International law is a law or not, Business Law and Ethics

Q. International law is a law or not?

It is debatable whether international law is a law or not. Law is defined as rules established by a governing authority to institute and maintain orderly coexistence. Sovereign states have three organs i.e. executive, legislature and judiciary in addition to other auxiliary bodies to enact, enforce/implement and interpret laws and are held up as the definitive model of what the law and legal system should be like. On the other hand, International law is said to lack all these three elements/organs and there is a pre- conceived notion that international law cannot be regarded as true law. There are two reasons for this misconception. Firstly, it is often believed by the people that states generally have little respect for international law because it does not have a world government, lacks an enforcement mechanism and no sanctions are imposed if it is not complied with or violated. Secondly, the political scientist views tend to challenge the very existence of international law. John Austin, a positivist, argued that international law is not really a law because it lacks sovereignty and defined laws as commands of a sovereign. Domestic law, however, consists of a legislature whose main aim is to enact laws, which later are enforced by the executive machinery and finally the enforcement is supervised and checked by the judiciary. For example, in Pakistan, there is an existing Pakistan Code which lists down all the various acts and then Civil Major Acts give the idea of the nature of laws.

It is therefore, a misconception as to whether international law is a law or not, the reason being that the afore mentioned functions which performed by the three organs of a state, the same functions are performed by various treaties and multilateral conventions, which show that even though there is no world Parliament, still the working is carried out properly. The procedure leading to the formulation/enactment of a treaty is the same as the establishment of a domestic law. Since international law consists of rules and principles which govern the relations and dealings of nations with each other, a treaty is formed by undergoing various negotiations between states. It is important to note that before a treaty is finally drafted, a series of readings takes place for scruitinization and finalization of a proposed draft. The first and second reading is the negotiation process, in which the states negotiate and come up with the conclusion of incorporating or deleting certain clauses. During this process, the opinion of experts and technocrats also plays a vital role in the making up of a treaty. A Standing Committee is also established which prepares the work of the Assembly (including various nations) between sessions, and ensures the efficient operation of the Assembly, along with the Adhoc Committees, which further address specific issues. Since international law, as it is today, comprises mostly of various international treaties and conventions, it is pertinent to note that all of these treaties and conventions are drafted after going through extensive negotiations and deliberations before they are finally opened up for accession or ratification. All these processes are undergone while drafting a domestic law as well, such as, the three readings of a bill which includes the committee stage as well, and its subsequent presentation for voting before the parliament, which if and when passed, is finally enacted and becomes a law/statute.

Posted Date: 5/30/2013 1:10:55 AM | Location : United States







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