Philosophy of International Law
Authored By- Pooja Koul
Keywords- normative dimension, international law, normative theorizing, human rights, humanitarian intervention
This article emphasizes the task of framing some of the central issues of the philosophy of international law. It tends to the normative dimension of international law—the ethical theory of international legal doctrine and establishments—not what Hart would call the analytical dimension and not the epistemology of international law. It builds up an idea of the connection between normative theorizing about universal law and the real factors of the present state-centered international system. It expresses the majority of the issues a normative theory of international law must address, showing the key decisions, which a theorist faces, and consequently recommends a plan for additional research. It likewise examines human rights, humanitarian intervention, and the conditions for the legitimacy of governments which will have direct and genuinely clear implications.
What is international law?
International law or law of nations, the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors. British jurists, Jeremy Bentham used the words international law for the first time, in 1780. Since then, these words have been utilized to indicate the assortment of rules which manage the relations among states.
Nature of International Law
International law is not a law, The question is still under hot debate among jurists. This controversy depends upon the definition of the word ‘law’. If we subscribe to the view of Hobbes, Austin and Pufendorf then international law cannot be included in the category of law. Because according to the law is the command of sovereign enforced by superior political authority and backed by sanction.
In support of Hobbes, Austin and Pufendorf jurists like Holland, Bentham, Jethro brown, etc.; put forward the following arguments:
1. In municipal law, there is a determinate superior political authority that doesn't exist in international law.
2. International law lacks sanction which, according to the aforementioned jurists, is an essential element of the law.
3. International law lacks effective legislative machinery, executive machinery, and the potent judiciary which are necessary for the enforcement of the law.
4. Some writers call international law a quasi-law.
International law is law
Criticism: the above view which denies the legal character of international law has been severely criticized by a large number of jurists.
On the other hand, if we subscribe to the view that the term ‘law’ cannot be limited to the rules enacted by the superior political authority, then international law can be included in the category of law.
The term law cannot be limited to rules enacted by the sovereign. As per Sir Henry Maine in primitive society, there was no sovereign political authority yet there was law.
It has been pointed out by some of the jurists that sanction is not an essential element of the law. Even if it is regarded as an essential element then it would be wrong to say that international law has not to sanction behind it. Public opinion is considered to be the ultimate sanction behind the binding force of international law and for the matter, behind any law. Indeed, international law is frequently violated but it does not mean that it is not a law. Because frequent violations of law indicate the weakness of enforcement machinery. The legality of rules and enforcement of rules of law are two different things.
Kinds of International Law
There are two kinds of international law:
1. Public international law- International law comprises mainly of the rules recognized by states in their relationships with each other and mostly arises out of international customs and treaties. Public international law, for its major parts, deals with the states and to a lesser extent deals with the individuals. It is not a part of municipal law. Only customary rules of international law are considered to be part of the domestic law of a state. There is no such problem in the field of public international law. There is no such problem in the field of public international law.
2. Private international law- rules of private international law are framed by the legislature of state and recognized and developed by state courts. It deals with individuals only. It is a part of municipal law. It determines as to which law will apply in a case having a foreign element. It also determines the court which will have jurisdiction to decide the issue in question.
Weaknesses of International Law
· It lacks effective la making authority
· It lacks effective machinery or authority to enforce its rule
· I.C.J. has no compulsory jurisdiction
· The sanctions behind international law are exceptionally frail
· An extraordinary restriction of global law is that it can't intercede in the issues which are inside the household locale of states
· Many rules of universal law are questionable and dubious
· International law has neglected to keep everything under control and harmony on the planet.
Basis of International Law
There are two main theories which attempt to explain the basis of international law:
· Theories as to the law of nature- In the 16th and 17th centuries, the jurists were of the view that international law is based on the law of nature. According to this theory, international law has been followed by states because it is the law of nature which is a higher law. It was regarded as the divine law. According to Hugo Grotius, natural law is the dictate of the right reasons. His followers applied the law of nature as an ideal law that was founded on the nature of man as a reasonable being.
· Positivism- This theory is based on the actual practice of the states. It has been pointed out that the will of states is the main source of international law. It is said that international law is binding because states have consented to the rules of international law. Bynker-Shoek, one of the chief exponents of the positivist school. According to him “will of the states is the main source of international law.” The consent of the states may be of two types: Express consent and Implied consent. Martens and Anzilotti were the other exponents of this theory.
The philosophy of international law tends to focus on the ethical theory of international legal doctrine and establishments. It builds up an idea of the connection between theorizing about universal law and the real factors of the present state-centered international system.