Whether International Law Is a Law or Not?

Badirujjaman

Imagine we are on discussion about Realpolitik, about the Western intervention in the Middle Eastern states, about nuclear development for the shake of traditional security,  about the atrocities like genocides and systematic persecutions etc., suddenly one of us introduce various legal provisions of  international law into the motion.

Usually, if anyone of us has no ideas about this laws, using the perceptions based on international politics, we may conclude that this laws haven’t any utility in present world as we don’t figure out any enforcement regarding to this laws, so we dismiss  international law from the motion at very first sight.

Which inevitably rise the above question “whether this law (International Law) is really a law or not?” to those members who have an intention to spend its time to study the discourse. Will it be loss or invest that period he/she is going to give on studying the Course or just passing the exams?.

So as a beginner, the students who were sitting on the motion become so  confused because of their surroundings’ negative reaction to this law.

They become confused on:

• Whether is International Law is a law or not?

• Is there any enforcement mechanisms of this laws?

• Is there any Judicial set up or executive bodies incorporating to this Laws? Etc.

So, for a beginner, understanding the above question “Whether International Law is a law or not?” become essential.

It also remains necessary to them of searching the answer if they really want to

• identify the basic features of these laws, especially distinctive ones;

• separate the factions of law both domestic and International

• Understand the similarity and dissimilarity between two forms of law; and

• Overall, train their mind for future study of international law.

But interestingly the reasons for dismissing above discussion topics is the presets of our minds or our experiences about the existence of law. Here we directly or unconsciously relate the above topic- international law with domestic law.

Our preset of perceptions, whether it is international law or domestic law rotates around this three institutions namely legislation, executive bodies and judicial organs.

Means anyone doesn’t have root knowledge about the functions of international laws, compare them, based on earlier mindset, to domestic law making, promoting and protecting institutions. Moreover, they imagine of physical infrastructure of these institutions during comparisons.

Besides, we judge international law from domestic law’s vertical points:   “Law is the sovereign command of a nation” -means the creation of laws must have revealed from top to bottom, and all the subjects belongs this hierarchy must obey this sovereign command. So we rigidly don’t take something as a law unless their creation from higher authority; unless there is any enforcement mechanisms to implement these laws, unless there is any precedence or examples of commanding or execution.

So when we try to understand international law in the eyes of domestic legislation, execution and judiciary,  we feel disappointed.

We feel disappointment as we feel these three ingredients are not there (There is no institutions like world legislation, or world executive bodies or global judicial organs, compare to domestic scenario), as we imagine for the existence of physical infrastructure of these institutions, not function based. so we conclude International law is not law.

Besides, this ingredients, when we compare this law with domestic law based on materials (books), we feel again disappointment.

Then what should we do? Shouldn’t stay away from International law or wearing mask to protect from this external viruses .

What should we do?

• We should not oversimplified or generalized our statements based on our empirical ideas rather our analytical approach.

• We should not compare the factions of law with each other which are fundamentally different.

• We should understand both National law and International law are completely different doctrines.

They arise from different jurisprudence. The sources of international law are treaty, international customs, general principles, Judicial decisions, writing etc. And the sources of domestic law are constitution, common law, administrative acts, judicial proceedings etc

They applicable on different subjects. The subjects of international law are mainly two forms namely States and Non-State actors (including individual to MNCs), but domestic law has its jurisdiction over its territorial claim.

The have a different framework.

So if we conclude with these comparisons- the outcome will be out of your control.

To be continued…

Badirujjaman

IR 45

Leave a Comment

Your email address will not be published. Required fields are marked *