"There is no real system of International Law - It is merely a reflection of International Politics" Discuss.

What is the relationship between Municipal Law and International Law?

In Modern International Law of Hingorani, R.C. has presented five fundamental theories for the relationship between municipal and international law. First, Monism explains that International Law and Municipal Law as one system where International Law has the primary over Municipal Law. This theory denies dualist allegations that international law and municipal law have different source as well as different subjects. “States are subjects of international law while individuals are subject of municipal law, in the ultimate analysis; individuals become subjects of international law. Municipal as well as international law are part of one universal legal system, which is binding on human beings, either collectively or singly. Supporters of monism theory consider international law as superior to national law” 

Second, the dualist would believe that a Municipal court would apply Municipal Law in a situation where International Law and Municipal Law would be in conflict. Their contention is that international law and municipal law are two different systems because of basic points of difference between the two. “Dualist contends that while international law regulates relations between States, municipal regulates relations between individuals. Again international law develops through that consent of States while municipal law operates by the will of sovereign. Others doubt the validity of international law without disputing the sanctity of municipal law.”

Third, Supporters of Transformation theory state that for any rule of international law to be observed under municipal law, it has to be transformed into municipal law. “This transformation may be by mere recognition of the customary rules of international law as part of national law or by specific incorporation of conventional law. In both cases there has got to be a transformation.” The transformation theory is said to have been inspired by dualist, who favour the supremacy of municipal law.

Another theory is Delegation theory, which the supporters contend that practices show that many rules of international law are left to States and national law for implementation. “Thus, the problem of implementation is delegated to national law.” This leads to the theory of delegation.

Lastly, the theory, which was created by Professor D.P.O. Connel, is Harmonisation theory. “He says that international law and national law are to be interpreted in such a way that there is harmony between the two laws. This may be considered as a rule of interpretation inasmuch as that rules of municipal and international law which may obviously be in conflict with each other are so interpreted as to be in harmony with each other.”

International Law and Municipal Law are the species of the common genus-law and both the branches of law effect the individual whose importance is progressively increasing in the international arena. Obviously, we could not decline that these both laws rely upon each other for implementation of its norms.

Why do we need to have International Law?

Generally, law is the legislative system or a rule made by the authority for the proper regulation of the community in controlling the human’s character or behaviour between individuals in society. Like international relations, there should be a rule, made by world authority, for the proper regulation in controlling character or behaviour between nation-states in global society. After the end of World War II, world is in the revolution age which needs the rule in managing and organizing this confused global society. Also in ‘Nationalism and World Order’ in ‘World Disorders’ stated that the resurgence of nationalism after the cold war, in a world in which states are increasingly interdependent, incapable of providing by themselves the service their citizens expect, and dependent on international cooperation. Therefore, international law is the significant issue in ruling the suitable manner of nation-states in international arena. From the Juridical Review in The law journal of Scottish Universities, 1990, Green, W. has presented the idea of international law and society that ‘The relationship between law and society is correctly identified by the Maxim ubi societas ibi jus. As one eminent political scientist accurately postulated, law can only exist within a social fabric and further: “Law is not as abstraction…No political society can exist without law, and law cannot exist except in a political society.” 

There are several motivated key factors according to the history of international relations which lead to the establishment of International Law system; Nuclear proliferation or Disarmament, Political Regime, Terrorism, Fragile Environment, Human Rights, and Intervention in Sovereign State. Firstly, arm race had been seriously focused in the 1960s and the 1980s, the competitive amassing of troops or armaments whereby each side tries to expand its military capacity over neighbor or at least not to remain at a disadvantage. The nuclear proliferation had become the most significant issue, and in the Cold War period. In world politics, the spread of nuclear weapons was regarded as one of the important areas on the arms control agenda. A portmanteau term, it covered two interrelated developments: horizontal and vertical proliferation. Actually, the idea of ‘spread’ really only applied to the first version, the horizontal. The non-proliferation treaty (NPT), an acronym for the Treaty on the Non-proliferation of Nuclear Weapons which is the multilateral arms control agreement, was opened for signature in July 1968 sought to address this problem in the first instance. However during the discussion on the treaty, the issue of vertical proliferation became locked into the deliberations. Vertical proliferation identifies the spread of nuclear weapons capabilities within the existing nuclear states. Especially, according to the signing of the 1968 treaty, the development of the multiple independently targeted re-entry vehicles – MIRVs by the United States and the former Soviet Union seemed too many to show pessimistic disregard for the obligation enshrined under the Sixth Article of the NPT. Furthermore, the other types of mass-destructive weapons are realized and considered into this aspect, biological weapons; such as nerve gas.

Secondly, the political regime is the significant aspect in the revolution in the Soviet Union in 1917, the World War I and II, and during the cold war period. The communism and democracy are the two major administrative supremacies in the world. Communism is the political ideology which aimed at the common ownership of land and capital and the elimination of the coercive power of the state. At that time, world has been divided into two main areas; Western and Eastern. The two major players in this phenomenon were the United States which was in the Democratic side and the Soviet Union which controlled the Eastern Europe and some countries in Asia with communism regime. The expansion of communism radically spread out and so intensively that the United States and its allies had to take place in preventing other untouched countries from this regime.

Thirdly, one of the major factors is terrorism issue, the use or threatened use of violence on a systematic basis to achieve political objectives by hijacking, hostage-taking, bombings, indiscriminate shootings, assassination, and mass murder, has become more violent in the Twenty-first Century. The most explicit tragedy was the attack on September, 11 in New York, which was aimed and suspected as the action of Al-Qaida. This disaster has shocked people all over the world and has commenced the international lawful procedure in dealing with terrorism. The United States and its allies have been tracking for terrorists who concerned in this action by its legal and military process. After this situation, the terrorism has been the significant issue in the world, and has been criticized internationally in order to prevent and secure themselves from terrorist’s action. Actually, the terrorism factor is not a newborn issue in international relations, but the recent disaster has just come up with the severe result.

Fourthly, the fragile environment is also the recent factor of global disorder. The consumption of states which leads to the large scale of environmental problem has entirely stated in Falk Richard, 1972; ‘The scale of modern technology is overflowing every political boundary. Whether it is a matter of radioactive fallout, carbon monoxide or other poison effluents, multinational corporations, computer technology, satellite broadcasting, or air and space travel, we constantly witness a drive toward operations on planetary scale. And yet most political behaviour continues to be dominated by the territorial state. States compete with one another for power, wealth, and prestige, and jealously guard their sovereign prerogatives. This competitive pattern generates conflict, waste, and distrust. Huge amounts of resources are devoted to national defence, collective violence is persistent and pervasive, and wars occur at many points on the planet.’ Obviously, the issue of global warming brought up by James Hansen to Congress in 1988 that the global warming had begun.  The global warming is the increasing level of carbon dioxide in global atmosphere which would raise its temperature. Moreover, other heat-trapping gases such as methane, chlorofluorocarbon (CFC), and nitrous oxide which spread in top atmosphere, retained heat from the sun and human industrial activities. Even though, the Tokyo Protocol has been agreed to all members in international society, there are not any effective solutions in several industrial and developing countries. Not only the global warming problem, global society now is facing various kinds of environmental problems; Nuclear waste, Deforestation, Species loss, Overfishing, Air pollution, and Fossil fuel overconsumption.

Fifthly, the human right is the newborn issue in global society. This issue mostly concerns in female and child which have never been considered. The human right is the notion that human beings have rights because they are human beings and not because they are citizens of state X or state Y is in terms of the practice of international relations, a relatively new one. Traditional thinking has it that international law is concerned primarily with states rights in particular rights associated with post Westphalian ideas about sovereignty and its corollary, non-intervention. Human rights, in so far that they were acknowledge, were subsumed under states rights, conventional wisdom being that international law was law between states whereas municipal law was law between individuals. International law rules framed in term of the protection of human rights against state interference are very largely a post-1945 phenomenon. Before then individuals were seen mostly as aliens and nationals, not as individuals.

Lastly, the issue of intervention is the considerable factor in concept of world government. The definition of intervention is defined in Martin Wight as ‘forcible interference, short of declaring war, by one or more power in the affair of another power. In principle, every state is independent in the management of its own affairs, and foreign interference is a violation of its right.’ After the colonization era, every sovereign state has set up governments and independently rules their territories. The most explicit example in this aspect is the independent movement in East Timor. The independent movement of East Timorese from Indonesia government had continued for decades after the decolonization from Portugal, Indonesia has intervened and claimed the privilege on this territory. Until the situation became violent in 1999, the United States and other nations’ properties were destroyed. Therefore, the Security Council committed intervene the internal affair of East Timor by INTERFET (International Forces in East Timor) with the purpose of settling the peaceful condition in this country. In addition, it was clear in communism era that the great power communism state had spread this ideology to connecting countries in order to create the great empire of communism by its power by intervened domestic politics.  

Is International Law Really Law?

From many studies and analysis, law students and laymen is highly sceptical about the idea of International Law. They believe that states have little respect for international law, and have no incentive to obey it in the absence of a supranational system of sanctions capable of being enforced against the law-breaker. In short, the popular belief that international law is not really law. Moreover, some critics regard the international law as a morality rather than law. However, international law is still being discussed and might be criticized it as the reflection of international politics.

From this research topic “There is no real system of International Law. It is merely a reflection of International Politics”, Michael Akehurst point out that states create international law for themselves and need not accept a new rule unless they agree to it; they need not appear before an international tribunal unless they agree to do so; and there is no centralized executive body with the task of enforcing the law. From this statement, it presents that the international law is not the real system of legislature. To what extent that I believe international law is not the genuine global legal procedure. Because if the international law, which is the authentic rule, really exists in global society, there should be the centralized body in enforcing and implementing international law, not only the International Court of Justice. Generally, we assumed that the United Nations which is the form of multi-national organization and enacts as the middle role player in international relations.

According to legislative organs in legislature system, the legislature of municipal law is the parliament which is the official legislative department of government in analyzing, criticizing, and indeed issuing the municipal law. While the United Nations General Assembly, which is the legislature of international law in establishing Treaties, Pacts, Agreements among nation-states. There are only Treaties, Pacts, and Agreements which is not binding to all nation-states. It indicates that there is no action would be taken if any states offend the multilateral agreement. Furthermore, the executive of municipal law is the enforcement, police officers or military forces, which play the role of executive. In contrast, the Security Council does not have its enforcement, but all Member States are obligated to carry out the Council's decisions in using of enforcement.

 

From my point of view, there are several evidences that ensure my opinion in the incomplete system of international law. For example, the United States has just broken the agreement in the intervention issue, accordance to the UN Chapter VII. Article 42 states that ‘Should the Security Council consider that measure provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’  The pre-emptive strike on Iraq of George W. Bush, he claimed this action for international peace and security. He mentioned that Iraq, under the wing of Sadam Hussein, created and collected the mass destruction weapons. Consequently, he declared the strike to Iraq without the agreement of the Security Council and its members, but only the assistance of its allies. In contrast, this action could be legal, if the United States could prove it and could present this issue to the Security Council for the agreement of the members. From this point, it seems that the action of U.S. president is against the United Nations Chapter, but there is no one accused his action or sent him to the International Court of Justice. It is because he is the president of the United States of America or because the United Nations belongs to the United States. Not only by this situation which made me believe that there is no real system in international law. There is another issue that motivates me to deem it.

International law is like the other kinds of law which the members of those societies have to accept and obey it. From my study in the environmental regime, the Kyoto Protocol has been collapsed even though it was accepted by many states in global society. This treaty is about the global warming problem which required the cooperation of every state in reducing the hazardous gases; carbon dioxide, chlorofluorocarbon (CFC), which can harm global atmosphere and can cause further consequences for the world environment. On the contrary, the United Sates and also Australia are on the sideline of this treaty because of their national interest.

To sum up, the establishment of international law is just the reflection of international politics and I perhaps mention it is just the rules of the great power states in controlling the world to proper their benefits. Although, there are various treaties, pacts, agreements in the international relations and UN Chapters, these could not be mentioned as international law. Because international law should be effective to every nation-state in the world, there should not be any exclusive or exempted states. Moreover, the articles in international law were created from the historical circumstances in international politics in preventing the repetitive problems. Explicitly, the United Nations has been established for peace and security purpose after the end of World War II. Furthermore, other treaties have been created after or during the situation, for example; Nuclear Proliferation Treaty (NPT). As can be seen in this essay, there is a conflict in this Treaty by great power states in the development of the multiple independently targeted re-entry vehicles – MIRVs by the United States and the former Soviet Union.

International Law could finally exist in international relations if all nation-states really accept the rules and appropriately behave themselves consistent with the global collective purpose, which was written in the United Nations Chapter. Article I, it presents the purpose of the United Nations are; To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breaches of the peace; To develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights for and for fundamental freedom for all without distinction as to race, sex, language, or religion; and To be a centre for harmonizing the actions of nations in the attainment of these common ends. Additionally, the international legal organization, the United Nations, should have the supreme authority in employing the international law to any offensive nations which infringe it without any influence by great power states.

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