Is International Law, Really Law?

By Victoria Tabut LLB (Hons)

Introduction

            The objective of this paper is to distinguish international law and municipal law by virtue of their elements. While upholding the view that municipal law is law properly so called, it will then proceed to answer the question of whether international law is also law despite the substantive distinction.

            International law may be defined as a body of rules and principles which are binding upon states in their relations with one another[1][2]. While municipal law has existence of a law-making body; executive which is a law enforcement body; and a compulsory system of courts and legal systems; international law is not as sophisticated[3]. Many scholars, and especially positivist, would then question if international law can be qualified as true law[4].

Developed Institutions

            The rules of International law are found in agreements such as treaties and conventions which are signed and ratified by party states. There is no central legislative body. The General Assembly is only able to adopt recommendations that are not binding to member states.

            There is no executive body with compliance mechanism in International law. Before the 1945 Charter came into effect, states had the remedy of self-help, which creates very volatile situations. After the Charter, the Security Council was empowered to make any necessary decisions which were only limited to instance of threat to international peace. Though this has a binding effect on states, the 5 permanent member states have power to veto the Security Council[5].

            There are a number of International courts such as the International Court of Justice and the International Criminal Court[6]. There are other regional specialized courts such as the European Court of Human Rights. The parties that are tried in such institutions are as a result of complementary measure subject to consent.  There is also the matter of enforceability which may make a mockery out of the determination of said courts due to lack of compliance.

            International law differs from municipal law due to lack of a central legislature, executive body and principal courts, to an extent, lack jurisdiction over its subjects.

Enforceability.

            John Austin as a positivist was of the view that international law is not law but positive morality since it lacked the mechanism of enforceability[7]. His argument was disputed by Fisher who argued that essential force was not essential for compliance to be effected[8]. In essence, he did not dispute that law must be enforced but refuted the fact that Hart was of the view that international law lacks compliance. He thought of enforcement through other modes of politically inspired forces because he argued that effective force differs when applied to individuals and when applied to states.  This is quite a substantial view and especially to a body such as the UN whose main objective is to maintain international peace. States are sovereign entities and any force of police powers could result in catastrophic retaliation[9].

Political measure such as economic sanctions has proven to be effective over the years in many different jurisdictions. However, it is quickly losing its prowess (for the lack of a better term), this is especially so in the new dawn of realization. May ‘under developed’ states have begun to realize their own importance and self-sufficiency that need for international relations is soon becoming a luxury and not as essential as it once was. More so, with powerful countries such as Russia laughing at the face of heavy sanctions inspires rebellion. Furthermore, many ‘persona non-grata; states or those labelled as rogue such as Libya, Cuba and North Korea,  progress even better than those in good standing and accord with the international world.

Legitimacy.

            This is the popular acceptance of law. The argument is that international law is legitimate law, despite its lack of compliance mechanism due to, the consent aspect of law since it is voluntary then states are likely to obey it. It is also argued that compliance is mainly due to self-interest but this is often disputed with the argument that most international laws are consistent with municipal law and therefore inspire habitual obedience[10]. In essence, the fact that international law has operated for a period of time as effectively as possible is the ultimate argument for its legitimacy. The question that still lingers is the extent of the life of international law. With many African nations dissatisfied with the double standards and already threatening to pull out, the question of legitimacy of law is once again thrown into the spotlight.

Conclusion.

            The question of whether or not international law is law is really quite subjective in nature. As a subscription to the Marxist school of thought, it is highly refuted that established institution would warrant justifications of what true law is. Needless to say, even municipal law with such systems is unsuccessful in many regards.  With the acknowledgment that no legal system, even the most advance, can have absolute effectiveness. Still, the cases of injustice keep piling up. To have a law that is proper in terms of formalities and enforcement mechanism is not the standard of what law truly is.

            True law should mirror the interest of the beneficiaries. Consent by states which should be a measure to legitimize law is voluntary (in most cases) but not really consensual. Treaties to be signed and ratified rarely reflect the interest of those states that are considered to have less progression and development. In this case, international law is really the view and interest of certain states such as the US, UK and its allies.

            Therefore, for Marxists; international law is not really law. Not because of lack of established institutions or enforcement mechanism but rather its lack of true legitimacy. For positivists, International law would require a reform of systems for it to be law properly so called, but for Marxist it could begin with a true reform of ideologies[12].

Bibliography.

1.      John Austin, Province of Jurisprudence Determined (1954).

2.      Thomas M. Frank, legitimacy in the International system.

3.      Roger Fisher, Bringing Law to Bear on Governments.

4.      I Detter De Lupis, The concept of International Law (1937.

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[1] G Simpson (ed), The nature of International Law (2001).

[2] J L Brierly, The law of nations 6 ed ( H Waldock (ed)) (1963)1.

[3] I Detter De Lupis, The concept of International Law (1937)130.

[4] John Austin, Province of Jurisprudence Determined (1954) 133, 201.

[5] Article 25, UN charter.

[6] Rome Statute.

[7] John Austin, Province of Jurisprudence Determined (1954) 133, 201

[8] Roger Fisher, Bringing Law to Bear on Governments, 74, Harv. L. Rev. 1132-34 (1961).

[9] Virginia v West Virginia.

[10] Thomas M. Frank, legitimacy in the International system, 82 A.J.I.L

[12] H.L.A Hart, the concept of Law 209 (1961).