International law is the predominant method that is used to organize and increasingly complex and globalised international community. However, despite this fact, it has not been easy to tackle the existing questions when it comes to credibility of the law as a legal system because of the complexity in enforcing its rules. Over the earlier centuries, most states have come up with legal rules that aim at regulating their behavior in a broad diversity of areas, which range from economic dealings to the external space (Deeks, 2016). Most lawyers in the international arena have been faced with the challenge of answering whether international law is law.For most of them, the question appears both tiresome and old. On the other hand, scholars, practitioners and theorists have not unified their response when it comes to answering whether international law is law. Those that place the notion of force at the front position in their theories oftenly face challenges when it comes to relating the legal nature of international law as a result of what is considered lack of a sound, comprehensive and recognized structure of restrictions. The view has been criticized as is considered as laying excessive emphasis on the role of sanctions and the fact that it confuses the disposition of law in the society. Some differ with this school of thought because they hold the belief that international law lacks a system of sanctions hence it can be enforced.
For most of them, the question appears both tiresome and old. On the other hand, scholars, practitioners and theorists have not unified their response when it comes to answering whether international law is law. Those that place the notion of force at the front position in their theories oftenly face challenges when it comes to relating the legal nature of international law as a result of what is considered lack of a sound, comprehensive and recognized structure of restrictions. The view has been criticized as is considered as laying excessive emphasis on the role of sanctions and the fact that it confuses the disposition of law in the society. Some differ with this school of thought because they hold the belief that international law lacks a system of sanctions hence it can be enforced.
In this regard, my argument is that international law does not exist without a proper system of sanctions that are enforceable and for that reason; it cannot be termed as law. To begin with, the argument assumes that international law lacks a credible system of sanctions. In relation to this, the assumption can be used to analyze whether this is a sufficient ground capable of negating international law as being law.
The question on whether it is right to presumes that international law lacks a reliable system of restrictions must be asked if the international law has a charge of successful enforcement procedures or not. The question of where this is immaterial to its disposition as a legal system is also an important factor.
There are certain aspects that consider international law as law. For example, when taking the example that was given by H.L.A Hart, we can assume that the enforcement of the provisions of international law are inadequate and few. In this regard, is it right to take this to signify that international law should be deprived of the aspect of being legal? Looking at the positivist school of thought taking an example of John Austin, he would give the answer of this question to the positive (Zidar, 2015). In the 19th century, he invented a theory of law which is necessitated the life of a sovereign that will in turn issue commands that are backed by punishment or sanction. International law as a law when considered does not meet these requirements, and as a result of this, Austin as well as those people who followed him regarded it like it is supposed to be referred as positive international morality.
The key concern when trying to enforce positive law lays on the person or authority that has power to give a definition of an offence, investigate whether this offence has occurred as well as issue the appropriate punishment. In that regard, it is appropriate to state that for a system to be considered as credible to issue sanctions, it must begin with a prevailing authority, which enables it to give sanctions. In the national legal system, the modification or coming up with law usually lies with the Parliament. The courts have the role of deciding whether there has been a breach of the law while the police officers have the role of enforcing the law. For international law, this creates a dilemma (Hurd, 2013). The international law in its nature has a horizontal structure unlike the municipal law which posses an upright structure of power and authority. Usually there is no group of states or a single state, which possesses overwhelming authority, but instead, power is dispersed and fragmented.
When considering the globalization process, the significance of non-state entities has increased making it hard to identify a middle point of power or authority. The decentralized horizontal structure is mused to refer to the fact that there does not exist a manifest authoritative body under the international law, which can be efficiently used to come up with law, establish when the breaches occur as well as issue sanctions.
The absence or lack of this sanctions that are centrally organized in the international law system can, therefore, create a doubt about the general legal status under the international law. This defect has been considered by H.L.A Hart. In giving his opinion on the issue, he argues that, rejecting international law as not binding due to the fact that it lacks an organized system of sanctions would ,therefore, mean that were agree to the theory by Austin on obligation and law. According the Hart, the theory creates a form of unfairness to the legal notion and not to only the international law (Aalberts, 2015). He further stipulates that the concepts of duty and obligation be destroyed. According to him, there seems to exist an external notion of obligation that seems to be predictable and which does not actually give punishment for disobedience, but rather this can be differentiated from the statement that one has the obligation to act. Because of that, it is able to reach the situation of a person from the view of rules that are accepted as having the capacity to guide standards of behavior.
According to H.L.A Hart, the distinction between the two is vital because it raises the question of the necessity of making the normative idea in relation to obligation limited when stating that rules need to be supported by sanctions that are organized in nature. Therefore, he comes up with a different argument that there exist different sources of responsibility to obey and respect the law as opposed to susceptible sanctions. In addition, when comparing between international law and domestic law, one can come up with a different source for the belief that non-existence of a system of sanction can contribute to a shaky legal status. This is in line with the key rules of obligation. An example of this is the fact that there exists a banning of violence in the municipal system. The significance of such rules in a domestic legal system is derived from the fact that there is a need to protect people who have voluntarily allowed them to be guided by law, from people who are too stupid, too weak or too wicked to obey and respect the law (Broude, 2015). The international law system needs such a system. However, because of the characteristics of the society that it is occupied by individuals, it is not likely that the implementation of a structure of sanctions would be successful with a minor risk and a higher likeliness of accomplishment in domestic law. The same notion cannot be considered successful in the international arena. Though it would be appropriate and desirable to come up with a system of sanctions, the characteristics that exist in the international arena does not offer a guarantee of low risks as well as high efficiency in a case where sanctions are to be used.
To begin with, there does not exist an assurance that violence involving states in the international arena will maintain the status of the victim and the aggressor, as it would apply in a case of murder in a domestic law set up. Secondly, because of the inequality that exists between states, there cannot exist an assurance that those who support the order will be equipped with the strength to defeat those professes aggression. Because of this, the organization as well as the use of sanctions might entail fearful risks as well as threats of them encourage a little to the natural restrictions. In addition, unless there may also exist doubts that without the police, crimes and burglaries of this nature to take place oftenly, then it would mean that the international arena boosts lengthy periods of fairly peaceful relations despite existing between injurious wars.
Because of this, it is doubtful when it is assumed that a system of sanctions is likely to serve well as well as enhance purpose in the legal system under the international arena or it would be appropriate to indicate that it would be counterproductive to come up with more chaos as opposed to order.
Fitzmaurice on the question of enforcement as well as its role in coming up with rules that are legally binding is in agreement with the fact that it is always alleged that rules of law can become obligatory owing to the capacity to implement them. In relation to this, however, he states that such a view is wrong and it should not be adopted. Rather, the reverse is what is correct. In this regard, it can be said that the law is not considered obligatory because it is enforced, but rather it is enforced because it is already binding (Liste, 2011). While considering this view, the issue of enforcement comes up and it is treated as having a preexisting legal obligation. Fitzmaurice while explaining his point also notes that when coming up with a distinction between authority and enforcement. In explain authority, he links it with prestige. For example, Akehurst acknowledges the fact that international law is rather weaker when compared with municipal law, he asserts that it is not adequate basis to question the legal status of this law.
International law lacks a system of credible sanctions. However, this claim ought to be investigated further. Some authors believe that the presence of enforceability as well as sanctions that are socially organized led to the ability to come up with a distinction between international order which is categorized as a legal order as opposed to a mere moral order.
The most famous enforcement mechanism under the international law is the United Nations Security Council, which operates under Chapter 7 of the UN Charter. The council has the permission to come up with or judge the existence of breached of peace, acts of aggression or threats to peace. In this regard, the council may come up with diplomatic, economic or military sanctions to help the situation. Diplomatic and trade sanctions take a long time to respond. In addition, their burden always weighs heavily on ordinary members in a society as opposed to the ruling class. The resort by the Security Council to use force for example in what was seen in the case of Iraq’s invasion of Kuwait, can be categorized as being quite effective as a method of sanctioning (Krisch, 2012). However, there exist doubts that surround the nature of the Security Council because it is representative in nature and these calls for the questioning of its integrity especially as a tool of enforcement mechanism. The Iraq war is a clear indication that can be used to support the notion that international law is not law. To start with, law is supposed to have a system of enforcement in order to ensure that there is peace and order. In the Iraq war, the focus was on defiance and obstructionism of the international community. The United Nations authorized the invasion of Iraq because of the possession of weapons of mass destruction. In this regard, true law cannot allow such an invasion because of the likely effects that can be created by such war. In addition, it is evident that international law is not able to enforce the law by itself because it lacks troops. Delegation of its power may create some other effects as opposed to maintaining peace and order. Therefore, international law cannot be termed as law.
The international law acknowledges numerous mechanisms that are short of the sanctions under Chapter 7. One of the most popular yet very problematic is self-help. It entails certain retaliations against the government, which is thought to have acted in breach of its legal obligations. Employing the use of force is not considered a lawful revenge unless it is authorized by the Security Council. Some of the lawful mechanisms include economic countermeasures whose main role is to pressure the governments to fulfill their parts of legal duties. However, not all measures fall under the category of international, regional and unilateral. Organizations have come up with procedures, which give room for stress to be brought against those governments that fail to comply with standards of conduct that are recognizable. Multilateral treaties especially those that fall under the field of human rights makes it vital for states to report on compliance as well as send representatives to appear before the treaty monitoring bodies in order to give an explanation on whether or not there has been compliance.
The International Court of Justice is a key enforcement organ in the United Nations. However, it can only work as a decisive organ in instances where a state is part of a dispute and the stare has accepted its jurisdiction. There is no guarantee that the courts decisions will be carried out in instances where there is no machinery enforcing them.
The sanction on the use of force is becoming less accepted in internal order, though from the present conflicts for example in Afghanistan, various members in the international community have taken part in verbally condemning as opposed to openly criticize such actions. As the use of force becomes more and more illegitimate, there is a creation of the ironic and as some authors have observed, the result is that there have been an increased control of use of force internationally but this makes international law less legal.
Therefore, when rejecting the view that international law as being law because it lacks a system of sanctions it raises some questions. However, in this regard, it would be appropriate to consider international law international positive morality as stipulated by Austin. While considering the relationship between law and morality, it can be observed that largely they lay similar rules of human conduct. Therefore, it is appropriate to indicate that international law is not law. This is because; it can only operate where there exist sanctions that can be implemented at the international level. The absence of figures in authority such as police then the sanctions cannot be put into play. Because of this, international law is not law.
In addition to this, there are various degrees of compliance under the international law. The level or degree of compliance varies from one state to another. The variance in compliance is not only limited to powerful and weak states but also applies to similar states. In this regard, authors have argued the legal system of the United Kingdom is more advanced compared tom that of Italy, with UK having a larger population, size of the economy among other factors but Italy has been seen to have issues of non-compliance in the European Union. There is also a compliance difference between weaker states in African such as Uganda, Kenya and Tanzania when it comes to anti-terrorism programs. The countries are similar due the fact that they all lie in the East African region, have weaker economies and were British colonies. However, their level of compliance differs. Because of this, it is appropriate to indicate that compliance may at times relate to such factors such as the type of regime, self-interest or the capacity of the various domestic institutions. This, therefore, means that states are able to choose on whether to comply or not. However, while considering this aspect with that of the national law, it is clear that one is supposed to comply with the set laws without the choice of whether or not to comply. The fact that one can make a decision of non-compliance or rather a weak compliance, therefore, means that it is not law but rather some form of morality, which differ among different states. Because of this, international law is not law.
When analyzing the reasons why states comply, three key theories are considered namely liberalism, realism and constructivism. The realism is by nature skeptical that formal agreements or treaties influence the behavior of states (Kaufman, 2013). The realists are for the idea that self-interest is the, main factor. The states comply with standards that are set under any international treaty because they feel that it affects them, and they would do that even if the treaty were not in existence.
The liberals on the other hand agree with the realists in stating that self-interest is key. They, however, believe that existing institutions can assist in enforcing agreements.
The classical arguments characterized by figures such as Jean Rousseau describe international law as being ineffective to limit international competition (Kaufman, 2012). The obligations that are laid down under the international arena are not to be considered as having an influence unless the interests of the citizens are in question.
However, when considering the existing notions, it is clear that the realists view is to be considered more effective in the world today. The realists conform to the idea that states compliance is based on self-interest. This is true especially because most laws are not binding. States choose whether to comply especially because most of these treaties have an option of entering a reservation. Therefore, it would not be realistic to state that a state can choose not to comply yet there was an option of entering a reservation. Because of this, it becomes relevant to state that states choose to comply because of self-interest. In this regard, the aspect of compliance introduces a feature of reservation where states are allowed to enter reservations provisions (Windschuttle, 2016). However, under the domestic laws, it is impossible to enter reservations as one is supposed to obey all laws. This, therefore, makes international law not a law but rather some form of morality where states have the option of choosing whether to obey it or not.
Lastly, the general principle on agency provides that an individual can be made liable for an international offense if the offense is on behalf of an international state. However, it applies with the exceptions of jus cogens, Genocide Convention as well as other various treaties relating to terrorism, which allows for universal prosecutions of states. An example of this was seen in the case of Paul Touvier. State agency focuses on the nature of the offence as opposed to the state of the offender. This differs from some provisions under the domestic laws, which only provides that one can only be tried if the action is an offence in the state. However, in most instances people who commit offences are deported to their states for trial. This also confirms the fact that international law is more of morality as opposed to law.
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