Posted: February 17th, 2022
Topic: INDICATORS TOWARDS PUBLIC INTERNATIONAL LAW BEING REAL LAW
Law is generally defined as a set of rules that govern societal interactions. The creation and enforcement of laws in this generic conceptualization are dependent on one’s school of thought. Legal positivists such as John Austin have argued that law is that which is created and enforced by the sovereign. As will be seen in subsequent parts of this right up, this has created one of the fiercest oppositions to the idea of public international law being real law (Hart et al., 2012). Natural law theorists, on the other hand, would support the idea that the law is made and enforced by a Supreme Being. Nevertheless, law remains a set of rules that seek to regulate human interactions, the creator and enforcer notwithstanding. Deriving from this definition of the law, public international law is that body of law which comprises of the principles and rules of conduct which States feel bound to and do observe in their relations to each.
The Nature of Public International Law
Public international law as defined earlier, is that body of law which comprises of the principles and rules of conduct which States feel bound to and do observe in their relations to each. Concisely put, it governs inter-State relations. This is contrasted from domestic law which mostly regulates inter-personal relations. Without delving into the substance of its creation and enforcement, public international law is created and enforced differently from domestic law. This differentiation will be brought out substantively in the later parts of this write-up (Ashworth & Horder, 2013a). Public international law originates from, among other sources, Treaties, Conventions, jus cogens, and Custom. Public international law is classified into numerous classes including international criminal law, law of international commerce, international law of the sea, and international human rights law, among others.
Persuasive Indicators of Public International Law Being Real Law
Rationale for Selection of These Indicators
While going through the next part, one must keep the following in contemplation throughout; real law is that law which is created and enforced by a sovereign. This is the legal positivist criterion of defining law. Therefore, the authenticity of public international law must be measured based on its creation, binding force and enforceability. This is the most accurate approach to assessing the authenticity of public international law as it places it side by side with domestic laws whose authenticity is not contested.
Formulated by Legislatures
Public international law is formulated in similar fashion as domestic law. For instance, under the United Nations international legal framework, laws are made by the United Nations Parliament. This Parliament debates and passes laws just like Parliaments of democratic States of the world. The United Nations Parliament is established under the UN Charter with the mandate to make law. Under the European Union legal framework, laws are made by the European Parliament (Bassiouni, 2013a). This Parliament is directly elected by the citizens of the EU after the expiration of a set period of time. It would follow, therefore, that the law made therein is no different from domestic law made by domestic Parliaments.
Contains a Binding Force and Sanctions for Breach
As Hans Kelsen conceded in his opposition to public international law being real law, public international law contains a binding force. For instance, whereas jus cogens mainly contains practices that are regarded as generally acceptable and breaching them offends general expectations, most rules of jus cogens have gradually between codified in international legal instruments with the effect that they have acquired a higher form of binding force (Sharma, 2020). This binding force also bears the aspect of sanctions for breach. Such sanctions may be discrete or overt, taking a myriad of forms which will be discussed subsequently.
Enforced by a Higher Authority: Discrete and Overt Enforcement
It is common knowledge that public international law is enforceable. For instance, the International Criminal Court, created under the Rome Statute, has adjudicated over and issued convictions on various criminal cases of an international nature. Most of these cases involve war crimes and genocides committed by persons in positions of power and responsibility. This is called overt enforcement. Discrete enforcement occurs through alternate forms including trade sanctions and embargos. This is a political solution as opposed to the former which is a judicial solution. Regardless of the form or mode of enforcement, public international law has a binding force and is enforceable.
Regulates Human Interactions
Just like positive law, public international law regulates the conduct of individuals in society, albeit at an international level. The present international human rights framework seeks to harmonize all domestic human rights laws of the different States to create what is termed as the ‘Universalist Approach’. Subsequently, these laws are adopted into the respective States via domestic laws where they regulate human interactions just like domestic laws. This aspect brings public international law to the same level as domestic law which is regarded as ‘real law’ (Andrews, 2017). An alternative argument has also been added to this end; States are merely legal and conceptual entities. They are not natural persons. Therefore, any law ever formulated, whether domestic or international seeks to bind natural persons and regulate their interactions.
The Hans Kelsen Argument Concession
Hans Kelsen, like John Austin, also opposed the classification of public international law as real law. The arguments of John Austin will be addressed in the subsequent parts of this write-up. This part will address the concessions by Hans Kelsen. According to Hans Kelsen, public international law was not real law as it was not created by a legitimate Parliament. However, the scholar and legal philosopher conceded to public international law having a higher enforcing authority (Ross, 2020). To this end, it is conceded that those who fail to honour the laws agreed upon by the other States of the world faced potential exclusion from trade, political and international interactions. This way, all States felt legally obligated to adhere to international legal provisions.
Possible Arguments Against Public International Law Being Real Law and Their Counter-arguments
Most proponents of the opposition against public international law base their assertions on two primary grounds; the first is that public international law lacks the aspect of commands issued by a sovereign, and the second is that any purported creators of such laws were not sufficiently elected lawmakers. The first point of opposition was mainly advanced by John Austin, while others have been brought up by scholars and in judicial arguments. These are addressed in this part of the write-up
The Argument in the Case of Roper v Simmons, 543 U.S. 551 (2005)
This case involved the imposition of the death penalty to murder convict aged below 18 years. During the proceedings, various legislators led by Tom Feeney, proposed a non-binding resolution mandating Courts not to be bound by international legal principles in adjudicating domestic conflicts. This case and the events surrounding it brought to bear the conflict between domestic and international laws. It exposed the apparently forgotten fact that some quarters in States’ leaderships are still opposed to the idea of international law being placed on the same level as domestic laws. Although these proposals remain unbinding, they are a proper indicator of the superiority debate between international and domestic laws.
John Austin’s Theory
A Legal Positivism, John Austin firmly advocated for all laws to have a sovereign commanding authority exercising governing powers on the populace. This was the basis upon which he attacked the authenticity of public international law. According to this scholar, international institutions formed either by States or by the coming together of States could not amount to a sovereign commanding authority. This was mainly because the decisions of such bodies could not be directly enforced upon the populace unless adopted by domestic governments of the respective nations (Finnis, 2011). Therefore, it was State actors exercising governing power through domestic laws rather than the direct application of public international law issued by a sovereign. To that end, it was argued that public international law lacks the aspect of sovereign commands and is thus not real law.
Counterargument to John Austin’s Theory
However, a classic response by H.L.A Hart settles this opposition. Hart’s counterargument, which other scholars such as Hans Kelsen have since conceded to be material, is that public international law has a sovereign command (Hart et al., 2012). This sovereign command is the union of the various States into institutions such as the EU and the UN, among others. The leaders of this sovereign are elected from the various democratic States of the world hence are no different from domestic sovereigns. Additionally, this counterargument also settles the allegation that the leaders and lawmakers at the international level have a democratic deficit as they are not elected. Each of these leaders are sovereigns in their respective States.
The debate on the authenticity of public international law being real law is an ongoing discourse. However, there exist convincing pointers to public international law gradually taking a definite form and assuming a semblance to domestic positive law. It suffices to state that this class of laws has grown past its ontology stage; public international law has developed past the stage of merely asserting principles to being a definitive area of enforceable law that governs the everyday lives of citizens. The traditional argument that public international law is an amorphous set of rules with no sovereign command or enforcer is clearly untenable in the modern international legal setting.
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