The Role of International Law; Its Relevancy, Efficacy and Violations towards International Community; is it really Law?

Abstract:

There have been many discussions on the existence of International law towards international community. Scholars try to question the nature and validity, substance and enforceability whether is binding. While some go further to ask whether it is really law! Can it be opposed to the concept hence to say that international law is an instrument of the “Big power” for furtherance of their external influences and interests under the umbrella of it?

However to answer all this will need a fresh discussion to a new chapter! Mean while, the author of the article examines, though not in extenso, to the arguments whether international law is really law, and whether its enforceability depends on states being economical powerful As any other domestic law, the author poses questions as to whether International law is selective, a “quasi – law in nature” and whether a state can subsist without its existence. The author closes the article by examining the relationship between international law towards the third – world and the global in general, where recommendations remain constant.

A. International law; what it is.

The conception itself must be taken cautiously since if there could be no fear of threat or use of force, then the meaning is less qualifying. While if the nation is a super power, then the definition is in question. Dr. Mineni, S.R, In his” Jurisprudence (legal Theory) at page 77  2^nd Ed 104 says, is that all body of customs, usages, conventions and principles of international propriety and natural justice as have been accepted or recognized by nations of the world. Shaw Malcolm in his “International law” expands his definition that not only International law concerns with rules governing the relationship between states and states or states and International Organizations, but its legal personality extends to cover also individuals as its subjects. To day international law covers matter concerning environment, global business and trade, groups and organizations. Law of the Air and Sea so also matters related to outer space. Not only that but also matter of universal nature are also included as subject of international law.

Among them are, Crimes Against Humanity, Apartheid, Hijacking, Slavery, Genocide, Human Trafficking and Drug Trafficking are considered to expand the definition of international law where genocide law is the mother in that sense.

The author relates the above concepts by adding that, international law is based on the concept of “good faith and good –will”, that tends to govern the states but does not directly interfere with social, economic – political aspect of particular nations or state but only to the gross – violation of human rights and direct interfere of specified or unspecified interest of another state”.

Among criticisms the author tries to put concerning the definition of international law is that, most scholars stress on the “rules” and “relationship” which in fact is practical and true since not all states are unified by one recognized material body, organizations or by a treaty or convention and probably by basing their arguments on the sovereignty of states and their independent governments. Nevertheless, little stress is put on its enforceability and binding of international law. That is why the author of this article is of the considered view that international law is (only) to the greater extent based on good – will good faith and trust since a state to some treaties, can withdraw and opt to enter not to enter into agreements, conventions and possibly not to join UN organ. The force can only be employed where the matter is of universal interest.

B: Background of international law.

In the really sense, Developing countries and states with little influences to wards others contributed very little in the history of the existence of International law. The foundation of it (law of nations) is from the development of western culture and political organization to gear the influence to other states. The growth of European notions of independent nation – states required an acceptable method whereby inter – state relations could be conducted in accordance with commonly accepted standards of behavior where international law was sought to fill a gap (lacuna.)

However, one may trace the origin of International law even more back the European civilization (early origin) to Middle Ages and hence to modern era and lastly to include the new development of capitalism and globalization.  Shaw, M (supra) says around 2100BC a treaty to respect boundaries around them, Later on Rameses II of Egypt and the king of Hittites concluded a treaty for the establishment of peace and brother hood (Nussbaum, law of Nations, PP 1-2) These few stand as early origin but the author gets doubt as to whether those treaties were binding and enforceable and what organ whether judicial or any was to stand upon violation!

The middle age came to be characterized by strong organization of the church by conquering states and established dominion over them such as the Roman Empire by establishing the “cannon law” .In this sense the church acted both as church and institution for gain supported by ecclesiastical law. For that reason, a need to unite certain ethical and ideologies arose. This is International Law.

The nineteenth century concept of international law became euro – centric. The new international order based on the European balance of powers, Democracy and Nationalism so also civilization and industrial revolution. These was followed by the establishment of the Permanent Court of International Justice (PCIJ) in 1921 at the Hague succeeded by the current International Court of Justice 1946 (ICJ) and many other international organization were formed to that effect.

The sources of international law are taken critically from Article 38 (1) of the ICJ (supra) supported by others such as jus cogens(peremptory norm of general customary of international law), writing from highly qualified jurists.  The Declarations such as Universal Declaration of Human Rights (UDHR – 1948) customs, usage and judicial decisions (president) through this one still in disputes whether it marks a source of IL.

C: The role of international law

From arguments by scholars, it is clear that governs relationship between states and states, states and international organizations such as UN, and International Organizations to individual or group of individuals. When an individual commits a crime alone or, and accessories, is prosecuted in the International Court of Justice, for instance, Charles Taylor, a former Liberian president was a first African individual to face charges at the Hague, Others are like Slobodan Milosevic, the late former Yugoslavian President.

From that, comes the very global sensitive issue relating to the hanging of Saddam Hussein, the former Iraq president; the death penalty. However, he was prosecuted under domestic law but under pressure from international community, Big-Powers nations if one wants to be clear. Meanwhile it is not the author’s intention to deal with this at lengthy

International Law also binds parties under such relationship by means of treaties, conventions, agreement and or diplomatic relations. In connection to that, the leader of the insurgents/militants in Uganda, the “Northern Resistance Army “Mr. Joseph Koni has been issued the warrant of arrest to appear at the Hague. (at the time of writing this article).

D: Efficacy of International law:

Its efficiency is arguable by any person of innocent mind while others would appraise its existence managing to establish different judicial organs and others that are not judicial some hold a different view. It has succeeded to establish the International Court of Justice (ICJ) in 1946 as a strongest judicial organ. Others are United Nations (1945) with the specialized agencies The International labour Organization (ILO) the UNHCR, UNESCO, UNDP, WHO, UNICEF and others like The International Criminal Tribunal for Rwanda (ICTR) concerning Genocide Crimes. In Tanzania and the International Criminal Court (ICC – 2002) though this one was so opposed by big powers like U.S so far these organs have been proved to operate efficiently despite the shortcoming How ever a critical challenge may be observed to the UN bodies such as the security council and the “Disarmament policy” to that effect. Nations are violating agreements and continues dangerous nuclear Programme now and then. Northern – Korea for example, was manufacturing Taeopodong II “ a strong and Speedy missile which can go up to 3000 miles. It has however this recently agreed to sign an agreement to close it nuclear programme. Iran faces allegation of nuclear programs.  The failure of the government of Lebanon to disarm Hezbollah, the Militants who control South Lebanon, US to invade Iraq for the “So – called” possession of weapons of mass destruction and later on changed the allegations to human right issue. Not only that buy also the on – going crisis in Darfur where hundreds of thousands are witnessed to die. The current crisis in the Middle East with its never-end Israel-Palestine war with much causality every day. Nevertheless, who actually produces weapons and who uses them and for whose benefits?

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E: Relevancy of international law to the present international

     Community.

The author view is to the effect that it is a political law than law itself in its natural since. This is where states with superior influence diverge from the reality and use it anyhow. For stance those states with “Veto” powers to the UN. The all General Assembly may sit discussing matters affecting their subjects but lastly a veto is possed by even one state to the expense of say 300 voters and things turn upside – down to that effect. What follows is that all states have to agree with, so there is no equal or power of decision-making. It is provided that, a treaty concluded under coercion, inducement, force or misrepresentation is void. Then, can a law subsist while it is invalid? (Void ab initio) The Vienna Convention on theLaw of Treaties (1960) provides to the effect that, when a treaty is concluded becomes binding. This is a quasi binds since concept of good faith and trust is just used. (Pacta sunt servanda)

There is an argument that when a state acquires Recognition as International Legal Personality, it is drawn into that network by sending Diplomatic Relations such as Ambassadors, consus and other leaders. Can this relationship be viewed, as such that, being more of diplomatic and political nature which in itself can not be used as a practical base to reflect or agree to certain issues fearing of ending states interests? Does this lower the status of International Law since states fear to be in direct confrontations with other so to safeguard their being?

F: Violation of International Law.

From the author’s view, this happens to states and states, big powers to the lesser ones, disregarding powers of the UN bodies for instance the Security Council and the General Assembly and failure to observe the Law of treaties and agreement there to and poporsely violating Human rights and Lack of strong and independent international judicial body. Theoretically, one would add lack of strong and unifying international force ready to deal with any state violating international law arbitrarily with no good cause.

As the author pointed out earlier,  that it seems more as a political sense  rather than enforceable and binging law since states  with influences may violate rules of international law without respect to the UN organs, sometimes under the umbrella of rescuing human rights issues, or self defense in the mean time the core economic or practical goal is hidden. Then the UN fails to impose sanctions over such states. Examples can be drawn from Rwanda and Uganda when invaded DRC – Congo for what was said looking for illegal militants. In 1991 when Iraq invaded Quait. In 2003 when US invaded Iraq for what was call edged to be searching for “Biological weapons”.

Another thing could be the non-Intervention of the crisis, say, in – Darfur by International Community. It is only recently the Sudanese government has allowed the UN forces in. Also the Crisis in the Middle – East and the insecurity to the Israel and Palestine. Furhtermore,The 1978 Kagera War – when Idd Amin of Uganda invaded Tanzania due to border crisis. The Western – Political International community fails to take necessary measures upon these violations, can one dares to propose that the existence of International Law is selection or rather questionable! All in all scholars must also appreciate the existence of International Law and UN efforts in general which help to restore the present world order.

G: The status of International Law: whether it is really law.

The discussion on this has two schools of thoughts on the nature of International Law. Some say it is not law and others say it is, and both give reasons for their positions. Jurists like Austin denies to the effect that it does not qualify a Law since it lacks certain important features, characteristics of a standard Legal system such as Legislators, judicial organ with compulsory jurisdiction and institutionalized method of Law enforcement. Austine further adds… International Law is the Law of positive morality or as a moral code of nations hence not proper Law since positive law must be set by a given sovereign to people.  Here the justification might be based on the doctrine of state sovereignty and immunity, that each state has the power to determine its rules of citizenship and that each nation is independent from others hence international Law is just a symbol of unit but not effective.

Others argue that International Law is Law in strict sense (strictu sensus) and as a conventional Law. To have a community of nations, rules governing that community and the common consent of that community to observe rules by external powers make it to qualify as Law?. In relation to Municipal and, or domestic Laws, group of individuals stands as a community, such community are bound by Laws through the external powers – the executive and judiciary. As time changes, probably International Law is based upon natural justice or the principles of right reason. But one should remember that, on the basis of enforceability, every law including domestic one has its enforcement problem there should be an objective test for one to stand in his/her position.

From the development of science and more advanced technology, where some matters are not only affecting individuals, a single nation or state parties only, then International Law to be valid needs more discussion. Matters of genocide crimes, hijacking of aircraft under space Law and, crimes against humanity of murder, apartheid, slavery, drug trafficking and human trafficking are universally recognized, then the need for International Law? Since Universal crimes subject to any jurisdiction ICJ as International court is inclusively.

When states conclude treaties, they are bound by them and ready to face legal liabilities. (Refer the case of Nabcivoco Nagy maros, Hungary /Slovakia ICJ Report 1997). By the Universal declaration of Human Rights (UDHR - 1948) States are collectively drawn to respect Human Rights and upon any gross violation of human rights by a state, the use of force is employed by the Security Council under UN body. This however could not be done if international law was less effective and cannot bind the parties.

Mistakenly though the author may be, he sees the importance of it in the world today. The discussion as to whether it law or not may remain.

Through International Law arises from voluntary agreements among states but its nature can not be avoided to the present global situations. Hence this situation makes the author to pose a question whether a nation can subsist without International Law.

H: Can a Nation Subsist without International Law?

This question is important, because if the answer is yes, then the all issue of relationship of states and states, individuals and International Legal personalities is void and of no use since it denies the fact that no single factor that unifies the global transactions, business, economics, be it social, political or economy and hence each state is self – sufficient without depending to other in anything!

Nevertheless, if the answer is no, then can this proves that international sufficient?. The need to exchange foreign currency, export and importation of goods, international investments and security of the state are enhanced by diplomatic relations to foster the economic strengths, Then International Law penetrates to govern all those and upon violation of rules Legal sanctions and political ones follows.

The development of environmental Laws (International Environmental Laws) made the global to consider it global issues hence subject of it. Due to globalization and development of new Laws, for instance space and aircraft Law, human right Law, world economy and its agencies the International monetary Fund (IMF) and the World Bank, all these can  be enforced  without the Law which is enforceable and binding?. The need to recognize general world civilization and establishment of Regional Groupings such as the New East African Community COMMESA, OAU (Now AU) European Community (EU) SADC, All these subsist under the Umbrella of IL. To control this relationship upon any grave breach or rules, organs like NATO, ECOMOG, and International Peace keeping Force are employed to symbolize its enforceability. For the purposes of footing together with the World Politics, to defend the state and hence to have a say in UN, this can stand for those wanting to argue in favor or agaist international law, though the doctrine of “VETO” penetrate as a bar.

I: Relevancy and Application of IL to the third World Countries like Tanzania.

 As a state, they are subject of International Law and have legal personalities over different matters of International nature. However third World countries due to colonialism, neo–colonialism. Poor economy, enforcement of economic liberalization and globalization in general, can be said to be drawn into the ideas of powerful economic states to enter into agreements, Treaties and conventions for which may no be much beneficial to them and do not direct serve the interest of their states and subjects.

S: Conclusion and Recommendations

International Law plays an important role in maintaining interests and Legal order. In the present world, it is a necessarily to operation under the rules of it since states are not in isolation but facilitate each other. This can be seen in all spheres of life.

Recommendations to these are, the UN has a big challenge on how to maintain legal order. Big power should not use their influences anyhow on the expenses of the power states. The UN mechanism needs be re – structured to give it more powers and capacity. This includes decision-making powers and,  the power to limit or disagree and that of allowing or agreeing on all matters be it political or other. The UN also has very big challenges concerning the powers to challenge the “VETO” power (vote) and Disarmament policy! Since the world now goes by the indirect principles of “Survival of the fittest”MNBV  ,MNBB

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