Term Paper: Is International Law Really Law?

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¶ … Enforcement of International Law

The argument against international law

International law that is defined as the body of law that is used to effectively govern the legal relationship among or between sovereign states and nations has attracted a protracted debate on whether it is really law. International law has also been noted to consist of rules as well as general application principles that deals with the conduct of states as well as international organizations in regard to their international relations with each other as well as with minority groups, private individuals as well as transnational corporations (Beckman and Butte 1).Several scholars have engaged in arguments with the aim of determining if international law is really law. D'Amato (1) pointed out that several scholars have a lot interests in referring to the international law as "law." He further pointed out that there are several arguments that treat international law as law, quasi-law or a near law.

The enforcement viewpoint

International law has been argued to be enforceable only if the affected sovereign nation recognizes it. This is to say that international politics is part of international law enforcement. It has been pointed out that in certain cases, international law is unenforceable. As an illustration, should the United States be the defendant in a case entailing a breach of constitutional law, it becomes tricky how the winning party would enforce their judgment against the U.S.The dilemma is in cases where the U.S. losses in a case.

There are various ways of thinking about the subject of law. In a given domestic system, law is thought of as a set of rules that are applied in the governing of issues used in controlling the life of citizens. The rules are created by the legislature, then interpreted by the judiciary as subsequently enforced by the government through the executive. The police are often used to force the citizens to abide by these rules. The framework for the international law however lacks the legislature, executive, judiciary and the police force to enforce it. The fact that authority exists to ensure that there is compliance with the rules does not mean that law does not exist. There is an element of law that still exists in this setting, even though it may be applied as well as enforced in various ways. International law can therefore to an extent be regarded as a "law" having a specials status.

The enforcement of international law

The enforcement of international law forms the main problem with international law (D'Anieri 368).This is because any given law makes sense if it can be applied to everyone. The question is what transpires when a sovereign state, a corporation or a private individual violates the set laws that have been put in place. The domestic laws heavily rely on the process of innocence or guilt determination, the assignment of a penalty as well as the application of the penalty. Enforcement of the law marks a major issue in the subject of international law. Two mechanisms exists for the enforcement of international law. The first one is enforcement by international bodies like the UN and International Criminal Court (ICC).The second one is self-enforcement by the respective states.The judgment of international law is also debatable. The weakness as well as the inconsistencies in international law enforcement leads to the questioning if international law should indeed be law. International law has been observed to lead to a contraction of terms (D'Anieri 372). States have been noted to obey international laws in cases that it suits their own interest (D'Anieri 373). Certain scholars argue that international law is really law since it has certain influence on international behavior.

The argument against international law

According to economic structuralists and realists, the concept of international law is indeed irrelevant (D'Anieri 373).They insist that international law is an oppressive tool that is used by the strong nations and corporations to control the weak ones.Law is defined as a set of rules and regulations that dictates how people relate to each other in a society. Law describes what is good or what is bad. Law applies to different levels including local, community, national, regional and international. The most popular category is the national level where law at this level is written inform of Constitutions governing a country; at this level law is therefore enforced through a set of institutions and determines different aspects in a nation including, politics, economics a social relations.

In a country, the laws are always formulated through a law making organ known as legislator where members are supposed to debate and make the laws to govern their country. In some cases, referenda have been undertaken for the citizen to participate in making of the laws to govern them. On the other hand, after the laws have been made, there must be interpreters incase of dispute and law enforces to ensure compliance hence setting up what is called government.

At the international level, it is very important to note that all legal systems deals with the same basic issues of law but what makes it look different is that each country always has its own set of legal laws which might be different from others. It is always very common to find that provisions and applications of certain laws in one country is contrary to another country an example being the law of contract.

International laws becomes different to the common law in that when in each country, there is government to ensure the law is not broken and also interpreted as required. At the international level, there is no universal government or parliament to make the laws. It is therefore setting a challenge to the international law to be referred to as law. International law is always described in form of treaties, conventions, declarations and chatters where any government either adopt or not adopt by appending signature on the same.

Currently, there are several international conventions, treaties, declarations, statues and conventions. These are always called the international instruments and countries have been involved in adopting. A good example is the Universal Declaration on Human Rights, the famous Rome statute among others. These declarations have been signed by several states to become part of their law while others like United States of America has not adopted the Rome statute which details on crimes against humanities. It is also important to note that the United Nations are in most circumstances very significant in the formulation, enactment and enforcement of the international law.

Arguments have been put across that the international law has always been abused by the super power nations in order to suit their interest. The best example was the invasion of Iraq in 2003 by the Bush administration on accounts that Iraq had stockpiled weapons of mass destruction and was supporting terrorist attacks through Al Qaeda. The United States of America argued that they invasion was justified under the doctrine of Self-defense. During that time, there was little debate about the same because many Americans largely trusted their government about matters involving their security after the twin's tower bombing.

In the above example, the question was why did the United States of America not wait for the Iraq to come and attack them in United States of America then they act at that point, or why did they not intensify security within the American territories? Months after the attacks, it was revealed that the American intelligence did not in fact support the conclusion which was made by their government. In the contrary, Torture is regarded as an inhuman activity and is condemned by the Rome statute, but several cases of torture were reported in the Iraq operation. When the cases were reported to the United Nations, very little were done as United Nation Security Council had authorized use of force in Iraq as early as in 1991

Laws are viewed differently by people. In domestic legal schemes, people tend to view it as the involvement of the governments to regulate its citizens' lives. The rules are usually made by legislature; they are then interpreted by judiciary, and thereafter enforced by executive through the use of police to make citizens to abide by the laws.

People are arguing that there is no need for international law if there is no single legislature, no single judiciary, no single executive and also no single police force.

Therefore, because there are no general influence to force conformity with the laws is not implying that law does not exists. Law is still in existence, despite the fact that it might be enforced and practiced in diverse ways.

When international law's aspirations is looked at via rule compliance's lens, the result is insufficient understanding and scrutiny of the different complex projects and purposes that a number of actors are imposing and transposing on global legality, and particularly a propensity to distort and oversimplify the relationship between international law and politics.

Nations and also other actors like corporations -- instead of just abiding… [END OF PREVIEW]

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