International law is not 'law'?

The debate whether international law should be considered law has consumed a vast amount of legal journals and books white space. Some of the participants in the debate argue that the process leading to the formation of the international law and lack of enforcement of the international law as well as lack of central law making body in international law and that it is voluntary in nature pose it not to be considered real law. Other scholars are of the opinion that international law should be considered law just like municipal law due to the reasons which will be discussed in the essay. To a larger extend, international law should not be considered law due to the above reasons which will be discussed in depth in the essay.

As international law is a body of rules that governs relations between states and other legally recognised international actors such as the United Nations, it lacks enforcement which many scholars of international law have questioned its authenticity as a law. Hobbes (2006) stated that lack of overarching authority to enforce international law is problematic as he claims that;

          “Covenants without sword are but words and of no strength. Where there is no common power, there is no law”

Morgenthau (1948) added to Hobbes observation to lack of enforcement of international law by saying that enforcement of international law is uneven in at least two aspect one of which is that grave transgressions attract no response whereas minor no compliance may solicit severe sanctions like in the case of the building of nuclear weapons by both Iran and North Korea resulted in severe sanctions on the two countries whereas Israel and India did not receive condemnation or punishment for the same offence.

Morgenthau (1948) stated that there is no uniformity in the application of international law as the strong are much more likely than the weak to escape reprisals as enforcement is not a matter of international law but of national interest and the distribution of power. The invasion of Iraq and Afghanistan  in 2003 by the United States and United Kingdom who had an agenda that the attack was necessitated by the need for humanitarian intervention after Saddam Hussein had used chemical weapons to destroy the Kurds and  the invasion of Afghanistan was also necessitated by the cause of a military intervention on the basis of jus cogens to uphold terrorism hence it was consistent with the United Nations Charter while other states disagree that the invasion was made on the need for national interests and distribution of power by the two countries and the two countries escaped scot free. In this view, it implies that international law is not really law as it lacks the enforcement unlike the municipal law where the perpetrators of the law are brought to book without hesitation.

The other cause of for international law is that international law lacks a central law making body and that it has to rely on sources of international law such as treaties make international law to be disputed as not a real form of law. There is no supreme law making body like in the formation of a municipal law where the parliament is responsible for making of the law while the judiciary is responsible for the interpretation of the law to determine its constitutionality of the passed law in the parliament. The General Assembly of the United Nations is not a law making body and so its resolutions are not legally binding. A look at the treaties as a source of international law clearly indicates that international law is not really law. Treaties are conventions which are set out in writing what has been agreed among states but the problem with treaties are that even when the treaties enter into force it only binds those states that have given explicit consent to be bound. Further to that is the fact that even if a state does eventually ratify a treaty, they can reduce its impact by attaching unilateral statements which purports to exclude or modify the legal effect of certain provisions of a treaty in their application to their municipal law (Briely 1963). A good example of the dilemma which the treaties encounter in their adoption into municipal law is the Convention on the Elimination of All Forms of Discrimination against Women of 1979 (CEDAW). This Convention has been ratified by several Islamic states but the subject so far had so many reservations as the Muslim women are discriminated against by their husbands as there are allowed to walk in public with a male counterpart and in Saudi Arabia, women are not allowed to drive and this shows that although these countries had ratified but they made reservations contrary to the objective of the said treaty. This then shows that the source used in the making of the international law pose it not to be treated as a genuine law as it lacks uniformity and equality to treatment by the member states of the international community.

Customary law is one of the major source of international law and this source is also another reason why scholars of international law have discarded international law as a real form of law. Customary law emerges from patterns of behaviour among states and the behaviour patterns are referred to as practice. The problem with this practice is the fact that how widespread the practice must be in order to be considered a practice that could be adopted as an international law. The other problem with the customary law is the fact that how long does it take for a practice to be considered an international law (Pritchard 1996). This then paint a picture that customary law is vague and open to conflicting interpretation because if perceived interests of certain states or group of states change, so will their attitudes towards customary international law and a particular rule may be challenged hence the reason why international law is not considered as a real form of law.

The sources of international law had been a subject of great debate and the third source of international law which poses a danger to the acceptance of international law by the international states is the source of the general principles of law which are used to close the gap left by both the treaties and the customary law. General principles are established by comparing national legal systems which are considered as civilised and any principle common to all or most of these systems, may be applied also in an international law context for example the principle of protection of acquired rights. The problem which arises as to the application of the general principle is that nobody can possibly compare all domestic legal systems and the only practical solutions often found by studying some of the leading representative systems of law such as the legal systems of United States of America and the United Kingdom which might not be suitable to other weaker and middle powerful states (Shreurer 2011).

The fourth source of international law which is writings of jurists also is another point of divergent on the debate as to whether international law should be considered a real form of law as this form of international law is open to criticism as jurists rarely agree even on supposedly settled rules. As international relations arena had a proliferation of interpreters, this then exacerbates international law’s problem of ambiguity and depriving international law of solving disputes authoritatively hence many scholars consider it not to be a form of law (Hart 1961).

The most disagreed fact about the international law is that it is voluntary in nature as it had to rely on the consent of the states to be bound by its laws and in other circumstances the states may chose to ignore their obligations and may evade with impunity. Keohane (1984) stated that states oblige with the international laws such not to commit genocide not just because there is a law prohibiting genocide but rather that because these nations have no interest in committing genocide or that they will lose more than they would gain from doing so hence compliance with international law is in fact just coincidence of interest. The International Criminal Court enforces its arrests warrants exclusively through the cooperation of its member states and this pose the danger as to the authenticity of the international law a real form of law on which states have to rely on. As for example on 21 July 2010, Omar Al Bashir, the President of Sudan visited Chad and was welcomed by the Chadian President Idriss Deby and he was not arrested despite the fact that an arrest warrant was issued on him by the Argentinean Prosecutor to the International Criminal Court Luis Moreno Ocampo. The African Union states have endorsed that there were not going to adhere to the International Criminal Court decision and former African Union Chairman stated that;

            “It seems Africa has become a laboratory to test the new      international law. It is unfair that all those indicted by the ICC so far are from Africa” (Barnes 2011).

For a law to be an effective form of law, there is no need to require consent from the states but every participant need to be compelled to adhere to the agreed provisions and any deviation from the stated agreed facts and provisions will result in a heavy hand of the law descend on them and it is from the discussed facts that the international law seem to be  just a paper work written only for those states which choose to adhere while those which do not want to abide to it are at liberty to do so hence international law is not law.

To a lesser extent, international law should be considered a real form of law because without international law there was no control on the behaviour of the states both in their relations with other states like the law which prohibits the use of armed force to settle disputes has been effective as states choose to abide to it without any compulsory monitoring mechanism. Hobbes (2006) stated that the international community had no central authority, divergent views, values and perspectives of individuals in an anarchical state of nature would make it impossible to coordinate any legal order hence the important of international law. The second aspects played by the international law is that it deals with states’ own nationals like in the case whereby the state fails to uphold the human rights of its citizens and hence international law bridged that gap left by that state by compelling the state to respect the rights of its citizen as for example the recent indictment of Kenyan President Uhuru Kenyatta and his deputy President William Ruto by the International Criminal Court for crimes against humanity committed in the aftermath of the December 2007 elections violations where the two are blamed for inciting their supporters to kill their opposite supporters and this then shows that the international law should be viewed as a form of law (Mullersan 1989).

The fact that international law is not enforced is an over exaggerated impression. It should be pointed out that international law is enforced as for example on April 26 2012, the former Liberian President Charles Taylor become the first former head of state since the Nuremberg trials of Nazi leaders after the First World War to face a verdict of aiding and abetting crimes against humanity and war crimes during the country’s brutal armed conflict from 1991-2002. He was arrested on 26 March 2006 and six years passed by and the Special Court of the International Criminal Court passed a verdict that he was supposed to stay behind the bars for an effective 40 years (Lauterpacht 2013 ). This show that international law is enforced hence should be considered a real form of law.

The fact that international law is not enforced does not mean that it is not law but what is of main concern is the fact that it should be generally regarded or accepted by the community to whom it is addressed to (Grotius 2004). In other words, the validity of law may depend on the way it is created and the fact of enforcement may be a reason why individuals obey laws. In international law, the fact that the rules came into being in the manner accepted and recognised by states as authoritative is enough to ensure that law exists just as in the domestic law where someone who steals may not be arrested, but that does not mean that there is no law in that country (Hart 1961).

States have continued to adhere to the obligations of the international law despite the fact that there is no enforcement and that there is a voluntary nature in the compliance to it. Ellen Johnson Sirleaf, the current President of Liberia handed over Charles Taylor to the International Criminal Court for war crimes and crimes against humanity and while Thomas Lubanga was also handed over to the International Criminal Court. This then shows that international law is really law as states abide by the treaties they signed for (Barnes 2011). 

In conclusion, it should be pointed out that the international law favours the most powerful states over the weaker states which create no compliance from these states while the weak states are compelled by these strong nations to obey this international law. For a law to be considered a real form of law, there is need for an international rule of law to be observed by all states and all should be treated fairly. But this should not be laboured as to create an impression that international law is not a real form of law as it is the one which dictates relation and orderliness in the international relations as its absence would have created a tyrannical world where each state was at war against all trying to map out their difference.

References

Grotius, H (2004) On the Law of War and Peace. Whitefish MT: Kissinger. Originally published in 1625.

Hobbes, T (20060 Leviathan. Cambridge: Cambridge University Press.

Keohane, R (1984) After Hegemony. Cooperation and Discord in the World Political Economy. Princeton: Princeton University Press.

Morgenthau, H (1948) Politics among Nations. New York: McGraw Hill.

Barnes, G (2011) The International Criminal Court’s ineffective enforcement mechanisms: The Indictment of President Omar Al Bashir. New York: Ford International law Journal Vol 34, Issue 6 article 4.

Briely, J (1963) The Law of Nations: An Introduction to the International law of Peace. Oxford: Claredon Press.

Pritchard, R (1996) Economic Development, Foreign Investment and the Law.

Schreuer, C (2011) Sources of International Law: Scope and Application. The Emirates Centre for Strategic Studies and Research.

Hart, H (1961) The Concept of Law. Oxford : Oxford University Press.

Mullersan, R (1989) Sources of International law: New Tendencies in Soviet Thinking.

Lauterpacht, H (2013) The function of Law in the International Community. Oxford: Claredon Press.