Is International Law Real Law?: The Debate Explained

International Law Legitimacy: Exploring the Debate on True Law

A Critical Examination of International Law

International law is a complex and multifaceted field that has been the subject of much debate and discussion over the years. At its core, international law is a set of rules and principles that govern the interactions between countries and other actors in the international system. But despite its importance, there is much disagreement over whether international law is truly a "law" in the traditional sense of the word, or if it is something else entirely.

In this article, we will explore the various arguments that have been put forward regarding the nature of international law, and consider the opinions of different authors on this topic. We will begin by defining what is meant by "international law" and looking at some of its key features. We will then consider some of the different perspectives on whether international law is a true law, and explore some of the key examples of how international law operates in practice. Finally, we will conclude by discussing some of the implications of these debates for the future of international law.

You can also read How international law can be improved: Suggestions from Scholars

Overview

Some writers, especially those of the Austinian school, insist that what is called international law is not at all but a branch of international morality. Others declare that the matter is one of definition, while still others staunchly defend the validity of the term. Actually, the controversy that whether international law is a law or not revolves around the divergent definitions of the word “Law” given by the jurists. As pertinently remarked by Collins, “Whether or not one wishes to attribute a legal character to the norms of international law depends largely upon the definition of law, he chooses to accept.” Thus jurists are divided into two groups in regard to the legal character of the norms of international law, one accepts its legality, and the second denies it. 

Defining International Law: 

Before going into the discussion that whether international law is a true law or not, it is necessary to understand some of its definitions put forward by some pre-eminent jurists: 

(1) Oppenheim 

International law is the body of customary and conventional rules, which are considered binding on civilized states in their relations intercourse with each other.

(2) Schwarzenberger 

“International law is the body of legal rules which apply between sovereign states and such entities which have been granted international legal personality.”

3) Brierly 

“Body of rules and principles of action which are binding upon the civilized States in their relations with one another.” 

(4) Starke 

“It is the body of customary and conventional rules which are considered binding on Civilized states in their relationships with each other and includes also functioning of international institutions and their relations with each other and states and also individuals in relation with states and international institutions.” 

What is International Law? Key Features:

International law is a complex and evolving field, but at its core, it is a set of rules and principles that govern the interactions between countries and other actors in the international system.

Some of the key features of international law include:

While these are some of the key features of international law, it is important to note that there is no clear consensus on exactly what constitutes international law. Some argue that it is primarily based on treaty agreements, while others argue that it also includes custom and general principles of law. Additionally, there is ongoing debate over whether certain types of non-state actors, such as international organizations and individuals, are also subject to international law.

Is International Law a 'Real' Law or Simply a Set of Guidelines?

The jurists are divided into two following groups in regard to the legal character of the norms of international law: " 

GROUP (A): International Law is Not a Real Law :

Despite its apparent importance, there is much debate over whether international law is truly a "law" in the traditional sense of the word. Scholars from Group A argue that international law is not truly a law because it lacks the key characteristics that define a legal system. For example, some argue that international law is not truly a law because:

Austin, Hobbes, Pufendorf subscribe to the view that:

“Law is the general command of the political sovereign to the members of political community which are bound to obey because of physical force of such sovereign.” 

Since, according to their view, the law is the command of a determinate superior, no law can exist where there is no supreme law-giver and no coercive enforcement agency, According to Thomes Hobbes, man is by nature nasty, brutish and violent and fear of sanction which is inherent in law is necessary to maintain order. Thus, we see that those jurists who deny the legal character of international law, regard law as the command of the sovereign and having a coercive enforcement agency. In view of these writers, the rules commonly called international law, are, in fact, the rules of positive morality, 

Holland, Jeremy Bantham, Fethro Brown, etc. are other prominent jurists who deny the legal character of international law.

Those who argue that international law is not a true law point to the fact that there is no central enforcement mechanism, such as a world government, to ensure compliance with international legal norms. Additionally, the fact that states are considered sovereign entities under international law means that they are not bound by the same obligations and constraints as individuals and organizations within a national legal system.

You may be interested in reading Primary Sources of Public International Law

Arguments Delivered by Scholars of Group A

These jurists put forward the following arguments:

(a) No Existence of Determinate Superior Political Authority 

In municipal law, there is a determinate superior political authority that may compel the citizens to observe the law. No such political authority exists in international law. 

(b) Lack of Effective Legislative Machinery 

As compared to municipal law, international law lacks effective legislative machinery. In the changed and developed state of international law today, most of the rules are in the form of treaties. But treaties are entered into by states on the basis of equality and there is no such authority over and above the states to observe the rules of international law. 

(c) Lack of Sanction 

International law lacks sanction which, according to the writers of this persuasion, Is an essential element of the law. 

(d) No Executive Power 

There is no such executive power in international law as may enforce the decisions of the International Court of Justice and ensure the observance of the provisions of the treaties. 

(e) Lack of Potent Judiciary

International law lacks a potent judiciary. The powers and jurisdiction of the International Court of Justice are very limited. Much depends upon the discretion and the sweet will of the Sates. Its decisions are binding only on the parties to the dispute and only in respect of a particular case. 

Group (B): International Law is Really Law:

On the other hand,Scholars from Group B argue that international law is a true law because it is binding, based on consent and it encompasses the same principles of legal systems such as rule of law, protection of human rights and even has dispute resolution mechanisms.

Oppenheim, Hall, and Lawrance are advocates of this group.

According to these Jurists, laws are not obeyed only because of fear of punishment. They are often obeyed because one feels a moral duty to obey certain laws.

As argued by Lawrance:

Habitual obedience is secured for international law through by moral more than material force.

According to Starke:

“Modern Authorial Jurisprudence has disproved that force is sanction behind the law. It is proved beyond doubt that there are many communities that have a system of law without formal authority and are equally obeyed. it was by formal authority.

Arguments Delivered by by Scholars of Group

The arguments of the jurists who regard international law as real law may be summed up as follows:

(a) Need for Sovereign Political Authority

The term law cannot be limited to rules of conduct enacted by a sovereign authority. Sir Henery Maine, one of the chief exponents of Historical jurisprudence carried on research on it and firmly established that in primitive society there was no sovereign political authority yet there was law.

(b) Customary Rules

The Austinian concept of law fails to account for the customary rules of international law. If we accept the Austinian definition of law, the common law of England will lose its validity.

(c) International Conventions

Customary rules of international law are diminished and are being replaced by law-making treaties and conventions. Today, the bulk of international law comprises rules laid down by various law-making treaties, such as Geneva and Hague Conventions. The Tules laid down by these treaties are binding although they do not emanate from a sovereign political authority.

(d) No Reliance upon Moral Arguments

When international questions arise, states do not rely upon moral arguments but rely upon treaties, precedents, and the opinions of specialists.

(e) State Practices

In some states (e.g., U.S.A. and U.K.) international law is treated as a part of their own law. A leading case on the point is the Paquete Habana Case (1900). In this case, Justice Gray observed “International law is a part of our law, and must be ascertained and administered by courts of justice of appropriate jurisdiction as often as a question of right depending upon it are duly presented for their determination.

(f) Settlement of International Disputes

As per the Statute of the International Court of Justice, the international court has to decide disputes as are submitted to it in accordance with international law.

(g) Basis of United Nations:

Another dimension that some authors and scholars points out is that International Law is a political rather than a legal construct, due to the fact that International law is not created by an independent entity like the legislative body, but by a group of nation-states that have agreed to certain regulations and norms to govern their relations. The United Nations is based on the true legality of International Law. 

(h) Treaty law

As far as a sanction is concerned, international law does not completely lack it. An important principle of international law is the idea of "treaty law," which refers to the legal obligations and rights that states have as a result of agreements and treaties that they have entered into with other states. These treaties are binding under international law and can be enforced through the use of sanctions and other measures by the international community. 

(i) No Effect of Violation 

It is true that international law is frequently violated but it does not mean that international law is not law. Every state or municipal law is violated. Frequent violations of the law indicate the weakness of enforcement machinery and have nothing to do with the legality of the rules. The legality of rules and the weakness of enforcement machinery are different things.

(j) International Court of Justice 

International law is a true system of law as it is based on clear rules and principles and that there are mechanisms in place for enforcing these rules, such as the ICJ and ICC.

The important aspect of international law is the concept of "jurisdiction." In national legal systems, jurisdiction refers to the authority of a court or other legal body to hear and decide a case. In the context of international law, jurisdiction refers to the authority of a state or international organization to make and enforce legal rules. For example, the International Court of Justice (ICJ) has jurisdiction over disputes between states, and the International Criminal Court (ICC) has jurisdiction over certain international crimes such as genocide and war crimes.

The decisions of the International Court of Justice are binding upon the parties to a dispute and only in respect of that dispute. The powers and jurisdiction of the International Court of Justice are not equivalent to the municipal court but under certain conditions, its decisions can be enforced. Article 94 of the UN Charter provides that each member of the UN undertakes to comply with the decision of the International Court of Justice. It further provides that if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

(k) Idea of customary international law

There are several key elements of international law that suggest that it is, in fact, a form of law. One of the key principles of international law is the idea of "customary international law," which is based on the idea that certain legal principles and norms have become binding on states through the consistent practice of states and the recognition of such practice by other states. This principle is similar to the concept of common law in national legal systems, which is based on the principle that legal principles and norms become binding on individuals and organizations through repeated usage and recognition by the courts.

(l) Recognition by states

One of the key arguments that international law is a true law is the fact that it has been recognized as such by states and other actors in the international system. For example, states have established international courts and tribunals to hear disputes and enforce international law. Many countries have included international law as a separate subject in their legal education system. Additionally, many argue that the fact that countries willingly submit to the jurisdiction of international courts and tribunals, and comply with their decisions, is evidence that they recognize the binding nature of international law.

Many international legal scholars have also defended the existence of international law as true law. For example,

international legal scholar, Hersch Lauterpacht, argued that international law is a true law because it is based on the same principles as domestic law, such as the rule of law and the protection of individual rights. Lauterpacht argued that while international law may not have the same enforcement mechanisms as domestic law, it is still a legal system in its own right, with its own unique principles and procedures.

Another notable international legal scholar, Martti Koskenniemi, has also argued in favor of the existence of international law as a true law. Koskenniemi argues that international law has its own set of legal norms, principles and institutions and these are not dependent on the domestic legal systems. Thus, he believes that states are legally bound by international law and it is not just a mere political agreement or custom.

The Role of International Law in Practice

International law plays a crucial role in regulating the behavior of states and other actors in the international system. Here are a few examples of how international law operates in practice:

The United Nations Charter:

One of the most important examples of international law is the United Nations Charter, which was adopted in 1945 and establishes the framework for the UN system. The Charter lays out the basic principles of international law, including the prohibition on the use of force and the promotion of international cooperation.

International human rights treaties:

International law also plays an important role in protecting human rights. There are a wide range of international human rights treaties, such as the International Covenant on Civil and Political Rights, which are binding on states that have ratified them. These treaties set out the rights that states must respect and protect, such as freedom of expression, the right to fair trial, and the prohibition of torture.

International Criminal Court:

The International Criminal Court is a permanent international tribunal that has been established to hold individuals accountable for war crimes, genocide, and crimes against humanity. This court operates under the framework of international law, which enables it to prosecute individuals for committing these serious crimes even if the country where the crime took place is unable or unwilling to do so.

Trade agreements:

International law also plays a key role in regulating economic interactions between countries. For example, the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets out the minimum standards for protection of intellectual property that countries must adhere to.

Climate Change agreement:

The Paris Agreement under the United Nations Framework Convention on Climate Change, is a legally binding treaty that sets out a framework for reducing global greenhouse gas emissions. The agreement is an example of how international law can be used to address global problems that affect the entire world.

These examples demonstrate how international law operates in practice, and how it plays a crucial role in regulating the behavior of states and other actors in the international system.

Can Individuals Be Tried for Violating International Law?

Yes, individuals can be held accountable for violations of international law. This relatively recent but critical development in the legal landscape offers a powerful tool for deterring future atrocities and promoting global justice.

Historical Context:

Prior to the 20th century, international law primarily held states accountable, with individuals often escaping responsibility for their actions. However, the horrific events of World War II forced a paradigm shift. The Nuremberg and Tokyo Tribunals established the principle of individual criminal responsibility for war crimes and crimes against humanity, marking a turning point in legal history.

Evolution of Individual Responsibility:

The Nuremberg and Tokyo Tribunals paved the way for several international criminal tribunals, including:

1. The International Criminal Tribunal for the former Yugoslavia (ICTY): Established to address war crimes and crimes against humanity during the Yugoslav Wars.
2. The International Criminal Tribunal for Rwanda (ICTR): Focused on prosecuting crimes committed during the Rwandan genocide.
3. The Special Court for Sierra Leone (SCSL): Held individuals accountable for war crimes and crimes against humanity during the Sierra Leone Civil War.
4. The Extraordinary Chambers in the Courts of Cambodia (ECCC): Prosecuted crimes committed under the Khmer Rouge regime in Cambodia.
5. The International Criminal Court (ICC): The first permanent international criminal court, established to prosecute individuals for genocide, crimes against humanity, war crimes, and crimes of aggression.

Additional Mechanisms for Accountability:

Beyond international criminal tribunals, other mechanisms contribute to holding individuals accountable:

Domestic courts: National legal systems incorporating relevant international law can prosecute individuals for violations.

Universal jurisdiction: Certain countries assert universal jurisdiction over specific crimes, allowing them to prosecute individuals regardless of nationality or location.

Targeted sanctions: The United Nations Security Council can impose targeted sanctions on individuals involved in serious violations of international law.

Challenges and Limitations:

Despite significant progress, challenges remain:

Limited jurisdiction: International tribunals have limited jurisdiction over crimes and individuals.

Political considerations: Political factors can influence the ability of tribunals to prosecute individuals.

Lack of cooperation: States are not always willing to cooperate with international tribunals, hindering investigations and prosecutions.

The Future of Individual Responsibility:

The development of individual criminal responsibility represents a major advancement in international law. It serves as a powerful deterrent against future violations and offers a path towards achieving global justice. By strengthening existing mechanisms and addressing current limitations, the international community can continue to build a robust framework for holding individuals accountable for their actions on the world stage.

Conclusion 

As international law has its origin in the reason and consent of a nation and has grown from customs, treaties, etc., there exist certain weak angles in it. Some writers insist that what is called international law is not law at all but a branch of international morality. Others declare that the matter is one of definition. The average man would probably assume that where there is violence and obvious injustice there is no law. Indeed, this conflict is rooted in the understanding of “Law.” One who understands the law in the light of Austin’s definition would surely deny the legal character of international law. But according to the modern conception of law, international law exists and works not perfectly or always but enough and often enough to make a considerable difference in the conduct of international affairs.

There are many opinions among scholars and legal practitioners about the nature of international law, whether it is a true law or not. But it is undeniable that International law plays a crucial role in regulating the behavior of countries and other actors in the international system, as seen in many examples such as The United Nations Charter, International human rights treaties, International Criminal Court, Trade agreements and Climate Change agreement.

 it is widely accepted that international law plays an important role in shaping the relations between states and in promoting peace, security, and cooperation among nations. International law provides a framework for addressing a wide range of issues, such as human rights, the environment, and trade, and it plays an important role in resolving disputes and maintaining stability in the international system.