Is International Law Really Law - Essay Example

RUNNING HEAD: International Law Does the absence of an international goverment mean that international law is not really law? of Subject Problems Name of Professor Date 1. Introdcution This seeks to response to the question: “Does the absence of an international goverment mean that international law is not really law?”. To proceed this paper first defines the meaning law, international law, and absence or presence of international government and law before going into analysis. 1.1 What is meant by law ? This paper defines law as justice (Bastiat, 2010). The definition is by the purpose. Any order or compulsion to do to have something with justice as an end must be considered law. 1.2 What is meant by international law? The concept of internatioanal law can be taken from philosphical and scientific viewpoints, where the former defines it as “"setting forth the rules and principles which ought to be observed in interstate relations” and which defines “setting forth the rules and principles which are generally observed in interstate relations" (Wilson, 1935, p.11). Law in form is also defined as “a body of rules and principles in accord with which a phenomenon takes place" (Wilson, 1935, p.11) The word “principles” standouts from the definitions which means basic truth or assumption. International thus governs the law of states among themselves or between two states rather than individidual and the state. Its orginin is roooted into the very evoluation of law itself. It is understood in practice as law although it may differ in some concepts compared with other kinds of law partiulary statute law and the laws in general. Knowing how international law differs from these two laws is proper to be used as material for dicusssing the idea on enforcement latter. Wilson (1935) considered statute law to come from legislative enactment, and is enforced by the power of enhancing state within its jurisdiction while International law is not formally enacted. The absence of tribunal for an effective sanction for its enforcement is argued to characterize and make different international law. In short, there is government established for purpose for the enforcement of statute law while violation of international law including its rules would not need international government in manner as the enhancing state of the statute law. Thus, the remedy of nations may be going to war. Although the decision of going to war by one party may rather depend upon its relative strength as compared to other, that is not the only choice they is left foe of the states. These countries may however agree to rather bring to their differences to some form of adjudication or they would want and international tribunal to settle the issue between them (Wilson, 1935) Another way to understand international law is to compare the same with law in general. Austin defined law as a “rule laid down for the guidance of an intelligent being by an intelligent being having power over him" (Wilson, 1935, citing Austin, 1832). To use this definition of law in general it is believed that it would be impossible to have “under it international law without undue liberality in the interpretation of the language” (Wilson, 1935, p.11). 1.3 . What is meant by absence or presence of international government? The presence of international governmence implies power of physical enforcement. The implication of the statement is that the existence of an international law presupposes the existense of international government. International government is given a meaning of capacity or power for physical enforcement of its decisions. Thus the question: “Does the absence of enforcement power makes international law not really ‘law’?” After combining the definitions, this researcher’s main position is the the absence of international government does not mean the absence of international law because the international law is enforced my mutual agreement of the partiers. This rest of paper would deal on alternative enforcement from physical enforce and tackle the arguments that would require said physical enforcement to make international not a true law. 2.1 International law can be enforced by deprivation or right or entitlement that could reciprocally made the between or among states. D’Amato, 2010 used the term “reciprocal-entitlement violation” as a process by which a kind of enforcement of international law is possible. He defined entitlement as “legally enforceable right” and D’Amato claimed that reciprorocal-entitledment violation is an effective process that have been used in the international legal system in the enforcement of most laws in amoung countries in a domestic level. The enacted laws of each state recognizes the principles of international authorized deprivation of one or more enforceable rights as held by its citizens or corporations under its jurisdiction. The presence of stable international entitlements whereby can countries enjoy the same should testify for the presence of enforcement (D’Amato, 2010). The possibility of the occasional breaking of the laws is a reality with or without international law, thus to argue that physical enforcement is a requirement would be to reduce the meaning of what is true law. The silent enforcement in international law is seen by the observance of refraining what would cause on country to be protest to or incur the ire of the international community. It is impossible not to notice entitlement that is believed to be included in the way nations avoid from doing certain things (D’Amato, 2010). Nations simply want to preserve their existing entitlements by their lawful behavior in refraining to do some certain acts which they have vowed to respect in case of treaties with other country or countries. A greater argument to sustain that international law is closer to becoming a true law can be gleaned from observing the norms which are basically clothed with preserved entitlements. The state remember has the right to sovereignty as recognized under the Universal declaration of right and duties of State (American Society of International Law , 2010) Such declaration cannot be considered as not having entitlements at all. The right not to be internvened to by other states is one of them. The right to enforce its own territoriral jurisdictions against those who would commit criminal laws is an entitlement is being preseved because of the nature and existence of an international law that must be observed. The idea therefore of having international law is not necessarily the establishment of international government that would enforce the rights and obligation of the parties in international law but that the separate and independent government may be allowed to have effect on other government or state by mutual consent. Thus there is doctrine of mutual consent for enforcement and entitlements (D’Amato, 2010). 2.2 Enforcement is actually happening but may be in different forms from physcical form. The argument to require international governent to make international a “law” sound to favor physical enforcement where subject may fear violation of rules under gunpoint. Physical enforcement was never a requirement of what it to be ‘law’ based on early conceptions and philosopy of law. D’Amato (2010) cited the effective enforcement without the use of physical force in when radical students in Iran took hostage the American Embassy in Iran. The author argued that a tit-for-tat may be possible, but the result would be the reduction of the entitlements. Indeed, international law can be in fact regarded as law in form and in practice (Wilson, 1935 citing Walker, 1893). It is argued that the absence of a central court that has compulsory jurisdiction or a world police does not mean the absence of law in the form of an international law but that the international law is just enforce differently (D’Amato, 2010). To argue therefore the physical enforcement is to argue that one complies with the obligation under the law will have to do it gun point. With the realization that International law is enforced in a different way, that the absence of the international government does not mean that deprive international law as a a law with avaialable enforcements that need not be physical. Equating international law with the concept of statute law because of the need to have that central enforcement would be to miss the very essence of law which is the attainment of justice and peace as a consequence of the first. D’Amato (2010) considered the presence of intergovermental communication as a resort to “law” as the parties or counries need to do things the legal way and thus defend againsts disapproval of other states. There is the fear of disapproval among states which is the power of the law itself. There appears therefore orientation of the international law toward international peace and security, which is actually the primary aim of the present United Nations (American Society of International Law, 2010). 2.3.1 Enforcement is the not the authentication of a true law. It can be argued that using definitions presented where law is equated with justice and any order to attain justice my be considered law, international law must then be considered a law. This is consisent with early conceptions of law and on the philosophy of law itself. The element of might or force is not necessarily included so that it cannot be imagined state is constantly coercing people to act in a certain way with a gun (D’Amato, 2010). It is not the the power of might or the sense that the state would be compelling people to bahave it a certain rather that makes a law a true law. Rather, it is the decision of humans to behave in certain way as there could be adverse consequences of not complying what is expected under the power of law. Said consequences is not necessarily physical force. This was the basis of when US did no respond with force as when the US compelled Iran when it caused the freezing of Iran’s assets in the banks outside Iran in as deprivation of entitlement due with the physical force employed by Iran radical students when they held hostage the American Embassy in Iran. The power of the law need not be physical but in being deprived of an entitlement that deprived reciprocally in case violation by Iran (D’Amato, 2010). To argue that there is need to have an external force that threatens one country to inflict more than it has consented to would be the same as putting the cart before the horse. In the first place, an international law was created by mutual consent of the states (Kelsen, 2003). Thus when a state is born it has its own territorial jurisdiction in terms of land mass, certain area of sea water and air space more or less above its land mass which are recognized by neighbouring states or by the community of states (Munawwar, 1995). Each state can be said to have actually started none other than an accumulated of assertions of a right or an entitlement which was eventually recognized by other nations leading to eventual recognition as state. If it is assumed for the sake of argument that physical enforcement was a requirement for statehood, it would mean an international law exists because the newly constituted state fears the rest of the world that it would be punished by war. It would be absurd to take this position in the same way that a city of an independent state would say that there is law between this city and the head or central government that could impose its will against this city with the power of the gun if there is a need to do so. Of course the latter would be possible, but fear of losing many other rights would more real in the mind of the city than the immediate threat of physical power. This paper therefore argues that enforcement needs not come by the power of physical force. As the human life is governed by many forces other than physical force, so should the power of international law be. For example, in contracts entered into between the parties, it is believed that their agreement becomes the law between the parties. Under the statute law, the contracting party who wants his or her rights enforced can go to court of competent jurisdiction and have his or her rights adjudicated (Shipherd, 2009). The power of courts in a domestic system is clearly supported by enforcement power of state through the government using the latters instrumentalities to compel performance of the duly adjudicated right. D’Amato (2010) argued that the main matters about the concept of law is the working-out of private arrangement in a comple society rather the use of force to have things accomplished at gun point. He cited with use and role of law in the interpretation and enforcement of private contract, the redress of internation and negligent harms and rules regarding sales of goods and sales securities. He was arguing the compliance of the these laws not out of fear but of the state’s power, but because the rules are perceived to be right, just and appropriate (D’Amato, 2010). It is therefore the perception that would matter when its comes to compliance. This would point that there is inherent sense of justice and individuals which implies universality. Obeying out sense of justice is different from obeying out of fear. When one imagines this situation, it would be the same way as arguing that since the one does fear the other, one would not obey. If one’s parents happens to be weak and capable of physical enforcement of their authority, does it mean their children will not obey? It stands to reason that young people obey their parents not out of fear but out of respect for sense of justice which they themselves have in their feelings or values. Under international law, the remedy of a state which wants to bring out violation to prior treaty or agreement with another country may just include the right not to respect in return the right of the other state. An example is when State A has his ambassador not accorded the right of immunity from criminal cases by State B, assuming the two states have pre-existing treaty to honour. State A would simply not accord ambassadorial immunities to State B on criminal cases. In other words, it could be a case to tit-for- tat strategy. The effect however would be destroying the right, entitlement or advantage of having come into mutual agreement in the first place. Countries among the world must act cooperatively in their desire to give peace a chance. From peace comes development and happiness for all. Each country would have to give in some of their rights so that other may take and give in return. The power therefore comes in finding the commonality for mankind, the commonality to respect life, liberty, property and to whatever will make life enjoyable and shared in this planet and to co-exist peacefully despite the presence of differences in many things or aspects of life. 3. Conclusion. This paper has the heavily criticised the argument for the need of physical enforcement in order to qualify as law. The claim has no sufficient basis from history and experience. The enforcement of internation is by mutual consent that the fact that countries would enter the same is a confimration for the need of such law. Government is just an element in the constitution of state and the absence and its absence actually cannot be mean to absence of a law. From the principle that the elements of state includes government, the same cannot be said that the presence of international government as a requirement of international law. International law as found in treaties reveals the intention of the contractng states to come to an agreement of peace since doing so would be for their own advantage. Indeed avoiding war is a practical matter since this would allow the citizens of the countries to just use their resources for survival than for war. The fact the international peace has been experience for a long time and with the creation and continued functioning of the United Nations should provide evidence of the validity of intenrational law attainng it purpose of international justice and peace. The lack if international government does not mean the absence of internation law since the object of international is international peace and the use of physical force needs not the be solution. Even before the United Nations there was already international law which must be deemed to have co-existed the moment the independents states were deemed created. The existence of jurisdictions of the states under existing intermational law also argues to the presence of authority as evidence of effectively observed international law. International law should therefore be considered as true law. References: Amato, A. (2010). "Is International Law Really "Law"?. Northwestern University School of Law. Retrieved 20, 2011 from American Society of International Law (2010). Draft Declaration on Rights and Duties of States < http://www.eisil.org/action.php?sid=574630864&url=http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/2_1_1949.pdf&action=go&id=529 > Austin (1832) "Lecture on Jurisprudence”, p.10 Bastiat, F.(2010) .The Law. Cosimo, Inc. Kelsen, H. (2003). Principles of international law. The Lawbook Exchange, Ltd, p. 314 Munawwar, M (1995). Ocean states: archipelagic regimes in the law of the sea. Martinus Nijhoff Publishers, p. 175 Shipherd (2009), The History of the Oberlin-Wellington Rescue. Applewood Books, p 197 Walker (1893), "Science of International Law," London, Clay & Sons, 1893 Wilson, G. (1935). International Law. Forgotten Books Read More