It is one of the most controversial topics of all time, whether international law can be recognized as true law or not. There are two schools of thought regarding this argument; the realists and the liberals. The realists argue that international law is not a real law whereas the liberals say international law is law. Both of the schools having various scholars have come up with advanced arguments over the years or decades. However, this article is an attempt to answer this debatable issue by supporting only one view of schools.
It is argued that international law is not the command of the sovereign; so it cannot be law. It is not clear where this law comes from.
International law does have a source, which we can find in Article 38 of the Statute of the International Court of Justice (treaties, international customs, general principles of law, judicial decisions, and the teaching of most highly qualified publicists).
The traditional view is that law comes from the command of the state (Austin’s view, to be specific). In reality, this idea of sovereignty or supreme authority is for domestic law. When we are dealing with legal issues within the territory of a country, only then does this idea of sovereignty or supreme authority come into play. When we are dealing with international issues, they are broader than the domestic issues. The subjects here are mainly states and other international organizations as well as individuals depending on the case; not just individuals of a state and the state itself. It is logical that there is no possibility of having such supreme authority in such a broader sense.
International law is different from domestic law. It is now an acceptable view that the binding effect of international law can be found in the conduct and consensus of states, although there will always be some restrictive principles binding on all. If we acknowledge the fact that consent’ whether by treaties or by the behavior of the states, determines the binding effect, then there can be no confusion as to the nonexistence of a supreme authority to bind all the states by international law.
Another popular argument is that it cannot be enforced in the truest sense because of the states’ will and also because some states have superpowers. So without being actually enforced, it cannot be said to be a real law. International law does not entirely depend on the consent of the states because there will always be some constraints. For example, a state cannot just invade another state. Moreover, there are some international treaties that are binding on the states, they agree and accept to abide by these treaties for their welfare. If any country violates a treaty, other parties to that treaty can call for actions that can be threatening to that state. Even if a state does not ratify a particular treaty and does anything violating the treaty, some measures against the state can be taken. There are some methods to enforce international law which are;
In case of a breach of peace, the role of the UN Security Council by taking measures under Articles 41 and 42 of the UN Charter.
Judicial Enforcement when international disputes or armed conflicts arise
Loss of Legal Rights & Privileges by terminating diplomatic relations, freezing of assets, etc. However, sometimes domestic laws are also not enforced wholly or partly especially by the state itself. However, non-enforcement does not mean that the law ceases to be a law.
The state decides which part of the law to enforce and what not, like the enforcement of international law, the binding effect on states depends on the consent of the states; the same happens in the case of domestic law as well. So this argument about enforcement in comparison with domestic law is itself debatable. The rule of law is always present, even when a state does not enforce a judicial decision, or a country known to be a superpower is irresponsible. So we cannot rule out the enforcement of international law.
Some case laws can be mentioned here: In 2015, three church leaders were jailed without a fair trial in China. In 2017, the UN claimed that China should release them with compensation as it was a clear violation of their rights recognized under international law. Though China was not legally bound by it, the government did comply with it and acted accordingly.
In July 1998, one of Iran’s Flight planes was shot down by a US Navy ship, killing 290 passengers. Iran sued the USA in the ICJ for compensation, arguing that by this act the US had violated the 1971 treaty to prevent acts of violence against civilian airliners. It was a breach of international law, and thus the USA had to pay compensation of $100,000 to $250,000 to the families of the dead.
Lastly, in this regard, the case of Gambia against Myanmar can be an excellent example. On November 11, 2019, Gambia filed a case against the government of Myanmar in the International Court of Justice for committing genocide against the Rohingya people and for violating the Genocide Convention. Gambia is not directly affected by such crimes, but it is a party to the Genocide Convention, which Myanmar has ratified, and Gambia, by fulfilling the criteria, was able to sue. Later, the ICJ ordered the government of Myanmar to take certain actions to protect the Rohingya via “provisional measures” while the case proceeded. This was the first effort in court to hold the country responsible for genocide. What is more interesting is that this case has proven that the smallest country can take action against a larger country in an international court to seek justice. So we can say the skepticism of enforcement of international law is now futile, and no state is above law.
International law is not how we are used to conceptualizing it as an ‘ideal’ or ‘standard’ type of law. We cannot acknowledge a particular set of rules as a standard form of law because law is something that cannot be perceived as a standard form. This is why international law and domestic law have different natures, and by acknowledging any one of these, we will definitely end up in a doubtful position. Also, the force of the law has little relation to the law’s existence, for there can be states with fewer violations that do not have to enforce that much; which does not at all prove that the state has no law. The question of enforcement may only arise when the questions of ‘right’ and ‘legal remedy’ arise. Whenever there is a breach of the peace or any dispute regarding trade between states, enforcement may happen. To accept international law as law, we therefore need to broaden our perspective and come out of the age-old ideas of positive law.