A CRITIQUE OF CRITICS OF MODERN INTERNATIONAL LAW

By Shaijal Shekhar, Law Student, Aligarh Muslim University

Introduction

There has been an ongoing and probably a never-ending debate among scholars of international law on whether the international law could be regarded as a real a law or not. Thus, there exists a group of scholars who are of the view that international law is not a real law i.e the realist; whereas another cluster of scholars on the opposite hand i.e the liberals argue that international law is real law. This article will analyze the thoughts of both the schools and will gaze into the speculation of Realism and Liberalism by supporting their respective individual views on the subject under discussion, an objective conclusion has drawn at the end.

Realist:  Criticism of International Law as a True Law

According to realism or the realist school of  thought, international law is not really a law. Thus the realist scholars considers domestic law as a real law, and international law, cannot be treated as a real law. Supporters of this school are John Austin, Hobbs,  Pufendorff, Jeremy Bentham, Jethro Brown and Holland. Their views are as follows:

John Austin-  According to him, International Law is not a true law, but a code of rules and conduct of moral force solely. He holds that “International Law isn’t any law as it does not emanate from a law giving authority and has no sanction behind it”. Austin delineated International Law as a positive international morality which usually consist ongoing opinion among nations. Austin concluded that International laws are merely based on ethics and morality and are aren’t true law.

· Holland– ascertained that International Law is completely different standard law and it’s not supported by the authority of a state. He called “International Law as the vanishing point of Jurisprudence”. According to him, rules of International Law lacks sanctions that’s why it cannot be kept into the category of law.

Jeremy Bentham And Jethro Brown are the other prominent jurists who also deny the legal character of International Law.

The realist advances variety of arguments to support this assertion that International Law is not a true law, a numberof their arguments have been discussed below:

  • National Interest is predominant to Every State

According to the realist, states are the major players in international system and states can never compromise their National interest for any Law of Nations. In different words, if there is a clash between the National interest of a country and an international law, almost all states will opt for their National interest on the top of International law without any hesitation.

  • International Law lacks powerful power that’s backed by a True Law

According to realist, law of nations incorporates a loose set of structure as compared to domestic law as a result of which it lacks the control that’s backed by a real law. This is more likely because, there is no international “policeman” to enforce law of nations as in the case of domestic law where there’s a recognized court and police to make sure that every person is following the law.

  • Quest for power in international relation is vital to every state

According to the realist, countries can do anything to form themselves a powerful country instead of giving recognition to international law. Because the states believe that the more powerful your country is, the more influential you’re in international system.

  • No effective General Assembly to enact international laws

The argument of the realist here is that a true law ought to have a recognized authority or establishment to enact those laws, however within the case of international law, there’s  no universally accepted authority or establishment unconditional with the facility of enacting international laws and this doesn’t make international law a true law.

  • No Executive and Judiciary for proper enforcement and implementation of International Law.

Liberals: Counter Arguments against Criticism of International Law as a True Law

On the other hand, according to the liberals, International Law is a real law. Supporters of this school are Hall, Lawrence, Pitt Cobbett and Sir Frederick Pollock. Their views are as follows:

Oppenheim: According to him, laws are nothing but a body of rules for human conduct among a community, which might be enforced by an external power if there’s a standard consent of the community for the same. Based on what aforesaid, we can conclude that, firstly, there should be a community, secondly, a body of rule of conduct governing the community should be there and thirdly, common consent among the community for the rules to be enforced power must be present.

Hall And Lawrence: According to them, Law of Nations is treated and enforced as law, like certain kind of positive law, it’s derived from custom and precedent that form a source of  Law of Nations.

Pitt Cobbett said that International Law should rank with law and not with morality.

The liberals advance a number of arguments to support this assertion that International Law is a true law, some of their argument have been discussed below:

  • All States to some extent give acceptance to International Law

Almost all states in the world agree that, there exists some form of laws that govern the connection and activities of countries, NGOs, IGOs and of individual persons in their dealings with one another.

  • Subjects of International Law try their best to obey these International Laws.

The argument of the liberals here is that, even international law is frequently broken by some strong states, it doesn’t render law of  nations invalid in its real sense because all states acknowledge the existence of the international law to some extent and check out their attainable best to not breach these laws. When any International questions arise, States don’t rely on ethical arguments, however rely upon treaties, precedents and opinions of specialists.

  • One of the Essential of law is that wrongdoer will get Punishment

The liberals believe that international law, possesses the element of punishing those who breach it. We have seen several situations where Countries or people who have breached international laws and conventions are punished in one way or the other.

  • The General Assembly and The Security Council work as the Legislative body of International Law

According to the Liberals, there are establishments just like General Assembly and the Security Council of the United Nations who perform identical functions as the legislative body of any given country in domestic law.

  • International Law Governs and Regulates behavior of States

The liberals argue that, the peace and relative stability that has been achieved within the international arena could be a result of  the very fact that, there exist some laws that govern and regulate behavior of States.

  • International Court of Justice for International Quarrels

As per statute of the ICJ, the International Court of Justice has to decide disputes as are submitted thereto in accordance with Law of Nations. The powers and jurisdiction of ICJ aren’t equivalent to the Municipal Court however beneath some  conditions, its call can be enforced.  Article 94 of the United Nations Charter  provides that “each member of UN undertakes to comply with the decision of the International Court of Justice”.

Justification of International Law as a True Law

Most strong argument employed by scholars who believes that international law isn’t a real law is that, ‘the enforcement argument’.  Thus, international law is generally criticized on the premise that it cannot be enforced to the fullest as within the case of domestic law. This assertion to a great extent is debatable and if truth to be hold, not true in all situations because even the domestic law cannot be totally enforced at all times. Moreover, law of nations to an outsized extent is enforceable within the international system and there are several cases where powerful countries like the USA, China, Russia, etc. are sanctioned for breaching some international laws for which these countries have complied and acted in line to the rulings of international tribunals. However, in some situations, powerful countries have broken the international law without being censured or in few cases refuses to follow the rulings of international tribunals however relatively, the amount of times states abide and provide recognition to international law is far over the amount of times they breach international law without being punished.  

Conclusion

Thus, not withstanding, however, international law to a large extent is a real law, because in every scenario, there are exceptions and also the exceptions shouldn’t be accustomed to generalize the issue. This is to mention that in generally all States, NGOs and even individual persons provide recognition to the existence of international law and also the indisputable fact that, there exist exceptional situations where some few powerful countries have broken one international law or the other while not being punished, which cannot invalidate the international law. Also, the sources of Law of Nations and domestic law are not same as a result of which the two laws can not be compared.

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