brightowusugyasi.files.wordpress.com€¦ · Web viewHart A, in his book entitled 'The Concept of Laws' disagree with the positivist explanation of law and argues that,

‘IS INTERNATIONAL LAW REALLY LAW?’

BRIGHT OWUSU GYASI

MA INTERNATIONAL LAW AND DIPLOMCY

SRN - 1304177

COURSE TUTOR- PROF. JEREMY LARKINS

Bright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank

Confronted with the pluralisation of the exercise of public authority at the

international level and the retreat of 'International Law' as a regulatory

instrument.1 International legal scholars have engaged in two survival

strategies.2 On the one hand, there are international legal scholars who

have tried to constitutionalise traditional 'International law', with the view

to enhancing its appeal and promoting its use by global actors.3 On the

other hand, there are scholars who consider any charm offensive to

induce global actors that cast their norms under the aegis of classical

'International Law', a lost battle, which they have embarked on a de-

formalization of international law on the basis that it not law.4 This has led

them to loosen the meshed fabric through which they make sense of

reality.5

In affairs of universal concern, it is 'International Law' that governs the responsibilities and

obligations of each 'State', organisation or individual. In the past decade, the Globe has

1 Jean d'Aspremont,The Politics of Deformalization in International Law [online]. (20112). Available from:

<http://www.gojil.eu/32-abstract-aspremont.html>. [Accessed 16.05.2014].

2 Ibid3 Ibid4 Ibid5 IbidBright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank

become even more linked with large increase in communication and technology, as well as

an enhance reliance on other 'States' for resource and services.6 Despite the doubt by some

prominent scholars, 'International Law' is both relevant and necessary for international

partnership at every level.7 On a day to day basis, 'International Law' works efficiently with

little or no cognisance by the participants and without any detectable seems. One can travel

internationally, football games are broadcast globally, international partnerships are made

possible, postal and electronic mails travels across borders due to the effectiveness of

'International Law'.8 Despite all this, there are scholars who hold the view that,

'International Law' is not 'Law'. This has initiated a debate among prominent international

legal scholars, striving to address the hypothesis: 'Is International law Really law?'. The

answers to this question will be the main focus of my essay work. In the light of this, the

essay has been divided into three main sections. The first part provides an introduction to

the background and outline the key term with relevant literature review. The following

section will delve into the discussion 'Is International Law really Law?' , which informs my

conclusion.9

According to Beckman R, and Dagmar B, 'International Law' is a body of rules and principles

of general application dealing with the conduct of 'States' and of international organisations

6 Janet Munro-Nelson,A BRIEF OVERVIEW OF INTERNATIONAL LAW, [online]. (2009,). Available from: <http://the-

beacon.info/blog/wp-content/uploads/2011/03/Overview-of-International-Law.pdf>. [Accessed 7.05.2014].

7 Ibid

8 Ibid

9 IbidBright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank

in their international relations with one another and with private individuals, minority

groups and transnational companies.10

The American Law institute (ALE), Buergenthal and Murphy concurs with the definition

offered by Beckman R, and Dagmar B. According to this scholar's 'International Law' is 'Law'

that deals with the activities of 'States' and of international organisations, as well as some of

their relations with persons, whether natural or juridical.11

I do concur with the explanation given by Beckman R, and Dagmar B, and the American law

institute, this is because it provide a very concise and in death understanding of the concept

of 'International Law'. These two definitions highly contradicts with the definition offered by

the positivist. John Austin, defines law as a: 'Command given by sovereign, backed by threat

of sanctions'.12 From the definition offered by Austin, then one will conclude by saying that,

'International Law' is not law.

However, the weakness I find with this explanation is that it is not the existence of central

10 Beckman R, and Dagmar Introduction to International Law [online]. (1989). Available from:

<http://www.ilsa.org/jessup/intlawintro.pdf>. [Accessed 10.05.2014].

11 The American Law institute,Buergenthal and Murphy,A PRIMER ON INTERNATIONAL LAW [online]. (2002). Available

from: <http://www.policyconcepts.com/Primer_on_International_Law.doc>. [Accessed 10.05.2014].

12 John Austin,cited in,Jana Von Stein,IIntterrnattiionall Law:: Underrsttandiing Complliiance and Enfforrcementt [online].

(2010). Available from: <http://www-personal.umich.edu/~janavs/vonstein-compendium.pdf>. [Accessed 14.05.2014]Bright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank

enforcer that determines a legal system but rather law is determine by a union of primary

regulations which seeks to define 'what is and what is not'.13

Hart A, in his book entitled 'The Concept of Laws' disagree with the positivist explanation of

law and argues that, 'International Law' is sufficiently equivalent to law and should be

considered as such. He further asserts that, the actors in 'International Law' thus national

and international tribunals, diplomats, politicians believes that, the rules encompasses the

status of law and should be regard as such.14 Bull G also concurs with Hart A, and disagrees

with the positivist view in addition to assertingthat, it is not the availability of enforcement

mechanism that determines legal systems, rather legal systems are determine and define by

rules, regulations and agreement.15

Austin J, has been largely criticise by Hart A, in his article entitled 'The Concept of Law' he

disagrees with John A on his idea that, law is a command backed by threat. Hart A, however

liken this idea of John A, to the role of an armed robber in the bank, and tries to draw a

distinction between the armed robbers orders and legitimate laws. I concur with Hart A, on

his disagreement over Austin J, this is because, per Austin J, explanation of law, the armed

robber at the bank orders will become law at that particular moment of attack, since he has

the powers to enforce his orders.16 Hart A, further asserts that, not all laws are coercive

13 Ibid14 Hart A ,the concept of law,ISBN 0-19-876122-8 [online]. (1743). Available from:

<http://en.wikipedia.org/wiki/The_Concept_of_Law>. [Accessed 18.05.2014].

15 Ibid


some laws to him are facilitative in nature. Hart A, further critics Austin A, by saying that, his

description of law is improper, suggesting that, laws may have numerous sources and the

initiators or makers of laws themselves are subject to the laws they create.17

According to the realist school of thought on the legitimacy and validity of 'International

Law', and argue this not 'law'and the essence of a legal system that lies in its enforcement.18

This is because 'International Law' does not have a legal frame structure, such as the

legislature, courts, with the authority to command sanctions and the lack of enforcement

mechanism such as the police to ensure compliance, 'International Law' is not law.19 One

weakness I found with the realist account on 'International Law' is that, not even all

domestic laws are been enforced, and that in international relations enforcement is usually

substitute with compliance.

Fisher R, disagrees with the realist view and argues that most of what we call 'law' in

domestic sense are also not enforceable. He noted that, in cases where the 'State' is a

defendant in a case involving constitutional law and a private party. How then will the

private party enforce the judgement if delivered in his or her favour.20 This example as 17 Ibid

18 Peter Danchin, Columbia University,International Law and International Relations [online]. (1998). Available from:

<http://ccnmtl.columbia.edu/projects/mmt/udhr/preamble_section_4/concept_history.html>. [Accessed 12.05.2014].

19 Ibid

20 Roger Fisher,cited in Anthony D'Amato,Is International Law Really ‘Law’? [online]. (2010). Available from:

<http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1102>. [Accessed 12.05.2014].Bright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank

illustrated by Fisher R, only sought to expose the weakness in the realist view. I concur

largely with the assertion made by Fisher R. Upon further thoughts, one will realise that, in

instances where 'States' loses cases that involves taxes, social security benefits, just to

mention a few. The 'State' only go ahead to comply by the judgement even though the

private party has no enforcement authority to enforce the judgement.21 They do so by the

reason of compliance which is a cardinal principle in 'International Law', based on this it will

be improper for the realist to suggest that, because there is no enforcement mechanism in

'International Law' is not law. In most cases where the 'State' loses legal suits against private

individuals they comply, and same can be said of 'International law'.22

Henkin L, however concurs with Fisher R, and disagrees strongly with the realist view, in his

opposition to the realist view as captured in his book entitled 'How Nations Behave 'he

advanced the following argument:

Almost all nations observe almost all principles of 'International law'

and almost all their obligations almost all of the time23

I concur with Henkin L, assertion this is because, in domestic laws when individual win cases

against the 'State'. The 'State' do comply which according to the realist makes law valid,

same is been said here by Henkin L, that, almost all 'States' obeys 'International Law'. 21 Ibid

22 Ibid

23 Henkin L,cited in,Peter Danchin,International Law and International Relations, [online]. (2001). Available from:

<http://ccnmtl.columbia.edu/projects/mmt/udhr/preamble_section_4/concept_history.html>. [Accessed 12.05.2014].


Henkin L, further advances his argument by saying that, just like laws in most 'States',

'International Law' is observed by 'States' as a national policy, shared with other 'State'

under the principle of reciprocity in an effort to achieve an orderly society.24 He believes

that the legality of 'International Law' has contributed in shaping the nature of international

society. I do again concur with Henkin L, on his claim, this is because, international

partnerships are made possible due to the effectiveness of 'International Law', the UN,

world bank, international relations and foreign policies all operate in a legal framework of

'International Law'. The legality of 'International Law' shapes the nature of this

organisations.25

In his response to the realist view that 'International Law' is not law because it has no

judiciary, legislature, and police to enforce it decision, Henkin L, pose this question to the

realist:

In a system without a world judiciary, legislature, 26 how was it

thought that by embedding human rights in 'International Law' and

institution you would achieve any measure of protection or

compliance by 'States?27

24 Ibid

25 Ibid

26 Ibid


Shirley V, concur with Henkin L, she also argues that, 'International Law' is a 'Body of

Timeless Absolutes'.28 She asserts that itis good for all seasons and all places, and suggests a

right approach in actual problem affairs; and further argues that, 'International Law' is 'law'.

It is present a legal frame work that is portrayed as a unified system with internal

coherence.29 I concur with Shirley V. This is because the legality of 'International law' has

gone a long way in sustaining global peace and development.30

The proponent of the neoconservative legal scholars and their allies argues'International

Law' is not really law, and according to them is because the nations who make it through

treaties and conventions do not really treat it as law.31 Goldsmith J, and Posner revealed in

their book entitled 'The Limits of 'International law', that even though 'States' sign onto

treaties but they do not really feel bound by them.32 One limitation I found with this

explanation is that, it does not provide specific evidence of non-compliance by 'State'. This is

because 'States' feel bound to comply by 'International Law' for the reasons of reciprocity,

28 Shirley V. Scott,International Law as Ideology: [online]. (1994). Available from: <http://www.ejil.org/pdfs/5/1/1245.pdf>.

[Accessed 12.05.2014].

29 Ibi

30 Ibid

31 Jack Goldsmith and Eric Posner,cited in,Scott Horton,Is International Law Really Law, [online]. (2010). Available from:

<http://harpers.org/blog/2010/03/is-international-law-really-law-six-questions-for-michael-scharf/>. [Accessed

17.05.2014].


reputation, sanctions and shame. Henkin L, however, disagrees with this assertion by

arguing that almost all 'States' do respect 'International law' and treaties, and that no 'State'

has ever admitted that its actions are contrary to 'International law' agreement or

treaties.33 For example, the United States government justified their Iraq invasion on the

reason of preventive self defence under article 51.34

The analytical school of jurists, marshalled by Austin J, further argues that 'International

Law' is not law, because there is no such superior to command 'International Law'. In

addition, theyasserts that'International Law' does not enjoy the sanction of any coercive

authority35 These jurists also puts forth the idea that there is no competent courts to

interpret 'International law'.36 However, I disagree strongly to this assertion by Austin J. This

account of the Jurist has a variety of limitations. The claim that there is no court to interpret

international law is completely false as there exist the International Court of Justice, and

several courts of arbitrations which interprets 'International law'. Several individuals have

been sanction, and some others convicted, including former Liberian president, Charles 33 Louis Henkins,How Nation Behave: Law and Foreign Policy(New York: Columbia University Press,1968

34 Ibid

35 John A,cited in Ankita,4 most essential criticism of International law [online]. (2012). Available from:

<http://www.preservearticles.com/201106248506/4-most-essential-criticism-of-international-law.html>. [Accessed

23.05.2014].


Taylor; the former president of Iraq, Saddam Hussein; and the former president of the Ivory

CoastLaurent Gbago.37 The contemporary school of thought referred to as the 'Historical

School of Jurists', however, disagrees with the 'Analytical School of Jurists', led by John A,

they argue that, 'International law' is the same as municipal is law. They believe that

'International law' has similar sources and power behind it just as municipal law does, and

endorse the legality of 'International law' on these grounds.38

Amato A, disagrees with the assertion of the 'The Analytical School of Jurists' marshalled by

John A, he argues that, 'International law' is enforce through reciprocal entitlement

violation. He asserts that, the violation of 'International law' may of the same as the

entitlement, he believes that is a very effective process. 39 I concur with the account given by

Amato A. this is because 'States' for the reason of reciprocity and reputation will be

motivated to comply by 'International Law' so as to earn good reputation in the

international arena. Amato A, further asserts that 'International law' is as effective as

'Domestic Laws'.40

According to Thomas H: 'Law is the formal glue that holds fundamentally disorganize

societies together'.41 His position is that, 'International law' is not law, because 'Law': 'was a

37 Ibid

38 Ibid

39 Ibid


but a command of a sovereign enforced by sanction'.42 I disagree with Thomas H's assertion

because not all laws are enforced by sanctions. Some domestic laws are enforced by

reciprocity and the reason of compliance, using a situation where a private individual in

domestic law wins a suit against the 'State', even though the individual is not a sovereign

authority, and has no power of enforcement. Yet the 'States' do comply by the reason of

reputation and reciprocity.43

Austin J, in his book,'The Province of Jurisprudence', however, concurs with the assertion

made by Thomas H, and argues in support of Thomas A's assertion that:

''The law obtaining between nations is not positive law: for every law

is set by a given sovereign to a person or persons in a 'State' of

subjection to its author''44

I strongly disagree with the claims made by Autin J. My reason of disagreement is firmly

rooted in the American constitution. This is because even some domestic laws, such as, the

overall American constitution does not take into account any of the criteria prescribed by

John A. Article 6, paragraph 2, of the American constitution:

41 Thomas Hobbes,cited in,Robert F. Turner,International Law Really is Law [online]. (1998). Available from:

<https://www.fed-soc.org/publications/detail/international-law-really-is-law>. [Accessed 15.05.2014].

42 Ibid

43 Ibid


This constitution and the laws of the 'United States' which shall be

made in pursuance thereof: and all treaties made, or which shall be

made, under the authority of the United States, shall be supreme law

of the land.45

Turner R, however, disagrees with Thomas H, and John A, and argues that, going by the

claims of Thomas H, and John A, one will conclude by saying that the United States of

America constitution is not law.46 The U.S constitutional text does not categorically establish

structures among the types of supreme law. In addition Turner R asserts that the United

States constitution higly acknowledged treaties under 'International Law'.47 and argues again

that, the U.S. constitution acknowledges 'International law' as legitimate law for the

successful organisation of the international system.48 He believes that most countries, other

than the United States, acknowledges treaties as law. I concur with the claims of Turner R

because the 1992 Republican Constitution of Ghana, also acknowledges treaties as law.49

This in a larger sense endorses the legality and the legitimacy of international law, and

45 Constitution Of the United States,George Read,John Blair, [online]. (1787). Available from:

<http://www.archives.gov/exhibits/charters/constitution_transcript.html>. [Accessed 16.05.2014].

46 Robert F. Turner,International Law Really is Law [online]. (1998). Available from:


47 Ibid48 Ibid49 IbidBright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank

according to Turner R, treaties in 'International Law' have an absolute binding with regard to

their legal obligations.50

Turner R, again responded to the positivist idea of lack of sanctions mechanism in

'International law' by arguing that 'sanctions', and enforcement apparatus: 'has more to do

with controversy of whether international law is effective rather than with whether

'International law' is 'law'.51 I concur with this account by Turner R, for the reason that

'International law' not been effective as suggested by the positivist school of thought, due to

lack of a sanction mechanism, which has got more to do with effectiveness of 'International

Law', and not the legality or legitimacy of 'International Law'.52

In opposition to the assertion made by Austin J, that 'States' do not feel bounded by

'International law'; Turner R believes 'States' respect and acknowledge 'International Law'.53

He indicates many instances where there has been a perceived breach of 'International law'.

'States' in their acceptance to the legality and legitimacy of 'International law' are quick to

defend their actions on the basis of clauses from 'International law'. 54 I agree with him on

this claim because there are no 'States', as I indicated earlier, have ever admitted that their

50 Ibid51 Robert F. Turner,International Law Really is Law [online]. (1998). Available from:


52 Ibid

53 Ibid


actions are in breach of 'International law'. This goes to confirm the trust of 'States' in

'International law'. Having in mind the legal implication of the breach of 'International law'55,

according to Turner R , Adolf Hitler's invasion of Poland, as well as Kim II Sung's invasion of

South Korea was justified on the notion of 'Self Defence's coded in 'International law.56 No

'State' has ever challenged the legality of 'International law', butrather seeks to justify their

action by using sections of 'International law.57 The most popular articles of 'International

law' have been used bu seversal 'States',including Article 2(4) and Article 51. Tthe United

States government justifies its invasion of Iraq as acting in an anticipation of preventive self-

defence under Article 51 of the UN charter. The United States recognises the legitimacy and

legality of 'International law' in it constitution.58

I conclude by returning to the hypothesis posed at the beginning of this study: 'Is

International law really law?'. In my candid opinion International law is really law. I take

strong opposition to the positivist view that international law is not law. The mere fact that

some 'States' occasionally disobey some rules of 'International Law', does not mean the

rules are not rules of law.59 This is because even in domestic law, some break the law

55 Ibid

56 Ibid

57 Ibid

58 Ibid

59 Anthony D'Amato,Is International Law Really ‘Law’ [online]. (2010). Available from:

<http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1102>. [Accessed 13.05.2014].Bright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank

frequently.I concur concur with Amato D, that physical force is not an essential requirement

of law, asthe positivist would want us to believe. but The sanction argument by the positivist

also falls flat60 because the International Court of Justice has been in existence for almost

50 years now. There have been instances with a lot of cases that has been tried and

discharged by the International Court of Justice, notably the case involving former Liberian

president Charles Taylor.61

REFERENCE

1. John Austin,cited in,Jana Von Stein,IIntterrnattiionall Law:: Underrsttandiing Complliiance

and Enfforrcementt [online]. (2010). Available from:

<http://www-personal.umich.edu/~janavs/vonstein-compendium.pdf>. [Accessed

14.05.2014]

2. Henkin L,cited in,Peter Danchin,International Law and International Relations, [online].

(2001). Available from:

60 Ibid61 IbidBright Owusu Gyasi – President/Founder Mama’s Foundation Policy think Tank

<http://ccnmtl.columbia.edu/projects/mmt/udhr/preamble_section_4/concept_history.ht

ml>. [Accessed 12.05.2014].

3. The American Law institute,Buergenthal and Murphy,A PRIMER ON INTERNATIONAL LAW

[online]. (2002). Available from:

<http://www.policyconcepts.com/Primer_on_International_Law.doc>. [Accessed

10.05.2014].

4. Shirley V. Scott,International Law as Ideology: [online]. (1994). Available from:

<http://www.ejil.org/pdfs/5/1/1245.pdf>. [Accessed 12.05.2014].

5. Hart A ,the concept of law,ISBN 0-19-876122-8 [online]. (1743). Available from:

<http://en.wikipedia.org/wiki/The_Concept_of_Law>. [Accessed 18.05.2014].

6. Peter Danchin, Columbia University,International Law and International Relations

[online]. (1998). Available from:

<http://ccnmtl.columbia.edu/projects/mmt/udhr/preamble_section_4/concept_history.ht

ml>. [Accessed 12.05.2014].

7. Roger Fisher,cited in Anthony D'Amato,Is International Law Really ‘Law’? [online]. (2010).

Available from: <http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?

article=1102>. [Accessed 12.05.2014].

8. Roger Fisher,cited in Anthony D'Amato,Is International Law Really ‘Law’? [online]. (2010).

Available from: <http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?

article=1102>. [Accessed 12.05.2014].


9. Beckman R, and Dagmar Introduction to International Law [online]. (1989). Available

from: <http://www.ilsa.org/jessup/intlawintro.pdf>. [Accessed 10.05.2014].

10. Janet Munro-Nelson,A BRIEF OVERVIEW OF INTERNATIONAL LAW, [online]. (2009,).

Available from: <http://the-beacon.info/blog/wp-content/uploads/2011/03/Overview-of-

International-Law.pdf>. [Accessed 7.05.2014].

11. Jack Goldsmith and Eric Posner,cited in,Scott Horton,Is International Law Really Law,

[online]. (2010). Available from: <http://harpers.org/blog/2010/03/is-international-law-

really-law-six-questions-for-michael-scharf/>. [Accessed 17.05.2014].

12. Louis Henkins,How Nation Behave: Law and Foreign Policy(New York: Columbia

University Press,1968

13. Anthony D'Amato,Is International Law Really ‘Law’ [online]. (2010). Available from:

<http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1102>.

[Accessed 13.05.2014].

14. Thomas Hobbes,cited in,Robert F. Turner,International Law Really is Law [online].

(1998). Available from: <https://www.fed-soc.org/publications/detail/international-law-

really-is-law>. [Accessed 15.05.2014].

15. Constitution Of the United States,George Read,John Blair, [online]. (1787). Available

from: <http://www.archives.gov/exhibits/charters/constitution_transcript.html>. [Accessed

16.05.2014].


16. Robert F. Turner,International Law Really is Law [online]. (1998). Available from:

<https://www.fed-soc.org/publications/detail/international-law-really-is-law>. [Accessed

15.05.2014].


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brightowusugyasi.files.wordpress.com€¦ · Web viewHart A, in his book entitled 'The Concept of Laws' disagree with the positivist explanation of law and argues that,