Author: Amitabh Robin Singh, Research Associate
International law has been defined in many ways be many people but the three prominent scholars whose definitions carry the most weight are: the German jurist Lassa Francis Lawrence Oppenheim, James L. Brierly and Joseph Gabriel Starke, the Australian scholar. At the very outset of this piece, we will look at how these three scholars have defined international law or the law of nations.
According to Oppenheim ((Jayaprakash Kakada, What are the drawbacks of the definition of international law given by L. Oppenheim?, (July 10, 2013, 12:25 PM) http://www.preservearticles.com/2012011020419/what-are-the-drawsbacks-of-the-definition-of-international-law-given-by-l-oppenheim.html)) international law is “Law of Nation or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their relation with each other.”
J.G. Starke ((This definition is an adaptation of the definition of International law by the American authority Professor Charles Cheney Hyde))defines international law as, “That body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, an therefore, do commonly observe in their relations with each other…”
He goes on to describe international law as:
- The rules of law relating to the functioning of international institutions or organisations their relations with each other, and their relations with states and individuals and
- Certain rules of law relating to individuals and non-state entities so far as the rights or duties of such individuals and non-state entities are the concern of the international community ((I.A. Shearer, Starke’s International Law 3 (1st ed. 2010).)).
J.L. Brierly’s definition is as follows:
“International Law may be defined as “the body of rules and the principles of actions, which are binding upon civilized states in their relation with the one another ((J.L. Brierly & Humphrey Waldock (Ed), The Law of Nations (1963).)).”
As we can see from perusal of these three celebrated definitions, all of them use the terms “binding” or “bound”. Hence we can see that these three scholars intended for international law to be “hard” and binding on the international community. Alas, that principle has not held firm against the tides of politics and the might of the superpowers. The author will discuss more on this in the coming pages.
He says “consent cannot of itself create an obligation; it can do so only within a system of law which declares that consent duly given, as in a treaty or a contract, shall be binding on the party consenting.” ((Brierly, Supra Note 4 at 2))Therefore, there is a theoretical hole in this positivist concept of obligation despite its simplicity, popularity and intuitive plausibility. It cannot explain why international law is binding as law.
Brierly opined that international law had its genesis from the European nations who were conscious of their common Christian background and common history from the Roman and Greek civilisations. Brierly was against the school of thought that said that international law is a branch of ethics and not a law. He was of the opinion that if it were simply international morals than what the other moral are and ethics used in the conduct of relations between states ((Brierly, Supra Note 4 at 2))?
An example of this would be the non-binding nature of international comity, which comprises of the act saluting the flags if other countries warships while at sea ((North Sea Continental Shelf cases, ICJ Reports, 1969, p. 44; 41 ILR, p. 29)). These are not binding obligations, no sanctions will be imposed if these codes of morality or ethics are violated, they are performed out of mere courtesy
In the author’s opinion, Brierly’s most eloquent case for international law being a law in a true sense is when he stated that every state acknowledges the existence of international law and knows that it has an obligation under international law. He went on to state that a nation may violate international law as an individual would violate municipal law, but the state would not claim to be above international law as an individual would never take the defence of being above municipal law ((J.L. Brierly, The Outlook for International Law 5 (1944).)).
Even the United States of America, which is often accused of being contemptuous of International law tried to adhere to international law during the raid in Pakistani territory that killed Al Qaeda founder Osama Bin Laden. Due to the fact that America was not at war with Pakistan, the U.S. transferred the soldiers used in the raid from the military services to the civilian Central Intelligence Agency (C.I.A.) to adhere to the norms of the law of nations ((Kimberly Dozier & Robert Burns, “Raid raises question: Who’s soldier, who’s spy?”. Fox News.Associated Press. (July 10, 2013, 12;40 AM) http://www.foxnews.com/us/2011/05/05/raid-raises-question-whos-soldier-whos-spy/)).
Hard Law or Soft Law?
Hard law when used in the context of international law refers to legally binding obligations that are precise (or can be made precise by adjudication) and that delegate the authority to a body for interpreting and implementing the law. This hard law helps reduce the transaction costs of states and strengthens the credibility of their commitments ((Kennoth Abbot & Duncan Snidal, Hard and Soft Law in International Governance, 54 (Summer 200).)).
Soft law may be defined as “non-binding instruments”. This characterization is not entirely wrong but is slightly misleading due to the fact that soft law has no per se binding effect, it is conceived to have such effect in the long term. This means that while treaties are actually binding (after ratification by states), soft law instruments are only potentially binding ((Roberto Andomo, The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics, July 7, 2013, 4:40 PM) http://www.unesco.de/1507.html)). A good example of soft law would be the Universal Declaration of Human Rights.
In Military and Paramilitary Activities in and against Nicaragua, ((The Republic of Nicaragua v. The United States of America, 984 ICJ REP. 392 June 27, 1986))there was a third party to adjudicate disputes, yet still the law proved to be soft due to the balance of international politics. In this case the International Court of Justice ruled against the United States of America for supporting rebels in Nicaragua. The United States blocked this judgement by the Security Council and hence Nicaragua never got any of the compensation it was entitled to.
The Court held that the United States was “in breach of its obligations under customary international law not to use force against another State“, “not to intervene in its affairs“, “not to violate its sovereignty“, “not to interrupt peaceful maritime commerce“, and “in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956.”
Positivists and Naturalists
As international law developed after Hugo Grotius, (the “father of international law”) two distinct schools of the law of nations arose. One was the naturalists, who believed that international law was completely identifiable with the law of nature. On the other hand, there were the positivists, who were of the view that international law and natural law were completely distinct entities. The positivists leaned towards current state practices and dilemmas of a more practical nature ((Malcolm N. Shaw, International Law 24 (5th Ed, 2003).)).
Heinrich Triepel (1868-1946) has given a modern spin to positivism by saying that international law must lie in the will of all of the states involved. He laid down that once a tralaw had been made implicitly (customs) or explicitly (treaties) by the countries, it could not be unilaterally revoked by any of the parties ((Stephen Hall, The Persistent Spectre: Natural Law, International Order and the limits of legal positivism, European Journal of International Law (July 13, 2013, 7:15 AM) http://www.ejil.org/pdfs/12/2/1518.pdf)).
While the naturalist Samuel von Pufendorf declined to subscribe to the idea that an agreement between sovereigns could constitute positive law. According to Pufendorf international law was simply the “natural law of states” ((Samuel von Pufendorf, De jure Naturae et Gentium libri octo (1934) Translation by C.H. and W.A. Oldfather of the 1688 edition)).
Is International Law a “Law” in the true sense?
One major bone of contention in the argument in whether international law is a law in the true sense of the word or not is whether it is enforceable or implementable or not. Some thinkers like Thomas Hobbes ((Robert F. Turner, International Law is really Law, (July 9, 2013, 10:00 PM) http://www.fed-soc.org/publications/detail/international-law-really-is-law)), and Jeremy Bentham ((HB Jacobini, Some Observations concerning Jeremy Bentham’s Concepts of International Law, American Society of International Law ( 10 July 2013, 11:30 PM) http://www.jstor.org/discover/10.2307/2193684?uid=16936288&uid=3738256&uid=2&uid=3&uid=67&uid=31022&uid=62&sid=21102530563967))are of the opinion that seeing that International law is not binding or enforceable, it is not a law in the true sense. On the other hand Oppenheim ((Dr. V. Balakista Reddy, Introduction to International Law, (July 11, 2013, 1:20 AM) http://pgdalatm.nalsar.ac.in/materials/Intro%20to%20International%20Law.pdf)), Brierly ((Balakista, Supra Note 18 at 5))and Starke ((S.K. Verma, An Introduction to Public International Law, 49 (2004).))were of the opinion that international law is a law due to the fact that it could be implemented or enforced.
The positivist will have to argue that any legal system in which social disapproval functions as the sole sanction (for example, in a peaceful tribal society) does not have ‘law.’ ‘Law’ is present only when, in addition to social disapproval, there is physical coercion stemming from the sovereign power of the state. But what if there is no need for this physical coercion? The positivist must then conclude that there is no law ((Anthony D’Amato, Is International Law Really ‘Law’?, Northwestern University School of Law Scholarly Commons (July 12, 2013, 7:45 AM) http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1102&context=facultyworkingpapers)).
However as we know often disapproval of the international community is not enough to deter some of the more powerful nations in the world from violating international law while “looking after themselves”
Oppenheim was of the opinion that the enforcement mechanism of international law of international law is war. If a nation is in violation of international law a “just war” may be waged against it ((L. Oppenheim, International Law 177-79 (H. Lauterpacht 7th ed. 1952).)). Again, in the modern world of “balance of power” and very few superpowers left standing along with globalisation, this would impractical as no country would dare to rise against a leviathan-like power which has its tentacles in almost every country in the world, whether it be in the economic sphere or in matters of military.
Professor D’Amato ((D’Amato, Supra note 21 at 5))then goes on to contend that International Law is not disqualified from being a law simply due to the fact that it is violated. Even domestic law is violated and nobody questions whether domestic law is a “law” in the true sense. Here the author would like to add to Professor D’Amato’s argument with an example in the Indian context. It is often contended that the powerful nations violate international law and get away scot free. Similarly in India often powerful political and economic entities commit crimes and get away in a similar manner, yet no one would object to our domestic law being a “law” or not.
He then gives an argument in the flipside that says simply because most nations obey the law it is not necessary that it be a law in the purest sense of the word. This is due to the fact that many countries violate international law with utmost impunity in matters of critical importance.
After placing three celebrated definitions of international law before the reader and after discussing the various debates related to international law, the author would like to leave it up to the reader whether international law is a true law or not whether the reader considers hard law or soft law to be the most efficient path for international law to tread upon to make a safer more secure future for the world.