Is international law a real law?

 

PRELIMINARY

The statement that, “the law governing international organizations and regional bodies is not true law, but rather just mere agreements of morals to be followed made by states”, is not entirely correct^[1]. But it is true that, international law is weak, complicated and tough to implement compare to national law. There has been an endless argument on whether international law is a real law, which need to be regarded in the same way as ordinary laws of states which are binding upon the citizens, or is a code of rules of conduct of moral force only. To argue this, several Jurists came with opinions on what is law and its features, together with an assessment on whether international law falls within scope or features of a term law. Austin^[2], an English Philosopher whose notable work “The Province of Jurisprudence Determined”, contributed much to the development of Jurisprudence and law. According to Austin, law is a command of the state accompanied by sanctions in case of violation of the command. As per Austin, laws should be limited to rules of conducts enacted by competent and proper legislative authority and enforced by sanctions. Two key elements described on Austin’s definition of law is that, law is a command enacted by a sovereign legislative authority and must be enforced by the sovereign authority. Basing on the above definition of law, Austin argues that, international law cannot be called law proper in the true sense because it has no sovereign legislative authority and they can barely be enforced.

Moreover, Austin argues that, there is no enforcement agency which can enforce this body of international rules. Austin regards international laws as the rules of positive morality with no legal force but moral force. Austin’s view on what is law confronted several criticisms from other Jurists such as Oppenheim. Oppenheim^[3] criticized Austin’s view on international law by arguing that, law is a body of rules for general conduct within a community which can be enforced by external power after consent is given by the community. Based on his opinion, Oppenheim’s definition of law consists three elements^[4].    Firstly, there must be a community, secondly, a body of rule of conduct governing the community and thirdly, consent of the community for the rules to be enforced by external power. From this view, one may come to a conclusion that, it is not necessary that laws should be enacted by a sovereign legislative authority within the community for them to be legally binding. They can be enacted in anyway but must be consented by the community and an external power my enforce those laws after the consent has been given by the community.

According to Pollock^[5], existence of political community and acceptance by the community of the existing body of rules governing them is enough to determines the status or authority of the law. As per Pollock, it is not necessary that laws must be enacted through competent legislative authority to be law, what is necessary is political authority governing the community, recognition and acceptance of those rules by the community. Regarding his view, international law is a law because it satisfies the above elements or conditions. As per Heinkin^[6], what matters is not whether the international law has legislative authority, judicial or executive branches implementing the international laws as in domestic law. What matters is, reflection of international laws in national policies and in relation between states. According to Heinkin opinion, one may conclude that, international law becomes law and effective only when adopted and enshrined within domestic law. If international law is not adopted within national legislations, it will be defective and not a good law. As per Starke^[7], international law is a real law, which need to be regarded in the same way as ordinary laws of states which are binding upon the citizens. He lays his opinion on the four arguments as follows;- firstly, in primitive community there was no any formal legislative authority but laws were there and applied accordingly, secondly, formal regional and international legislative authorities have come to existence these days, thirdly, agencies responsible for implementing international law does not regard international law as mere moral code but effective law and lastly, United Nations is a true, competent and complete creature of international.

Most of Philosophers and Jurists apart from John Austin agrees that international law is a law and is in same status as domestic law, but it is complicated and not easy to implement compare to domestic law. Jurists agrees that, international law is mostly affected by the sovereignty of states and they can only be implemented if the member state or signatory of the treaty is willing to do so. The following are general weaknesses of international law.

WEAKNESSES OF INTERNATIONAL LAWS

No enforcement mechanisms to enforcing its provisions. One of the significant weaknesses of international law is lack of enforcement mechanisms to enforcing its provisions. Unlike to national laws which have state agencies, police officers and judicial authorities to enforce its provisions, international law lacks a unified enforcement mechanism. International courts and tribunals can only hear disputes if both parties consent to the jurisdiction of the court, and even if a state is found guilty of a violation of international law, there is no police force or court procedures that may be utilized to enforce the judgment. These days we have international police with its headquarters in France but still this organization depends on permission of a receiving country, they cannot operate on the land of foreign state on their own accord without prior obtaining permission. This lack of enforcement mechanisms undermines the effectiveness of international law since states that violate international law can simply choose to disregard the judgment ^[8].

Another weakness of international law is sovereignty concerns. International laws are affected by sovereignty whereby states are free to decide on whatever they want to do without interference from another state. States have final decision in whether to agree to treaties and other international agreements and sometimes they may prioritize their national interests over international obligations. For instance, some states may perceive certain international laws to be against their economic or political interests, and thus, may choose not to comply with them. This uncertainty surrounding the enforceability of international law reduces the confidence of states and individuals in the system and makes it difficult to achieve consensus and cooperation^[9].

International law-making processes are slow, complicated and cumbersome, with multiple rounds of negotiations required to reach an agreement. This can inhibit the ability of the international community to respond quickly to urgent crises. For instance, the debate on climate change has taken decades to reach a consensus, and, even when an agreement is reached in international climate negotiations, it can take years to implement it. The slow pace of decision-making reduces confidence in the system and can lead to a lack of urgency and inaction in addressing pressing issues. Laws need to give quick answers as possible to be considered as an effective law, a kind of law which cannot provide answers within reasonable time may delay justice. There is a famous legal say which state that, “the justice delayed is the justice denied”.

Another challenge of international law is limited participation. Not all states are members of international organizations, and even those who are members may choose not to participate in certain agreements or comply with certain provisions. This can result in inconsistent application of international law across the globe. For instance, the United States is not a signatory to the Rome Statute of the International Criminal Court, which means that American officials cannot be held liable before the court. This has limited the effectiveness of international criminal law in reducing impunity and promoting accountability.

Finally, cultural and linguistic differences can also create obstacles to effective international law. International law is often produced in languages that are not widely spoken, and this can make it difficult for some states to understand and participate fully in the development of international law. Furthermore, differing cultural norms and values can undermine the effectiveness of international law since states may prioritize their own cultural values over international agreements. For instance, Western values of human rights are not universal, and some countries may view Western standards as a form of imperialism that undermines their sovereignty.

WEAKNESSES OF INTERNATIONAL ORGANIZATIONS

International organizations and regional bodies have real powers, although they are constrained by the sovereignty of their member states. All these regional and international organizations depend on willingness of other member states, they cannot enforce international laws in a member state or signatory of a treaty unless that state is willing to comply to international laws. A law is not actual a law if it is not a command in nature, has no physical sanctions and if subjects of the law may choose to abide to a law or to disregard it anyway. Also, some world countries are not signatories of international treaties hence international organizations lacks force of law toward those countries. Take an example, ICC issued an arrest warrant against Vladmir Putin, a president of Russia^[10]. Unfortunately, Russia is not a party to Rome Convention which establish International Criminal Court. The arrest is impossible because Russia is not member state of Rome convention, hence no international police officers who are capable of intervening Russia to arrest Putin.

CONCLUSION

In conclusion, while international law has made significant progress in promoting peace, stability, and human rights around the world, it still faces several challenges in achieving its goals. The lack of effective enforcement mechanisms, sovereignty concerns, limited participation, slow and cumbersome processes, and cultural and linguistic differences are some of the main weaknesses that threaten the effectiveness of international law. To overcome these challenges, there needs to be a concerted effort by stakeholders to reform the international legal system and increase the participation of all states in the development of international law. This would require a commitment to the principles of international law and the recognition that they are essential for a peaceful and sustainable global society.

 

REFERENCE

BOOKS

Bederman, D. (2016) “International Law Frameworks (Concepts and Insights) https://www.amazon.com/International-Frameworks-Concepts-Insights-2016-02 24/dp/B01FIW9I8E?tag=uuid10-20

 

JOURNAL

Lara, L.R. (2014), “the problem of sovereignty, international law, and intellectual conscience”, Journal on philosophy of international law Volume 5.

ICC, “Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova”, Press release 17 March 2023, https://rb.gy/qw7j4

 

OTHER SOURCES

Aslam, A. M.  “International Law: Definitions, Nature and Basis “, https://www.legalserviceindia.com/legal/article-2167-international-law-definitions-nature-and-basis.html [Accessed April 10, 2023].

Austin, J. “The Province of Jurisprudence Determined”, ed. W. E. Rumble, Cambridge, Cambridge University Press, 1995, pp. xxxix + 293. https://rb.gy/yy3ta [Accessed April 10, 2023].

Ip leaders, “International Law – Meaning and Definitions”, https://blog.ipleaders.in/international-law-meaning-definitions/ April 27, 2020. [Accessed April 10, 2023].

 

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[1] Aslam, A. M.  “International Law: Definitions, Nature and Basis “, https://www.legalserviceindia.com/legal/article-2167-international-law-definitions-nature-and-basis.html [Accessed April 10, 2023].

[2] Austin, J. “The Province of Jurisprudence Determined”, ed. W. E. Rumble, Cambridge, Cambridge University Press, 1995, pp. xxxix + 293. https://rb.gy/yy3ta [Accessed April 10, 2023].

[3] Lassa Francis Lawrence Oppenheim, (born March 30, 1858, Windecken, near Frankfurt am Main—died Oct. 7, 1919, Cambridge, Cambridgeshire, Eng.)

[4] Ip leaders, “International Law – Meaning and Definitions”, https://blog.ipleaders.in/international-law-meaning-definitions/ April 27, 2020. [Accessed April 10, 2023].

[5] Sir Frederick Pollock, 3rd Baronet PC, FBA (10 December 1845 – 18 January 1937) English jurist.

[6] Louis Henkin (November 11, 1917 – October 14, 2010) International Law.

[7] Joseph Gabriel Starke, (1911-2006) Austrian Jurist.

[8] Kirgis, S.L. “Enforcing International Law”, https://www.asil.org/insights/volume/1/issue/1/enforcing-international-law. [Accessed April 10, 2023].

[9] Lara, L.R. (2014), “the problem of sovereignty, international law, and intellectual conscience”, Journal on philosophy of international law Volume 5.

[10] ICC, “Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova”, Press release 17 March 2023, https://rb.gy/qw7j4