‘IS INTERNATIONAL LAW REALLY LAW?’
BRIGHT OWUSU GYASI
MA INTERNATIONAL LAW AND DIPLOMCY
SRN - 1304177
COURSE TUTOR- PROF. JEREMY LARKINS
Confronted with the pluralisation of the exercise of public authority at the international level and the retreat of 'International Law' as a regulatory instrument.1 International legal scholars have engaged in two survival strategies.2 On the one hand, there are international legal scholars who have tried to constitutionalise traditional 'International law', with the view to enhancing its appeal and promoting its use by global actors.3 On the other hand, there are scholars who consider any charm offensive to induce global actors that cast their norms under the aegis of classical 'International Law', a lost battle, which they have embarked on a de-formalization of international law on the basis that it not law.4 This has led them to loosen the meshed fabric through which they make sense of reality.5
In affairs of universal concern, it is 'International Law' that governs the responsibilities and obligations of each 'State', organisation or individual. In the past decade, the Globe has become even more linked with large increase in communication and technology, as well as an enhance reliance on other 'States' for resource and services.6 Despite the doubt by some prominent scholars, 'International Law' is both relevant and necessary for international partnership at every level.7 On a day to day basis, 'International Law' works efficiently with little or no cognisance by the participants and without any detectable seems. One can travel internationally, football games are broadcast globally, international partnerships are made possible, postal and electronic mails travels across borders due to the effectiveness of 'International Law'.8 Despite all this, there are scholars who hold the view that, 'International Law' is not 'Law'. This has initiated a debate among prominent international legal scholars, striving to address the hypothesis: 'Is International law Really law?'. The answers to this question will be the main focus of my essay work. In the light of this, the essay has been divided into three main sections. The first part provides an introduction to the background and outline the key term with relevant literature review. The following section will delve into the discussion 'Is International Law really Law?' , which informs my conclusion.9
According to Beckman R, and Dagmar B, 'International Law' is a body of rules and principles of general application dealing with the conduct of 'States' and of international organisations in their international relations with one another and with private individuals, minority groups and transnational companies.10
The American Law institute (ALE), Buergenthal and Murphy concurs with the definition offered by Beckman R, and Dagmar B. According to this scholar's 'International Law' is 'Law' that deals with the activities of 'States' and of international organisations, as well as some of their relations with persons, whether natural or juridical.11
I do concur with the explanation given by Beckman R, and Dagmar B, and the American law institute, this is because it provide a very concise and in death understanding of the concept of 'International Law'. These two definitions highly contradicts with the definition offered by the positivist. John Austin, defines law as a: 'Command given by sovereign, backed by threat of sanctions'.12 From the definition offered by Austin, then one will conclude by saying that, 'International Law' is not law.
However, the weakness I find with this explanation is that it is not the existence of central enforcer that determines a legal system but rather law is determine by a union of primary regulations which seeks to define 'what is and what is not'.13
Hart A, in his book entitled 'The Concept of Laws' disagree with the positivist explanation of law and argues that, 'International Law' is sufficiently equivalent to law and should be considered as such. He further asserts that, the actors in 'International Law' thus national and international tribunals, diplomats, politicians believes that, the rules encompasses the status of law and should be regard as such.14 Bull G also concurs with Hart A, and disagrees with the positivist view in addition to assertingthat, it is not the availability of enforcement mechanism that determines legal systems, rather legal systems are determine and define by rules, regulations and agreement.15
Austin J, has been largely criticise by Hart A, in his article entitled 'The Concept of Law' he disagrees with John A on his idea that, law is a command backed by threat. Hart A, however liken this idea of John A, to the role of an armed robber in the bank, and tries to draw a distinction between the armed robbers orders and legitimate laws. I concur with Hart A, on his disagreement over Austin J, this is because, per Austin J, explanation of law, the armed robber at the bank orders will become law at that particular moment of attack, since he has the powers to enforce his orders.16 Hart A, further asserts that, not all laws are coercive some laws to him are facilitative in nature. Hart A, further critics Austin A, by saying that, his description of law is improper, suggesting that, laws may have numerous sources and the initiators or makers of laws themselves are subject to the laws they create.17
According to the realist school of thought on the legitimacy and validity of 'International Law', and argue this not 'law'and the essence of a legal system that lies in its enforcement.18 This is because 'International Law' does not have a legal frame structure, such as the legislature, courts, with the authority to command sanctions and the lack of enforcement mechanism such as the police to ensure compliance, 'International Law' is not law.19 One weakness I found with the realist account on 'International Law' is that, not even all domestic laws are been enforced, and that in international relations enforcement is usually substitute with compliance.
Fisher R, disagrees with the realist view and argues that most of what we call 'law' in domestic sense are also not enforceable. He noted that, in cases where the 'State' is a defendant in a case involving constitutional law and a private party. How then will the private party enforce the judgement if delivered in his or her favour.20 This example as illustrated by Fisher R, only sought to expose the weakness in the realist view. I concur largely with the assertion made by Fisher R. Upon further thoughts, one will realise that, in instances where 'States' loses cases that involves taxes, social security benefits, just to mention a few. The 'State' only go ahead to comply by the judgement even though the private party has no enforcement authority to enforce the judgement.21 They do so by the reason of compliance which is a cardinal principle in 'International Law', based on this it will be improper for the realist to suggest that, because there is no enforcement mechanism in 'International Law' is not law. In most cases where the 'State' loses legal suits against private individuals they comply, and same can be said of 'International law'.22
Henkin L, however concurs with Fisher R, and disagrees strongly with the realist view, in his opposition to the realist view as captured in his book entitled 'How Nations Behave 'he advanced the following argument:
Almost all nations observe almost all principles of 'International law' and almost all their obligations almost all of the time23
I concur with Henkin L, assertion this is because, in domestic laws when individual win cases against the 'State'. The 'State' do comply which according to the realist makes law valid, same is been said here by Henkin L, that, almost all 'States' obeys 'International Law'. Henkin L, further advances his argument by saying that, just like laws in most 'States', 'International Law' is observed by 'States' as a national policy, shared with other 'State' under the principle of reciprocity in an effort to achieve an orderly society.24 He believes that the legality of 'International Law' has contributed in shaping the nature of international society. I do again concur with Henkin L, on his claim, this is because, international partnerships are made possible due to the effectiveness of 'International Law', the UN, world bank, international relations and foreign policies all operate in a legal framework of 'International Law'. The legality of 'International Law' shapes the nature of this organisations.25
In his response to the realist view that 'International Law' is not law because it has no judiciary, legislature, and police to enforce it decision, Henkin L, pose this question to the realist:
In a system without a world judiciary, legislature, 26 how was it thought that by embedding human rights in 'International Law' and institution you would achieve any measure of protection or compliance by 'States?27
Shirley V, concur with Henkin L, she also argues that, 'International Law' is a 'Body of Timeless Absolutes'.28 She asserts that itis good for all seasons and all places, and suggests a right approach in actual problem affairs; and further argues that, 'International Law' is 'law'. It is present a legal frame work that is portrayed as a unified system with internal coherence.29 I concur with Shirley V. This is because the legality of 'International law' has gone a long way in sustaining global peace and development.30
The proponent of the neoconservative legal scholars and their allies argues'International Law' is not really law, and according to them is because the nations who make it through treaties and conventions do not really treat it as law.31 Goldsmith J, and Posner revealed in their book entitled 'The Limits of 'International law', that even though 'States' sign onto treaties but they do not really feel bound by them.32 One limitation I found with this explanation is that, it does not provide specific evidence of non-compliance by 'State'. This is because 'States' feel bound to comply by 'International Law' for the reasons of reciprocity, reputation, sanctions and shame. Henkin L, however, disagrees with this assertion by arguing that almost all 'States' do respect 'International law' and treaties, and that no 'State' has ever admitted that its actions are contrary to 'International law' agreement or treaties.33 For example, the United States government justified their Iraq invasion on the reason of preventive self defence under article 51.34
The analytical school of jurists, marshalled by Austin J, further argues that 'International Law' is not law, because there is no such superior to command 'International Law'. In addition, theyasserts that'International Law' does not enjoy the sanction of any coercive authority35 These jurists also puts forth the idea that there is no competent courts to interpret 'International law'.36 However, I disagree strongly to this assertion by Austin J. This account of the Jurist has a variety of limitations. The claim that there is no court to interpret international law is completely false as there exist the International Court of Justice, and several courts of arbitrations which interprets 'International law'. Several individuals have been sanction, and some others convicted, including former Liberian president, Charles Taylor; the former president of Iraq, Saddam Hussein; and the former president of the Ivory CoastLaurent Gbago.37 The contemporary school of thought referred to as the 'Historical School of Jurists', however, disagrees with the 'Analytical School of Jurists', led by John A, they argue that, 'International law' is the same as municipal is law. They believe that 'International law' has similar sources and power behind it just as municipal law does, and endorse the legality of 'International law' on these grounds.38
Amato A, disagrees with the assertion of the 'The Analytical School of Jurists' marshalled by John A, he argues that, 'International law' is enforce through reciprocal entitlement violation. He asserts that, the violation of 'International law' may of the same as the entitlement, he believes that is a very effective process. 39 I concur with the account given by Amato A. this is because 'States' for the reason of reciprocity and reputation will be motivated to comply by 'International Law' so as to earn good reputation in the international arena. Amato A, further asserts that 'International law' is as effective as 'Domestic Laws'.40
According to Thomas H: 'Law is the formal glue that holds fundamentally disorganize societies together'.41 His position is that, 'International law' is not law, because 'Law': 'was a but a command of a sovereign enforced by sanction'.42 I disagree with Thomas H's assertion because not all laws are enforced by sanctions. Some domestic laws are enforced by reciprocity and the reason of compliance, using a situation where a private individual in domestic law wins a suit against the 'State', even though the individual is not a sovereign authority, and has no power of enforcement. Yet the 'States' do comply by the reason of reputation and reciprocity.43
Austin J, in his book,'The Province of Jurisprudence', however, concurs with the assertion made by Thomas H, and argues in support of Thomas A's assertion that:
''The law obtaining between nations is not positive law: for every law is set by a given sovereign to a person or persons in a 'State' of subjection to its author''44
I strongly disagree with the claims made by Autin J. My reason of disagreement is firmly rooted in the American constitution. This is because even some domestic laws, such as, the overall American constitution does not take into account any of the criteria prescribed by John A. Article 6, paragraph 2, of the American constitution:
This constitution and the laws of the 'United States' which shall be made in pursuance thereof: and all treaties made, or which shall be made, under the authority of the United States, shall be supreme law of the land.45
Turner R, however, disagrees with Thomas H, and John A, and argues that, going by the claims of Thomas H, and John A, one will conclude by saying that the United States of America constitution is not law.46 The U.S constitutional text does not categorically establish structures among the types of supreme law. In addition Turner R asserts that the United States constitution higly acknowledged treaties under 'International Law'.47 and argues again that, the U.S. constitution acknowledges 'International law' as legitimate law for the successful organisation of the international system.48 He believes that most countries, other than the United States, acknowledges treaties as law. I concur with the claims of Turner R because the 1992 Republican Constitution of Ghana, also acknowledges treaties as law.49 This in a larger sense endorses the legality and the legitimacy of international law, and according to Turner R, treaties in 'International Law' have an absolute binding with regard to their legal obligations.50
Turner R, again responded to the positivist idea of lack of sanctions mechanism in 'International law' by arguing that 'sanctions', and enforcement apparatus: 'has more to do with controversy of whether international law is effective rather than with whether 'International law' is 'law'.51 I concur with this account by Turner R, for the reason that 'International law' not been effective as suggested by the positivist school of thought, due to lack of a sanction mechanism, which has got more to do with effectiveness of 'International Law', and not the legality or legitimacy of 'International Law'.52
In opposition to the assertion made by Austin J, that 'States' do not feel bounded by 'International law'; Turner R believes 'States' respect and acknowledge 'International Law'.53 He indicates many instances where there has been a perceived breach of 'International law'. 'States' in their acceptance to the legality and legitimacy of 'International law' are quick to defend their actions on the basis of clauses from 'International law'. 54 I agree with him on this claim because there are no 'States', as I indicated earlier, have ever admitted that their actions are in breach of 'International law'. This goes to confirm the trust of 'States' in 'International law'. Having in mind the legal implication of the breach of 'International law'55, according to Turner R , Adolf Hitler's invasion of Poland, as well as Kim II Sung's invasion of South Korea was justified on the notion of 'Self Defence's coded in 'International law.56 No 'State' has ever challenged the legality of 'International law', butrather seeks to justify their action by using sections of 'International law.57 The most popular articles of 'International law' have been used bu seversal 'States',including Article 2(4) and Article 51. Tthe United States government justifies its invasion of Iraq as acting in an anticipation of preventive self-defence under Article 51 of the UN charter. The United States recognises the legitimacy and legality of 'International law' in it constitution.58
I conclude by returning to the hypothesis posed at the beginning of this study: 'Is International law really law?'. In my candid opinion International law is really law. I take strong opposition to the positivist view that international law is not law. The mere fact that some 'States' occasionally disobey some rules of 'International Law', does not mean the rules are not rules of law.59 This is because even in domestic law, some break the law frequently.I concur concur with Amato D, that physical force is not an essential requirement of law, asthe positivist would want us to believe. but The sanction argument by the positivist also falls flat60 because the International Court of Justice has been in existence for almost 50 years now. There have been instances with a lot of cases that has been tried and discharged by the International Court of Justice, notably the case involving former Liberian president Charles Taylor.61
1. John Austin,cited in,Jana Von Stein,IIntterrnattiionall Law:: Underrsttandiing Complliiance and Enfforrcementt [online]. (2010). Available from: . [Accessed 14.05.2014]
2. Henkin L,cited in,Peter Danchin,International Law and International Relations, [online]. (2001). Available from: . [Accessed 12.05.2014].
3. The American Law institute,Buergenthal and Murphy,A PRIMER ON INTERNATIONAL LAW [online]. (2002). Available from: . [Accessed 10.05.2014].
4. Shirley V. Scott,International Law as Ideology: [online]. (1994). Available from: . [Accessed 12.05.2014].
5. Hart A ,the concept of law,ISBN 0-19-876122-8 [online]. (1743). Available from: . [Accessed 18.05.2014].
6. Peter Danchin, Columbia University,International Law and International Relations [online]. (1998). Available from: . [Accessed 12.05.2014].
7. Roger Fisher,cited in Anthony D'Amato,Is International Law Really ‘Law’? [online]. (2010). Available from: . [Accessed 12.05.2014].
8. Roger Fisher,cited in Anthony D'Amato,Is International Law Really ‘Law’? [online]. (2010). Available from: . [Accessed 12.05.2014].
9. Beckman R, and Dagmar Introduction to International Law [online]. (1989). Available from: . [Accessed 10.05.2014].
10. Janet Munro-Nelson,A BRIEF OVERVIEW OF INTERNATIONAL LAW, [online]. (2009,). Available from: . [Accessed 7.05.2014].
11. Jack Goldsmith and Eric Posner,cited in,Scott Horton,Is International Law Really Law, [online]. (2010). Available from: . [Accessed 17.05.2014].
12. Louis Henkins,How Nation Behave: Law and Foreign Policy(New York: Columbia University Press,1968
13. Anthony D'Amato,Is International Law Really ‘Law’ [online]. (2010). Available from: . [Accessed 13.05.2014].
14. Thomas Hobbes,cited in,Robert F. Turner,International Law Really is Law [online]. (1998). Available from: . [Accessed 15.05.2014].
15. Constitution Of the United States,George Read,John Blair, [online]. (1787). Available from: . [Accessed 16.05.2014].
16. Robert F. Turner,International Law Really is Law [online]. (1998). Available from: . [Accessed 15.05.2014].
Bright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank
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