Analysis of International Law - Essay Example

International law Introduction: International law regulates the relationships between various nations, where a strong political element underlies such relationships. The traditional view of international law is that advocated by Hall1 as a series of rules of conduct which are adhered to by civilized nations as if they were laws formulated in their countries. As a result, modern international law is a comprehensive legal system to structure society, wherein the legal rules are formulated based upon political, social and cultural processes and are the result of a consensual opinion and agreement among States. This underlying principle of international law is however opposed to the positivist theory of law that was advocated by John Austin, in which the existence of a sovereign body that formulates laws actionable within a particular jurisdiction is a vital element. Natural law theorists who focus upon morality may offer better scope for international law, since morality can form a basis for consensus among all nations. Similarly, American jurisprudence advocates law as a decision making process that also incorporates the social and political context, hence it may be more applicable to the consensual framework mandated in international law. Analyis: Westlake defines international law as “the body of rules prevailing between states”2 According to Jennings and Watts, such rules of international law are “legally binding on states in their intercourse with each other.”3 In modern times however, the scope of international law has expanded beyond the mere relations between states, into the sphere of individual international obligations and international rights. The United Nations has evolved as an international body that carries out the function of governing relations between individual states. In 1949, the International Court of Justice clarified the role of the United Nations as “a subject of international law and possessing international rights and duties..”4 International law is enforced mainly through withdrawals of international rights and privileges5 and in extreme cases, through the use of force.6 As a result, modern international law can no longer be defined solely as the body of rules governing the relations between states. As articulated by Jenks, the scope of international law “represents the common law of mankind in an early stage of development, of which the law governing the relations between the states is one, but only one major division.”7 Through the element of enforceability that imposes obligations upon States, and is expressed through treaties and other agreements, international law also encompasses individual rights and obligations as a part of an international community. The philosophy of John Austin: From the above, it may be seen that international law is viewed as a set of rules of conduct that govern the relations between nations – the development of a framework of common law that incorporates political, social and cultural elements of the various nations. However, the positivist theory of law as propounded by John Austin rises in conflict with this basic principle of international law. The legal basis of international law itself becomes questionable when positivist principles are applied. John Austin defines a law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”8 His views are in accordance with those of Jeremy Bentham9 who states that every legal norm needs to constitute a threat that is backed up by a sanction; therefore coercion is an essential feature of the law. Within a domestic framework, the authority of a framer of laws and the enforcer of laws may remain unquestioned and therefore possible to execute, however in an international framework where the territorial sovereignty of nations is involved, the sanction element of law may be indeterminate. One of the notable proponents of the positivist system is Hart, whose view of a legitimate legal system is one where two significant elements must exist : (a) a legislature court with properly defined jurisdiction (b) a proper sanctions system.10 Austin defines laws as “a species of commands”, as a result of which every law that is positive and actionable is to be set by “a given sovereign to a person/s in a state of subjections to its author.”11 While this principle works very well within the boundaries of a particular State, wherein the laws are framed and regulated by authorities within that particular state, the same cannot be said of international law. The rules of international law are formulated on the basis of a consensus among nations; according to Austin it is “set by general opinion” rather than by a sovereign authority recognized by the entire international body. Rosenne clearly spells out this distinction between the manner in which international law is formulated as opposed to domestic law, by stating that “international law is a law of co-ordination, not, as is the case of most internal law, a law of sub-ordination.”12 On this basis therefore, positivist principles as advocated by Austin arise in antithesis to international law. The law as visualized under the positivist approach spells out the development of a clear framework of rules that are mandatorily imposed upon the citizens residing within a particular legal jurisdiction. However, there is no specific authority that can replicate the role of the Sovereign body that formulates rules to be obeyed, in the international community. The United Nations may at best be described as a body regulating the relations between States through the employment of a consensual and diplomatic approach. For example, the role of the Security Council, which is the most important body in the United Nations, is to maintain international peace and security rather than to enforce the law13. In the event there is a conflict between domestic and international law, the jurisprudence of one or the other is not clearly defined. When disputes arise in the international arena, the solution often lies in arbitrated or mediated solutions where third parties may also be brought in to arrive at a solution that is acceptable to all parties and produces an equitable outcome. For example, in the case of the Greenland-Jan Mayen case14 that involved a dispute on maritime delimitation and boundaries of fishing zones, the ICJ did not function as a sovereign legislature court with the power to impose its decision upon the disputing nations. Rather, it utilized customary international law, as derived from situational circumstances to mediate a settlement between the two countries. The basic sovereignty of the two nations was not undermined, rather the Court recommended an adjustment of boundary lines after taking into account all factors that would produce an equitable outcome agreeable to both parties. Therefore, the mandatory and punitive element that is present in domestic law, which functions as the factor enforcing obedience, is absent in international law, where no clear authority to formulate law exists in the form of one particular body. Enforceability remains an issue resorted to only in rare instances; the use of unilateral force15 was generally prohibited to mandate compliance with international law.16 As a result, even in instances where the unilateral use of force may be justified, the provisions of Article 2(4) of the UN Charter limits the scope and duration of the use of force. The limiting factor in so far as enforceability is concerned is the territorial integrity of individual states which interferes with the issue of clear jurisdiction available to Courts. Jurisdiction is mandatory under the positivist views advocated by John Austin, however the ambiguity of jurisdiction existing in the international arena restrict the extent of compliance through the threat of punitive action and the use of force. Higgins points out17 that although self defense could provide justification for a State to resort to the use of force, the inherent ambiguity in interpretation of legislation specifying when such action is justified, is itself a limiting factor. Another significant aspect that forms a part of the positivist theories advocated by John Austin and given shape by Hart, lies in the rule of recognition. According to Hart, a full blown system of law must be equipped with more than mere rules, since these are only “concerned with the actions that individuals must or must not do”, while secondary meta rules that have the primary rules as their subject matter help to “specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”18 Thus, while primary rules spell out the obligations of the individual, secondary rules help courts to resolve disputes over the application and interpretation of those primary rules and may therefore be classified as rules of recognition. However, where interpretation of the rule of law is concerned, such functions are carried out while taking into account the political, environmental and cultural context of the particular country where the law is framed. Judicial interpretation will therefore depend upon and be conditioned by the content of the legal environment within which it operates, where an underlying system of rules have been developed based upon a collective social consciousness. As explained by Raz, “Many legal systems recognize that both rules and principles can be made into law or lose their status as law through precedent.”19 This is precisely the aspect that leads to the judicial law-making function, since existing laws can be over-ridden or new laws mooted through the precedent established by judicial decisions, especially since such decisions will be conditioned by rules prevailing in the societal context existing when the judgment is given. Within an international context however, the development of clear secondary rules of recognition will be a problem, according to the positivists. The social, cultural and political framework may be very different in different countries, thereby making the function of judicial interpretation in accordance with the rules of recognition, a difficult and cumbersome task. The same social rules may not apply in every country and this makes the judicial function of enforcing international law a task fraught with ambiguity. The natural theorist view: However, the positivist views mooted above by John Austin and Hart have been opposed by proponents of natural law, for whom law and morality are linked. Dworkin rejects the social rules basis of Hart’s rule of recognition and states:“…two people whose rules differ ... cannot be appealing to the same social rule, and at least one of them cannot be appealing to any social rule at all."20 In pointing out the conflicts that arise in an application of social rules to an interpolation of national and international laws, Dworkin points out that Hart’s qualification about his rule of recognition being flexible at some points, in fact undermines his theory. “ If judges are in fact divided about what they must do if a subsequent Parliament tries to repeal an entrenched rule, then it is not uncertain whether any social rule [of recognition] governs that decision; on the contrary, it is certain that none does.21 While judicial function is strictly restricted to interpreting the existing law, judicial activism has in fact resulted in some instances where the precedents set by judicial authorities have become the law through continued application via established legal precedent. The positivist view supports judicial interpretation within the context of the rules of recognition, as the basis of establishing the validity of the law, therefore international law may be limited in this aspect. American jurisprudence: However other theorists have supported the validity of international law and the recognition that exists, of a system of legal rules. Henkin21 contends that “almost all nations observe all principles of international law and almost all of their obligations almost all of the time.” McDougal’s policy oriented approach views law making as a process of decision making rather than a system of legal rules and obligations as spelt out under the positivist system.22 This approach therefore posits international law as a part of a diplomatic and political process rather than the analysis of rules advocated under the positivist approach. Therefore, when the positivist approach advocated by Austin is applied to international law, the adherence to rules and the development of a limited social framework that forms the basis for secondary rules for cognition, makes it the antithesis of international law. In the sphere of international law, the social context is much more broad based and the punitive element of the law must of necessity be driven more by a diplomatic and conciliation process for adjudicating disputes rather than being derives from primary and secondary rules. Conclusions: On the basis of the above, it may be seen that Austin’s positivist principles appear to be relevant within the limited domestic framework. The mandatory requirement for specific jurisdiction and the punitive element that ensures compliance through laws set out by a sovereign whose authority is undisputed, are both factors that are antithetical in the sphere of international law. The legal framework governing the relationships between nations must take into account the territorial integrity and sovereignty of individual nations, therefore a punitive use of force to ensure compliance cannot easily be executed. The question of diplomacy, arbitration and conciliation in arriving at an equitable outcome for all parties is an inescapable part of international law. The diversity in social contexts that make it difficult to interpret the underlying secondary rules of recognition, mandate the application of a broader, more diffused framework of law. In this context, the proponents of natural law theories such as Dworkin or of American jurisprudence such as McDougall and Lasswell may be more relevant and applicable in the field of international law. Natural law theorists focus upon the moral basis of the law, in which area a common international focus may exist, thereby making it possible to derive common grounds and principles to set our legal agreements between nations. Similarly, the incorporation of the decision making process and the political context as advocated by American jurisprudence may be more relevant in international law, where political context is an inescapable part of adjudication of disputes among nations. Read More