This article is written by Faria Abdulla of 4th Semester of University of Lucknow, an intern under Legal Vidhiya
ABSTRACT
INTERNATIONAL LAW (also known as Public International Law and the law of the Nations) is in general terms referred to as the rules, norms, conduct and behavior that are accepted and duly followed by the different states across the nation. Each State around the globe has its own set of norms and code of conduct, International Law acts as a common force that binds all the states with a single thread of rules. It establishes Normative Guidelines and a common conceptual framework across the nation, in addition to guidelines and framework, it also lays emphasis on the war situations, ensures existence of human rights, economic relations, diplomacy, peace agreements etc….
International Law[1] concerns itself with the relations and dealings among two or more states, as well as the individuals belonging to the two or more different states and international organizations. Its aim is to check the dealings and relations and frame rules and regulations that need to be followed strictly by the parties concerned.
It is basically of two types: –
o Public International Law
o Private International Law
Public international law is relatedonly with questions of rights between several nations or nations and the citizens or subjects of two or more different nations. In contrast, private international law deals with controversies between private persons. These controversies arise out of situations which have a significant relationship to multiple nations. In recent years the line between public and private international law has become increasingly uncertain. Issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial international significance.
National Law varies from International Law in more than one field. The relationship is variable and complex. For a national law to become an International Law, the National jurisdiction needs to be accepted by the tribunals such as the European Court of Human Rights or the International Court of Justice[2]. The acceptance and approval of such tribunals are deemed to be necessary. An international treaty[3] such as Geneva Conventions require national law to conform to treaty provisions. However, Nations may proceed to make the implementation and interpretation of international laws and conventions into their domestic/national laws.
The question that often arises is how these International Laws are formed? How these
Laws are being formulated?[4] This is a very difficult question and needs a desirable explanation. As we know that each state has its own governing measures, which are in accordance with the situations and scenarios of that particular stat. An international Law creates a binding between two different states; therefore, it must contain the laws and principles of both the states. It is quite dangerous to transfer the ideas of one particular state.
AN INTERNATIONAL LAW HAS NO CODE.
There is No Parliament of International Law and therefore it cannot be called as legislation. However, there exist certain tribunals, ICJ and International Criminal Courts, but their jurisdiction is entirely based upon the consent and principles of states, therefore, it may lack the independent and free jurisdiction as enjoyed by domestic/national courts. To answer the question that from where international laws are formed; Sources of international[5] law refers to where states, organizations, individuals and courts can find principles of international law.
Keywords: – International Law, Treaty, International Court of Justice (ICJ), Normative Guidelines, International Criminal Court (ICC).
INTRODUCTION
First of all, our International Criminal Court was established with the sole purpose to restore International Peace by securing each and every living being security and natural right to life, survival and equality. Great expectations greeted the opening of the International Criminal Court (ICC) on July 1, 2002. Kofi Annan captured these expectations when he expressed the hope that the new ICC would “deter future war criminals and bring nearer the day when no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity.”[6] Although the purpose of the ICC was to ensure the safety of all living beings and to secure them their natural rights, the purpose was called an unrealistic dream by many human right activists, international law experts and many other scores of the world. Among them were Sir Chris Patten, the European Union Commissioner for External Relations, according to him, the new court’s purpose was to “ensure that genocide and other such crimes against humanity should no longer go unpunished.”[7] . Perhaps the most salient reason is that the ICC as currently organized is, and will remain, unacceptable to the United States. This is important because the ICC depends on U.S. political, military, and economic support for its success. An ICC without U.S. support and indeed, with probable U.S. opposition-will not only fail to live up to its expectations. It may well do actual harm by discouraging the United States from engaging in various human rights protecting activities. And this, in turn, may increase rather than decrease the impunity of those who violate human rights.
In my opinion, International Law has proved to be self-defeating and futile in the recent as well as past events, concerning the following;
- International law has, in many cases, failed to maintain order and peace in the world.
- There is no executive authority to ensure that all the international law rules are being followed.
- The rules laid down in the international law suffer from uncertainty and also bias. o The international legislation is weak as compared to the domestic or state legislation. The authorities are unable to enforce their judgement and decisions with as much efficiency as the state or domestic courts.
- The greatest limitation is that international laws cannot intervene in the private matters of the state.
- Incapable of punishing serious human rights abusers. (For ex; ICC has failed to end impunity for human right abusers and detect and eliminate future war criminals.)
These reasons make international law futile and self-defeating as well as weak as compared to municipal law. However, it must be noted that, unlike municipal law, international law operates in a purely decentralized system. All States consider themselves independent and sovereign. International law must be understood and appreciated in the peculiar system in which it operates.
I. FAILED TO MAINTAIN ORDER AND PEACE IN THE WORLD
The international organizations such as UN organizations were responsible for keeping peace and order in the country. However, due to transformations and various developments the aim of peace keeping is lacking behind. Currently, threats and the problems faced by international law are countless. It includes; threat of environmental depletion, threat to states’ security, threat of malnutrition & poverty, problem of financial instability, war problems, etc……….
First of all, scholars have from time-to-time laid emphasis on the fact that maintaining a law without a government is unachievable. Therefore, in order to preserve international peace, the makers of the international law must have abolished sovereign states and established an international government.
II.NO EXECUTIVE AUTHORITY
As in the state’s governments there is no executive head for the international law which results in violation of these laws and norms by the state as well as its natives and citizens.
Lack of central authoritative body makes the international laws weak as there is no one to ensure their application and execute its policies and principles.
III. UNCERTAINTY AND BIASNESS
International law is bound to have multiple uncertainties, there have been certain systematic uncertainties at higher level. International law has more than once been uncertain in deciding whether to rule against a state or defer to the state, the international courts confront the compliance of this dilemma in context of uncertainty. Favours, assistance, privileges etc…. are most commonly witnessed in international law. Uncertainty leads to biasness. Adopting the behavioral approach to international law, we focus on actual behavior rather than assumed behavior of actors taking part in the international legal process. The central idea of this approach is that human cognitive capacities are limited—or bounded—by a variety of cognitive, emotional and social, or group-based biases.
IV.NON-INTERVENTION IN PRIVATE MATTERS OF STATES
In international law, the principle of non-intervention includes, but is not limited to, the prohibition of the threat or use of force against the territorial integrity or political independence of any state (Article 2.4 of the Charter). The principle of non-intervention in the internal affairs of States also signifies that a State should not otherwise intervene in a dictatorial way in the internal affairs of other States. The International Court referred in the Nicaragua case to “[t]he element of coercion, which defines, and indeed forms the very essence of, prohibited intervention” (ICJ Reports 1986, p. 108, para. 205). As Oppenheim’s International Law puts it, “the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question. Interference pure and simple is not intervention”.[8] There is no doubt that the principle of non-intervention remains a well-established part of international law. The prohibition of intervention “is a corollary of every state’s right to sovereignty, territorial integrity and political independence”
V. FUTILITY
International law failed to punish human rights abusers. There have been numerous violations around the globe that left peace and humanity shaken to the ground. One of the biggest examples of international organization I.e., ICC (international criminal court) is explained below:
The ICC was created in 1998 at an international conference dominated by weak and middle powers and by nongovernmental organizations (NGOs) The Court has jurisdiction over genocide, crimes against humanity, war crimes, and (at a later date) aggression. As the opening quotations suggest, the ICC’s aim is to punish and deter individual perpetrators of these crimes.
The ICC founders hoped to minimize political influence over ICC decision-making. The ad hoc tribunals for the former Yugoslavia and Rwanda were created by the UN Security
Council. The United States argued in Rome (the site of the ICC’s founding conference) that ICC prosecutions should be similarly limited to cases referred by the Security Council. But the prevailing parties in Rome believed that the Security Council–and in particular the opportunistic votes of veto-wielding permanent members–was part of the problem. They believed the Security Council’s failure to establish international tribunals for crimes in other trouble spots demonstrated that a Security Council gatekeeper would preclude legitimate prosecutions and thus undermine the aim of universal justice. Even worse, the permanent member veto would make the permanent five (U.S., France, United Kingdom, Russia, and
China) and their close allies immune from prosecution. These are the main reasons why the ICC is not likely to end impunity for human rights abusers or deter future war criminals. Of course, even if the ICC cannot try big-time human rights abusers, it might be able to try less significant ones. There may be times when signatory states (Nigeria and Sierra Leone are two possibilities) have civil wars that involve gross human rights abuses, and in which the prevailing or successor regime sends the defeated party to the ICC. Or there may be a cross border dispute in which a signatory captures a perceived war criminal and sends him to The Hague.
CONCLUSION
The article sets out the nature, the history and the structural background of international law, international criminal law, international court of justice etc…
The prevention of international crimes cannot occur without sovereignty. Violations of international criminal law were very frequent, for example, where there was no government to keep the functions in control. International law (and its powers) has a protective role that cannot be ignored here, at the very least until the UN or any other body plays its part. International law is helpful, where there are conflicts among states in order to reach a common point of understanding. Apart from this, international law is also significant in cases where the forces of rebel are fighting the government because its weak and small in territory (this was the case in Sierra Leone).
Apart from all the significances of international law it has proved to be a failure, as it has failed to achieve what was expected of it. The promises of peace and order still remain unfulfilled, the security of states is still being threatened, human rights abusers are moving about freely, war criminals are being forgiven and many more. However, the establishment of organizations such as ICC, ICJ, UNO etc… Have proved to be useful if free from uncertainties and biasness. Even though the results are less positive but not entirely negative.
Reference
- https://www.law.cornell.edu/wex/international_law
- legal.un.org. “Sources of International Law: : An Introduction.” 2008. Accessed May 4, 2023. https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf.
- Simons, Marlise, ed. “Without Fanfare or Cases, International Court Sets Up.” National Edition, July 1, 2002, Section; A Page; 3. l.
https://www.nytimes.com/2002/07/01/world/without-fanfare-or-casesinternational-court-sets-up.html
- Patten, Chris, ed. “Why Does America Fear This Court?” The Washington Post 70 (July 9, 2002): 89–104.
- Wikipedia. “Nicaragua v. United States,” 1986. https://en.wikipedia.org/wiki/Nicaragua_v._United_States
[1] https://www.law.cornell.edu/wex/international_law
[2] The creation of the Court represented the culmination of a long process of developing methods for the pacific settlement of international disputes, the origins of which can be traced back to classical times. www.icj-cij.org/history
[3] Under international law, a treaty is any legally binding agreement between states (countries). A treaty can be called a Convention, a Protocol, a Pact, an Accord, etc.; it is the content of the agreement, not its name, which makes it a treaty.
[4] legal.un.org. “Sources of International Law: An Introduction.” 2008. Accessed May 4, 2023. https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf
[5] https://www.law.cornell.edu/wex/sources_of_international_law
[6] Simons, Marlise, ed. “Without Fanfare or Cases, International Court Sets Up.” National Edition, July 1, 2002, Section; A Page; 3. https://www.nytimes.com/2002/07/01/world/without-fanfare-or-cases-international-courtsets-up.html.
[7] Patten, Chris, ed. “Why Does America Fear This Court?” The Washington Post 70 (July 9, 2002): 89–104.
[8] Wikipedia. “Nicaragua v. United States,” 1986.
https://en.wikipedia.org/wiki/Nicaragua_v._United_States.
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