[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB (Hons)–Mak; GC Candidate–GCA]
Also known as the law of nations, international law is defined as, ‘The system of law regulating the interrelationship of sovereign states and their rights and duties in relation with one another,’ although it also accommodates some organizations, companies and individuals. In essence, it is a body of laws that governs or restrains the behavior and conduct of international actors among themselves.
International law is a relatively new body of laws that is still struggling to find its footing and bearing, in the wider arena of international relations and diplomacy. For the larger part of human relations, individuals existed either on their own or in isolated clusters, until the emergence of bigger human communities and associations like tribes and states, when the need for formal governance structures, including law, arose. These entities were essentially a collection or amalgamation of people, assembled together and united for a common cause especially, public security and order. Even then, states carried on their work as and how they deemed fit, without restraint from other states, until inter-state action and co-operation developed, mainly through trade and warfare. It is at this moment that rules regulating state conduct were found necessary and crucial, hence the rise of what is now known as international law.
The existence and reality of international law has been widely doubted and also criticized. There are many people who question its efficacy as a substantive, credible and effective legal regime, believing that the whole concept of it is just a myth, hoax or fallacy, only existing in theory, not practice. For example, Marti Hiken and Luke Hiken have forcefully stated that:
'Whenever a lawyer or historian describes how a particular action “violates international law” many people stop listening or reading further. It is a bit alienating to hear the words “this action constitutes a violation of international law” time and time again – and especially at the end of a debate when a speaker has no other arguments available. The statement is inevitably followed by: “… and it is a war crime and it denies people their human rights.” A plethora of international law violations are perpetuated by every major power in the world each day, and thus, the empty invocation of international law does nothing but reinforce our own sense of impotence and helplessness in the face of international lawlessness …. Obviously one would wish that there existed a body of international law that could put an end to these abuses, but such laws exist in theory, not in practice …. If there is no enforcement mechanism to prevent the violations, and no military force with the power to intervene on behalf of those victimized by the violations, what possible good does it do to invoke principles of “truth and justice” that border on fantasy? The assumption is that by invoking human rights principles, legal scholars hope to reinforce the importance of, and need for, such a body of law. Yet, in reality, the invocation means nothing at the present time, and goes nowhere. In the real world, it would be nice to focus on suggestions that are enforceable, and have some potential to prevent the atrocities taking place around the globe … praying for rain sounds as effective and rational as citing international legal principles to a lawless President, and his ruthless military.'
Such is the gravity of the scholarly challenge faced by international law, but let us critically analyze these doubts, while at the same time making a case for its existence and reality.
The Reality of International Law
It is submitted that international law is a set of real and tangible legislative enactments, capable of not only exact definition, but enforcement and precision as well. The following discussion attests to the veracity of this submission.
First, critics of international law say that it is largely a myth because there isn’t a single known legislative body that makes binding rules of international law. Whereas it is true that there is no single body of international standing that exercises a monopoly of declaring binding rules and norms of international law, like there exists legislatures in the municipal law arena, the factual truth is that international law is made by known entities, at the helm of which are international governance and financial institutions like the United Nations General Assembly, regional bodies like the African Union and then individual states mainly through treaties, for the regulation of conduct of known entities or persons, including states. This is pretty much like municipal law itself, that is made by known legislative bodies like parliaments and government officials like ministers, for the guidance of known and specified audiences like citizens of the concerned state and all people living within the borders of that state.
A good example is the Rome Statute of the International Criminal Court (hereinafter ‘the Rome Statute’) which, came into force in 2002, and established the International Criminal Court (ICC). The Rome Statute is a codification of international law principles, enacted by known States Parties to it, for inter alia, the prevention and punishment of outrageous acts of international criminality, committed by state actors, operating in the name and under cover of the state. We have seen material progress under this law as manifested in the prominent indictments of Sudanese President Omar Al Bashir and Kenyan President, Mr. Uhuru Kenyatta, by The Hague, Netherlands, based court. Mr. Kenyatta is slated to undergo trial before the Court in February 2014, while Mr. Bashir is still at large. Kenya’s Deputy President, Mr. William Samoei Ruto is also undergoing trial there, with journalist, Joshua Arap Sang.
Second, the opponents of international law suggest that it is not law properly called because it is incapable of actual enforcement. The chief proponent of this view was the famous philosopher, John Austin, who likened international law to a branch of municipal law known as constitutional law, stating that both of them are merely “positive morality.” As a positivist, Austin comprehended law as obligatory rules of conduct, whose compliance with, was of absolute importance and not subject to debate whatsoever. Well, John Austin was entirely right in saying that law must be strictly complied with, only that he didn’t appreciate that international law is actually capable of enforcement. Evidence that this is true exists in abundance today.
To begin with, the learned author, Shaw, wrote that state practice forms the basis of customary international law. ‘It is how states behave in practice that forms the basis of customary law, but evidence of what a state does can be obtained from numerous sources,’ he said. This is absolutely true. For instance, for a long time, states have accorded one another and enjoyed diplomatic privileges like the inviolability of foreign embassies, consulates and other diplomatic property as enshrined in the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963 (hereinafter ‘the Vienna Conventions’) which, according to the International Court of Justice, in its judgment of the case of United States of America v. Iran, ‘… codify the law of diplomatic and consular relations, state principles and rules essential for the maintenance of peaceful relations between States and accepted throughout the world by nations of al1 creeds, cultures and political complexions.’
There is an ongoing diplomatic row between Britain and Ecuador, over the latter’s granting of asylum to Wikileaks founder, Mr. Julian Asange, who took refuge in her embassy in Britain, to avoid possible arrest and extradition to the United States of America, to face trial on charges of leaking key US intelligence secrets. Britain threatened to storm the Ecuadorian embassy in order to arrest and detain Mr. Assange, but Ecuador effectively prevented Britain from executing her plan of action, by asserting her (Ecuador’s) international law rights and privileges as enshrined under the Vienna Conventions, saying that that would be a violation of international law.
Diplomatic rights and privileges in international law, include immunity against prosecution of foreign dignitaries like heads of states and governments, ministers of foreign affairs, as well as diplomats. Zimbabwe’s President Robert Mugabe was a beneficiary of these rights and privileges after a court in the United States declined to issue a warrant of arrest for him, while attending a UN summit in New York, following his government’s controversial land reform program involving seizure of white owned firm lands that was alleged to constitute a crime against humanity and that therefore, a breach of international law. The Court took judicial notice of his immunity from arrest as a sitting head of state.
Further, for some time now, international law has condemned crimes against humanity like murder, rape and the use of child soldiers in armed warfare. Thus, on 26 April 2012, the Special Court for Sierra Leone found former Liberian President, Mr. Charles Taylor, guilty and convicted him of abetting such crimes and later sentenced him to 50 years imprisonment on 30 May 2012, to be served in a British jail. Mr. Taylor was not punished under municipal law, but rules of international law, which is evidence that it is actually enforceable and therefore, real, such that it is not a myth as alleged by some commentators.
Last but not least, it should be noted that the institution of law can only survive and thrive in society if the people subject to it consider themselves bound by and liable to its dictates. In other words, law must be accepted by the people it serves. International law has received generous acceptance and this is true because, for example, while reacting to the American government’s intended military strike on Syria in 2013, Russian President Vladimir V. Putin, acknowledged the legitimacy of international law by saying that, ‘We are not protecting the Syrian government, but international law’ and adding that ‘… if you cannot count on international law, then you must find other ways to ensure your security.’ This is a clear indication of willingness to be bound and regulated by rules of international law. The other example is the outrage of ordinary Africans against their leaders who met in the Ethiopian capital, Addis Ababa, in 2013, for the extraordinary session of the African Union, during which it was resolved that African leaders would not cooperate with the ICC which, they accused of witch-hunting them. This shows that the Court, an international law body, has received wide acceptance among ordinary people, at least in Africa.
In summary, it must be affirmed that international law is law properly called, complete with sanctions like social disapproval in the community of states. Although it is dogged by several challenges and sometimes glaring loopholes (like the unilateral invasion of Iraq by the United States of America in 2003, with impunity, in contravention of a standing United Nations General Assembly resolution to the contrary), those can be overcome. In any case, such challenges are not unique to the realm of international law, after all. In fact, national or municipal law has more or less the same challenges and loopholes, yet the detractors of international law have never disputed the legitimacy of municipal law. For all intents and purposes, the reality of international law is beyond dispute because this body of law is made by known entities and is enforceable against known audiences. The view that its alleged ineffectiveness denies it legitimacy is not sound enough because, as Professor Anthony D’Amato said, “… the fact that law can become ineffective doesn’t mean that it isn’t law in the first place.’
Notes and References
1. Elizabeth A. Martin (Ed.), A Dictionary of Law (2003), at 260.
2. Marti Hiken & Luke Hiken, INTERNATIONAL LAW: REALITY OR MYTH (July, 2012).
3. See, the case of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang.
4. J. Austin, “THE PROVINCE OF JURISPRUDENCE DETERMINED,” Hart (Ed) (1954), at 127.
5. Malcolm N Shaw, INTERNATIONAL LAW, 5th Edn (2003), at 78.
6. International Court of Justice, Case Concerning United States Diplomatic and Consular Staff In Tehran (United States Of America v. Iran) ICJ Reports (1980) 3, at 24.
7. In the United States of America v. Iran case, ibid. at 44-46, the International Court of Justice unanimously decided that Iranian authorities ‘... must immediately terminate the unlawful detention of the United States Chargé d'affaires and other diplomatic and consular staff ... now held hostage in Iran, and must immediately release each and every one and entrust them to the protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations); and further, ‘that no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness.’
8. Special Court for Sierra Leone, The Prosecutor vs. Charles Ghankay Taylor.
9. The New York Times, “A Plea for Caution From Russia: What Putin Has to Say to Americans About Syria,” 11September, 2013.
10. Anthony D’Amato, “Is International Law Really “Law”?” (1985), NULR, at 1313.