LIMITS OF INTERNATIONAL LAW IN THEORY AND PRACTICE

ABSTRACT:

Jeremy Bentham is the person who used the term international law for the very first time. According to THOMAS HOBBES and JOHN AUSTIN law is a command of sovereign enforced by superior political authority, which means that international law is just a positive international morality. This depicts that international law is not a real law, but a positive international morality. International law lacks in effective legislative machinery, executive machinery, judicial machinery as well as the sanctioning power in the world internationally.

For a law to exists, the only condition is that it should be recognized by the political community as binding them and international law satisfies this condition. HUGO GROTIUS is known as the father of international law who has divided the law into natural law and positive law, in which the positive law itself is divided into divine law and human law and further human law is divided into the law of nations as well as civil or municipal law which is the local law of the state.

SCHWARZENBERGER has defined the international law in a very accurate manner in which he says that “international law is the body of legal rules which apply between sovereign states and such other entities as have been granted international personality”, which in itself includes the international entities as well as the organizations including a human being.

WHAT IS INTERNATIONAL LAW:

According to the father of international law, international law is an agreement between sovereigns and can be divided into two categories: public and private in which the former refers to the states and the latter to the individuals. International law defines the legal responsibilities of the states in their conduct with each other, and their treatment of individuals within the state boundaries. The domain of international law is surrounded with a wide range of issues such as human rights, disarmament, international crimes refugees, migration, problem of nationality, treatment of prisoners, the use of force and conduct of wars among others. International law also regulates the global commons such as environment, sustainable development, international waters, outer space, global communications, world trade as well as individuals with respect of criminal offences. Basically international law is the set of rules, norms, and standards generally recognized as binding between the states.

ROLE OF INTERNATIONAL LAW IN THEORY:

The international law establishes normative guidelines and a common conceptual framework for the states across a broad range of domains which includes diplomacy, economic relations, and human rights etc. As UNITED NATIONS ORGANISATION is one of the prominent parts of international law which constitutes various functions which are as follows.

ROLE OF VARIOUS BODIES OF INTERNATIONAL LAW:

There is various role of bodies of international law which are as follows: –

INTERNATIONAL COURT OF JUSTICE:

Article 38 of the statute of international court of justice explains when a dispute reaches to the ICJ then, the following mentioned sources will be applied on the dispute accordingly to resolve the same the below mentioned are the sources of law which are as:

ICJ is the court, whose function is to decide in accordance with the international law such disputes as are submitted to it, shall apply
International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
International customs, as evidence of a general practice accepted as law;
General principles of law recognized by civilized nations;
Subject to the principles of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for h determination of rules of law.
This position shall not prejudice the power of the court to decide a case ex aequo et bono, if parties agree thereto, which explicitly means according to the right and the good; which also means from the equity and conscience and justice.

Despite all of the supra-mentioned sources, there are many other sources as well which are as follows:

Decisions or determinations of the organs of international institutions
- Resolutions of international conferences
- Decisions of municipal courts touching international mattes, etc.

All these are unofficial but accepted by law.

INTERNATIONAL CONVENTIONS:

The term convention in article 38 implies any conventions, treaty, protocol or an agreement, etc. treaty is a written agreement between two or more countries. Convention is a special type of treaty. Protocol is a method for alteration of a treaty. International conventions whether general or particular, establishing rules expressly recognized by the contesting states.

According to article 2 of Vienna convention, 1969: a treaty is an agreement whereby two or more states establish or seeks to establish relationship between them governed by international law. (The expression “two or more states” in the definition of article 2 narrow the ambit of the other entities of international law which includes international organizations and international personalities, which are also a part of the same.)

According to article 3 of Vienna convention specifies other subjects of international law such as international organizations can also conclude treaties. Which has enlarged the ambit of the definition. Therefore, convention is an umbrella term.

INTERNATIONAL CUSTOMS:

International customs act as evidence of a general practice accepted as a law, which includes two conditions in it which are as follows:

There should be sufficiently uniform state practice throughout the world.
- There should be a belief that such practice is obligatory (opinion juris), followed throughout the world.

USAGE: This is an international habit which has not taken the form of a law.

CUSTOM: custom is the usage which has taken the force of law.

GENERAL PRINCIPALS OF LAW ACCEPTED BY CIVILIZED NATIONS:

By the general principals of law which means principles so generated as to apply within the systems of law, example

Pacta Sunt Servando: which specifically means the parties to the treaties who have signed the treaties must be bound by them to perform them, means it must be obligatory.

No man can be a judge in his own case: principle of natural justice, and many more rights which includes right of self defence;

Res Judicata: means the matters which has been tried and heard must not be tried and heard again in the same sense.

JUDICIAL DECISIONS AND JURISTIC WORKS:

Subject to the provisions of article 59, subsidiary means, subsidiary and indirect sources of international law. Article 59 of statute of ICJ says that the decisions of the court shall not have any binding force except for the parties of the case only for that particular matter. ICJ does not adopt the doctrine of precedent

{STARE DECISIS}.

JUDICIAL DECISIONS are the uniform decisions of municipal courts of various nations can serve as evidence of an international custom, where as JUDICIAL WORKS are only resorted to when all other sources listed are not enough to resolve the dispute.

POWER OF INTERNATIONAL LAW:

As we all know that international law is a responsibility of states in their conduct with each other in which UN, the UNITED NATIONS ORGANISATION plays a vital role in maintaining peace in all over the world and basically on those members who are the parties to the organization. There are various bodies of UN which helps in maintaining peace in the world as well as resolving the disputes among them, which are WORLD BANK GROUP, WORLD HEALTH ORGANISTION, WORLD FOOD PROGRAMME, UNESCO, UNICEF, in which the chief organs of UN comprise GENERAL ASSEMBLY, SECURITY COUNCIL, ECOSOC, TRSTEESHIP CONCIL, INTERNATIONAL COURT OF JUSTICE [ICJ], and UN SECRETARIAT in which some of are as:

UNITED NATIONS GENERAL ASSEMBELY:

The UNGA is the main deliberative assembly of the UN, composed of all the UN members states. The assembly decides on important questions such as those on peace and security, admission of new members, budget related matters, two third majority voting is required. Whereas all others questions are decided by majority votes. Body can make recommendations on any matters within the scope of UN.

SECURITY COUNCIL:

Prominent function of UNSC is to maintain the peace and security among countries. The body has a power to make binding decisions that the members states have agreed to carry out. Decisions of UNSC are known as the resolutions

UN SECRETARIAT:

The main role of un secretariat is to provide studies, information, and facilities needed by the UN bodies for their meetings. It also carries out the tasks as directed by Security Council, General Assembly, Economic and Social Council, and other UN bodies. ARTICLE 99 of the charter states that the secretary general can bring to the security council’s attention “any matter which in his opinion may threaten the maintenance of international peace and security”, can think as well work over it.

ECONOMIC AND SOCIAL COUNCIL:

The ECOSOC assists the general assembly in promoting international economic and social co-operation and development and also co –ordinate many agencies.

TRUSTEESHIP COUNCIL:

This council ensures the adequate steps should be taken to prepare the territories for self-government and independence

LIMITATIONS OF INTERNATIONAL LAW:

Let us take an example of India, which have tree bodies in which legislature is the one which makes the law, executive is the one which implements the law, and the last which is judiciary the one which ensures that if anyone breaks the law, the same will be punished, that is the power of municipal law. Under the international law these aspects are mostly missing that is why from institutional point of view international law is weak, it has no legislative support though there is international court of justice which entertains those case at the mutual consent of parties but the decisions are not binding on the parties. The concept of mutual consent is must when it comes to the international law.

According to KARBET: “the main course of weakness of international law is the lack of solidarity among highly civilized states”.

LACK OF LAW-MAKING AUTHORITY/ LEGISLATURE; IMPLEMENTATION MECHANISIM/ EXECUTOR AUTHORITY:

As in the municipal law we have the three organizing bodies which holds the control over the whole state which is the legislature, the judiciary, the executive and all these laws making as well as law implementing bodies are missing as there is law making, implementation mechanism in international law and also does not have compulsory jurisdiction which is the main cause of lacking control over the states.

LACK OF COMPULSORY JURISDICTION IN TRUE SENSE:

The international law does not have such a mechanism to hold power over the states which means that the body does not have a set jurisdiction for implementing the laws over them which simply means that the international law does not have compulsory jurisdiction which is the main course of lacking control over the states.

LACK OF POWER TO PUNISH/ WEAK SANCTIONING POWER:

Let understand this with an example : while driving on the road on a two wheeler we ensure that we are wearing the helmet and carry all the documents with us not because we all are very good citizens just because we are scared of fines and penalties as well as we are scared of traffic police, to avoid them we keep all the documents but in international law such fear is not available because the international law or the international court of justice does not have too much of sanctioning power and it is not a compulsory jurisdiction , in that way it is optional and not binding on the states.

TREATING INTERNATIONAL ALW FOR THEIR COMFORTS:

Mostly states are using the international law for their own personnel use and according to their usage and their requirements not having the compulsory jurisdiction.

CAN NOT INTERFERE WITH STATE LAWS:

Basic element is that international law does not interfere with the state laws because the state laws are made by the states and they cannot be interfered by the international law, it totally depends upon the states whether they want to involve international law in the matters of their states or not but international law directly cannot interfere with the municipal laws without their consent as they lack in the jurisdiction. According to ARTICLE 2(7) OF UNO is not competent to interfere in the domestic matters of the states.

FAILED IN MAINTAINING PEACE:

The international law has filed in maintaining peace as super power countries always supersede for their comforts and use international law according to their whims and fancies. They allow the international law to interfere in their matters when their matter is aligning with the international law as per their requirements and comforts.

INTERNATIONAL LAW ARE UNCERTAIN AND VAGUE:

When it comes to municipal law, we have very clear laws and we have everything defined but when it comes to international law though there are documents available, they are not completely accepted, drafted or agreed by the states so, it is uncertain people are not very sure and that is why is considered as vague. Their reason to be vague is the lack of sanctioning power. They have failed in maintaining order and peace by the time and they are not as powerful as municipal law that is why they are considered as vague and uncertain.

FAILURE IN RESOLVING DESPUTES IN THE WORLD:

Due to lack of jurisdiction in the world as well as lack of binding effect on the states the international law is unable to resolve the disputes arising among the states and not successful in resolving them.

CONSENT PROBLEM:

As we all know that the states are not having the binding effect on them through the resolutions of the international law, therefore the international law is only applicable to those states who have given the consent to follow the same or the consent to resolve the disputes of the states.

CASE LAW: Queen vs. Key (1876)

It was held that there is no such institution or body which can enact laws for sovereign states and there is no court also which can enforce its decisions and to bind the states.

CONCLUSION:

The core problem related to the applicability of international law is lack of sanctioning power on the states through their verified agencies as the states works on the consent theory as they do not want any external Interference in resolving their disputes with other states. The states use the international law according to their whims and fancies and for their benefit only. They make use of international laws and international bodies for their use as and when they need them. This is the main reason the international law fails in maintaining the peace among the states and the world as a whole.