countries follow the International law and gives recognition to International law which proves the existence of the International law. Mostly all the subjects of International follow the rules and regulations provided by international law such as in the field of communication,airlines,water ways and postal regulatons. These laws are generally obeyed by the subjects and there was no breach of law
It was also put to the debate that international law is not followed due the fear sanctions but due to the principle of “Comity” which provides an association of nations for their mutual benefit. Due to which nature of International law is quite different from the domestic law. The abuse of laws are always the part of the system which also happened in the domestic law same applies in the International law that powerful country goes free after breaching the laws.But these countries never deny the existence of such law but use exceptions to act while breaching such laws,Such as USA before attacking Iraq applied for the permission of such invasion in the security council.This shows that all the states obey the laws of Internationals law and recognized it also in their foreign policy, constitution and in their domestic judgments. They also refute the argument of realism that state interest is always paramount for them by saying that International law rules are based on general principles of law and enact as such that they never force a country to go against it vital interest so there is no chance of such conflict between national interest of states and international laws.
No doubt, there exists no enforcement agency responsible for the enforcement of International Law in international relations, yet it cannot be denied that U.N.O. has been trying to act as an enforcement agency. It has how means at its disposal to coerce an offending state by applying political or economic or even military sanctions.
Liberals also state that UN general assembly and security council act as a parliamentary body of the International law who performs the duty of legislature same as in any domestic law of any state. They enact the treaties and resolutions. They also impose the financial sanctions on the states who breach the international laws obligations. The international peace is available due to the existence of Intl. law otherwise there would be chaos and wars throughout the world. International law always try their best to stop the crimes and raise the standards of living throughout the world.
I.C.J. interprets International Law:
It is also untrue to say that there are no courts to interpret and apply International Law. Settlement of disputes through arbitration and even through adjudication by the International Court of Justice has been quite popular means.
International Court of Justice has the responsibility to interpret and apply rules of International Law. One of the purposes of the United Nations is to promote the system of settlement of international disputes in conformity with the principles of Justice and International Law.
Moreover, international law to a large extent is enforceable in the international system and there are many cases where powerful countries like the USA, China, Russia, etc. have been sanctioned for breaching some international laws for which these countries have complied and acted according to the rulings of international tribunals. For example, in 2014, the European Union imposed economic sanctions against Russia, targeting its oil industry, defense, dual-use goods and sensitive technologies. This sanction was a result of the fact that Russia was accused of supplying air missile to Ukrainian separatist, which was used in the shooting down of Malaysia Airlines flight MH17 over eastern Ukraine and this act was considered as a breach of international law. Again in July 2014, Russia was again found guilty of breaching international law and as a result was made to pay a compensation of $50bn (£29.4bn) to shareholders of Yukos, the former defunct oil company that was broken up a decade ago after its boss fell foul of Vladimir Putin . In the judgment, a tribunal in the Hague ruled that the Russian state had intentionally sought to bankrupt Yukos, confiscate its assets and use all measures possible to prevent the owner of the company who is in the person of, Mikhail Khodorkovsky, from entering into politics Additionally, on the 3rd of July 1998, a USA Navy ship called the Vincennes shot down the Iran Air Flight 655 killing all the 290 members and the crew on board. This was a terrible incident and was considered a breach of international law. In fact, Iran sued the United States in the International Court of Justice in The Hague to seek compensation for Iranian families that lost their loved ones as a result of this act and in the lawsuit, Iran argued that the United States had violated the 1971 treaty which sought to prevent acts of violence against civilian airliners. After the ruling of the court, the USA agreed to pay a compensation of $100,000 to $250,000 to the families of people killed when the Iran Air Flight 655 was shot down by the American Navy Ship.
Number of scholars also argued that this comparison between International law and domestic law is unfair because there is difference in the systems as we could see that there is different between the subjects of both these law and the sources of these laws. As in domestic law there is a sovereign power and there is no such sovereign power in the International law . Same in the sources of law there is number of differences between both of laws. So this shows that there are systematically difference in the form of both international law and national law. This shows that International law is a real law and it exist in its domain and act to apply law and protect the rule of law.
It is important to realize that international law is bound up with diplomacy, politics and the conduct of foreign relations. It is fallacy to consider international law as the only controller of state conduct. It is just one of the factors which a state will consider before deciding whether to take a particular course of action.
Such as the practices in foreign relations are according to the treaty of the International law and there are remedies available in for the countries in case of breach of the consular relations such as in Iran VS USA where Iran was penalize due to breach of laws of Vienna conventions.
Thus, this type of system makes parties of international law obey “International rules not because they are threatened with sanctions, but because they are persuaded to comply by the dynamic created by the treaty regimes to which they belong” (Thomas M. Franck). Therefore, international law is a matter of practicality and not theory.
Thus, International Law is the law that regulates the conduct of states and to an extent of individuals and several non-state entities like international agencies, protectorates, mandates, national minorities, colonies, insurgent groups and non-state actors
Lastly, as considering the all of the argument both in favor and against over topic we could say that there the international law is a real law even there are irregularities and procedural issues does exist. But we cannot deny the existence of the International law as a law just based on these merits. First of all there as we know that no exact definition of law exist upon which we determine the existence of law or null a law upon it nor there is any authority or legal body that would determine the such existence and ability to called it a law. We only have number of arguments of the scholars from both side who would describe the features and characteristics of the International law.
And as comparing both the nature of the domestic law and International law it was found that the nature was different, subjects and sources are also very much change so the comparison while determining the question of International law as a law exist it is clear that it is unfair to do as such
Also while observing the generality obedience of the International we could determine that there is a binding force on the stats to obey the laws. Even though these laws are voluntarily accepted but while determining the principle of “Comity” it is clear that there is interest of the state while obeying the laws.
Thus, the fact that there is no overall authority to force compliance with the rules does not necessarily mean that there is no law. Law still exists in this setting, though it may be practiced and enforced in different ways. International law can therefore be called “real law,” but with different characteristics from the law practiced in domestic settings, where there is a legislature, judiciary, executive, and police force.
There are some exceptions in the international law and some technical difficulties while applying laws but these exceptions are not a proof that the laws are not of a binding nature and cannot be considered as the “true law”.
There is no definite answer to such questions but we could form our own opinion which in this case my opinion is that International law is a real law and true in the sense.