The framework of international law can be traced to the Spanish philosopher Francisco Victoria who developed the argument that, the Indians should be grouped or classified as a nation of its own and war against them can only be justified on the basis of a just cause. Professor Suarez is also took the stance that “the obligatory character of the international law also known as the law of nations was based upon natural law while its substance derived from the natural law rule of carrying out agreements entered into”. International law can be defined in the light of the words of Sir Frederick Pollock where he says that … “The only essential conditions for the existence of law are the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity. International law satisfies all the above and hence it is law”. However, Harris on the other hand posits that “International Law will never play a really effective part on international relations until it can annex to its own sphere some of the matters which at present lie within the ‘domestic jurisdictions’ of the several states”. The lack of adequate enforcement and sanction mechanism in international law as against municipal law is what has been the bane of international law. It is one of degree, and not of kind. At the heart of this essay is an evaluation of whether or not international law should not the seen as law with the aid of comparison.
First and foremost, a proper assessment of whether international law should be seen as law or not begs the question; what is law? Law according to Shaw is “the element which binds the members of a community together in their adherence to recognised values and standards”. Law can also be said to consist of an executive, a legislature and the judiciary. In light of this, Fredrick Pollock is of the position that, international law indeed is law because it possess a political community and has recognition by its members. Madziwa demonstrate an example in his article where in regards to the standard set by Pollock, “a political community exists though there may be serious political, economic and cultural divisions”. He further includes that “the international legal order has a body of rules and principles it is made up of, and members who recognise and are binding by these rules and principles” as such international law should be considered law. However, another school of thought is of the opinion that this standard is the very reason international law should not be seen as law. They posit that the standard and even the general definition of law and its subsequent characteristics does not fit this model, because, there is no legislature to keep the law abreast of new needs in the international society. the general assembly of the United Nations comprising delegates from all the member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. There is no system of courts. Although there exist a convenient machinery for the arbitration of disputes and a standing court of justice, the range of action is limited because resort to them is not compulsory. The International Court of Justice does exist at the Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with.
Kelsen presents he argument that “international law is true law because, broadly speaking , it provides sanctions , such as the adoption of reprisals , war , and the use of force generally , and makes the employment of these sanctions lawful as a counter-measure against a legal wrong , but unlawful in all other cases…”. Also there is the argument that “law is law and as such international law is law” and that its subsequent question of whether or not the law is being obeyed should not vitiate the validity of the law and should be treated separately. Even though there exist the problem of violation which sometimes seem to go without sanctions or punishment, especially when violated by a state with majority power, it should not be basis to say or conclude that international law is not law or lacks credibility and it has a judicial system in the form of the international court of justice (ICJ) which handles disputes. On the other hand, the very composition of the international community makes international law as though ‘dead’. Within the confines of the municipal law, all persons are equal before the law (at least in most ‘civilized countries). However on the international arena, aside the issue of obedience of laws, permanent members of the UN Security Council cannot be sanctioned when they go against the rules. Powerful countries do not enforce rules or principles unless it is in their interest to do so. All these should be enough to vitiate and negate the potency of international law. Firedman suggests, “The national interest of the defaulting state in continued participation must be at least as great as that in the course of action that caused it to default for such a sanction to be effective. When Indonesia withdrew from the UN in 1965, it left those United Nations specialized agencies from which it did not have much benefit” but remained a member of the World Health Organisation which was conducting a malaria campaign in Indonesia at the time.
Aside the definition of law, it may be pertinent to look at international law vis-à-vis municipal law in order to ascertain whether international law is law. Municipal law governs and sanctions individuals, inclusive of body corporates. Municipal law does not need the consent of any citizenry to subject such an individual to the dictates of its law. International law however, has to contend with the element of ‘Sovereignty’ of its member states. This has made it quite difficult for international law to execute swift judgments and sanctions as the consent of conflicting parties have to be sought before and action is taken (Article 59 of the statute of the ICJ). According to Harris. “The restricted range of international law is merely the counterpart of the wide freedom of independent action which states claim in virtue of their sovereignty”
In a more closely related point to the above, the hierarchy of command also accounts for the fact of whether international law is law. Municipal law has a vertical command which makes it rules binding. International law however, has a rather horizontal command, “No state or group of states has absolute power, and instead, it is fragmented and dispersed. Under the process of globalization, the importance of non-state entities has augmented and it is increasingly difficult to locate a central point of authority or power. This decentralized horizontal structure essentially means that there is no clear authoritative body in international law that can effectively create law, determine breeches and sanction accordingly”, thus its rulings and laws are not positively binding on its members, it differs from case to case and with the inherent parties, involved.
In addition, the sources of a law gives a degree of certainty to the legal process because one is able to tell when a proposition has become law and the necessary mechanism to resolve any disputes about the law is evident. It reflects the hierarchical structure of the national legal order. International law is however not same. There is no single body able to create laws internationally binding upon everyone, nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and the law as can be seen in municipal law. By ‘sources’ one means these provisions operating within the legal system on a technical level, and such ultimate sources as reason or morality are excluded, as are more functional sources a such as libraries and journals . What is intended is a survey of the process whereby rules of international law emerge. Article 38(1) of the Statute of the International Court of Justice is widely recognized as the most authoritative statement as to the sources of international law.
Although this formulation is limited to the sources of international law which the international court must apply, since the court is to decide disputes submitted to it in accordance to international law and also since all member states of the UN are ipso facto parties to the Statute by virtue of article 93 of the UN Charter (states that are not members can specifically become parties to the Statute of the Court :example is Switzerland until it joined UN in 2002), it is therefore clear that this the provision expresses a universal perception as to the enumeration of sources of international law.
The above discussions notwithstanding, there has been the argument that this whole topic should be a question of international law being weak either than it not being law at all and that even beyond that, the weakness of the law can be traced to the perpetrators themselves either than the law in actual sense. Kleinfeld emphasises this by his statement, “I see international law as a very good piece of music being played by some very bad orchestras”. The position here is that, international law is just weak law because of its inability to enforce rules and principles which are often violated with no consequences to the perpetrator who by the way have been observed to be those in superior power or the dominating states. Though the ICJ exits as a body to adjudicate matters, it only has jurisdiction over disputes where both parties involved decide to confer authority or submit to the court. Thus international law is law. One can also add that international law has made some significant progress and thus can be said to be law. Whether it has failed or not depends to a large extent on what we assume to be its aim. First, “International law has been able to help member states carry on their day-to-day intercourse along orderly and predictable lines”. This is a role that states chose and once it is performing that, then it can be said to be law. Also, international law is law, because it has helped to regulate the activities of geo-political and economic blocks, much to the advantage of its members than would have been some few years ago.
Furthermore, the ideology of enforceability of laws as a vitiating factor for international law according to D’Amato, is over emphasized and exaggerated. Even in a domestic sense or setting, where there exits policemen and soldiers to aid in enforcing rules and principles, if the law were to strictly assign a police and soldier(gun pointers) to ensure that people know and obey the laws, there would not even be enough gun pointers, as he refers to them. He raises the question of “what if these gun pointers themselves do not know which rules to enforce, and subsequently, who would make sure that the gun pointers have ensured that the rules are enforced?” That would mean an extra expenditure on what in practical and in cliché terms is referred to as “who watches the watch”. This will eventually burden the system and consequently, cause a total breakdown.
Summing this up, there seem to be more agreement with the position of the question than otherwise, taking into consideration the counter arguments though, which include; enforceability being over emphasized, separating obeying the law from the actual law, looking to the aim of the law, it rather being weak law, and so on, it appears that the stance of the various rather seemed to be based on some sort of assumption especially taking into consideration the point about enforceability where they say “what if the policeman does not know which law to enforce” how can an officer of enforceability lack knowledge about the law? In addition they also contain loop holes because in actual fact, what is the essence of a law if its enforcement and sanctions are not effective? Also, indeed if an ideology is not generated from a valid source or cannot prevail when compared to law properly so called, then it should not be seen as law.