1. Introduction
Law and state are inter-related with each other. Both law and state will not have any existence if and only if one of this two remain absent. In the primitive society, law and state do not have any existence. Labour differentiation and society segmentation creates this law and sates.[1] Law is a set of rules and regulations which control the behaviour of its member. The power to obey law is come from state. On the other hand, law control the existence of state. Law discuss about the relation between individuals with individuals, individuals with state, institute with institute or state. And the branch of law which discuss about the relations among states is known as International law. International law is very important and useful in the coeval world. Relations among the states of the world are determined by the international law. Sometimes some states unable to perform the international law. For this reason, we can not think that international law is weak and illegal. In the 19th century, even in 20th century international law was quite controversial for its lawfulness. But in 21st century international law becomes more faithful and it removes all its controversy.
2. International Law
International law is a body of legal rules, regulations and accepted practices by which countries, organizations and people throughout the world interact with each other and with citizens of different countries. There will be different type of definition about the international law given by the different jurists and lawyers. But most of them agree that international law is that set of rules and regulations which states are bound to obey.
L. Oppenheim defined International law in the following words, “Law of Nation or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their relation with each other.”[2]
John Bassett Moore was a well-known international law jurist and graduate from the University of Virginia law school in 1880, said that “A body of rules common to all civilized nations, equally binding upon all and impartially governing their mutual intercourses.”[3]
3. Attributes of International law
Law and its implement come from modern state law, for that reason there is so many controversy about the attributes of international law. But if we do a little discussion about it then the limitation of these controversies will solve out.
Firstly, International law is relations among nations and controls the relations between institute with institute or states.
Secondly, Although International organizations are subject of international law, but in international court these organization can not become any party like favourable party (1stparty) or unfavourable party (2nd Party).[4]Moreover, individuals and states have weak positions in international law.
Thirdly, there will be no such institutes or organizations which will make law for the international law. Basically international law is made by the states’ negotiations. These negotiations are the basic foundation of international law. Through these negotiations all the laws are take place among the states.
Lastly and most importantly, there’re no specific laws in international law. For that reasons states have the important responsibility to implement this law perfectly. There are some benefits too, if any one breaks the international law. These are like protections, joint protections, implementation of power of state. Basically in the coeval world, interdependence among the states is work as a tonic for obeying the international law. There will be so many political, economic, social, industrial steps to practice against the international law breaker.[5]
4. Relation between International Law and state law:
4.1. Object: The object of state law is natural individuals, lawful individuals and sometimes states itself, whereas, state is the only one object of international law.
4.2. Vision: State law is made to control and protect the rights of the citizen and try to keep peace among the citizen, whereas, International law is made to conform the international peace and international safety.
4.3. Institute of Law: There will be so many institutes who actually implement state law. But there will not be a single institution which will implement international laws. Basically, states sometimes attend in different conference and in that conference states make some deeds with each other country. These deeds are actually implemented as international law.
4.4. Limitations in implementing the law: States law are specific and bound to obey. If anyone is unable to perform the state law he or she will be punished for that. On the other hand, there will be no punishment for the state if any state does not obey the law. Although there is international court but this court always talks about the states favour.[6]
5. How international and domestic law does interacts
It is important to understand how international law principles become part of domestic law, and to explain what happens if the rules conflict. The theories of monism and dualism are the two main theories that explain the relationship between international and domestic law.[7]
5.1. Monism
In this theory, all law is part of a universal legal order and regulates the conduct of the individual State. The difference in the international field is that the consequences are generally recognized to the State. Since all law is part of the same legal order, international law is automatically integrated into the domestic legal order.[8] Some monist theorists consider that international law prevails over domestic law if they are in argument; others, that disagreeing domestic law have some operation within the domestic legal system.
5.2. Dualism
This theory stated that international law and domestic law are separate bodies of law, operating independently of each other. Under dualism, rules and principles of international law cannot operate directly in domestic law, and must be transformed or incorporated into domestic law before they can affect individual rights and obligations.[9] The main differences between international and domestic law are thought to be the sources of law, its subjects, and subject matter. International law derives from the group will of States, its subjects are the States themselves, and its subject matter is the relations between States. Domestic law derives from the will of the sovereign or the State, its subjects are the individuals within the State, and its subject matter is the relations of individuals with each other and with government.[10]
5.3. Harmonization
Neither monism nor dualism can satisfactorily explain the relationship between international and domestic law, and substitute theories have developed which regard international law as having a harmonization role. If there is argument, domestic law is applied within the domestic legal system, leaving the State responsible at the international level for any breach of its international law obligations.
6. Sources of International Law
6.1. Treaties: Treaties are the main foundations of international law. These are the contracts that the states engage into with each other, binding themselves to obey the conditions of it. Only law making treaties form a part of the International law, such as the treaties of Paris (1815), Versailles (1919) and creating constitutional charters such as Declaration of Paris (1856), Hague Conventions of 1899 and 1907, Suez Canal Convention or the Constantinople Convention of 1888.[11]
6.2. International Custom: international customs that are generally detected by the family of nations with their contract with each other are also a source of law. There is a difference between ‘custom’ and ‘usage’. Custom begins where usage ends. Usage generally has not received full legal substantiation whereas custom enjoys it. These are also an important source of law.[12]
6.3. General Principles of Law: the general principles of law are to be taken into account by the court where treaties and international customs are not evident as sources of proof.
7. Different Views about International Law
Austin, Hobbes and Pufendorf are gave their opinion that international law is a law of morality as it has no positive sanction to apply it. However, Hall and Lawrence maintain that international law is as much a law as any other, which is generally detected by the states, though, here and there, it may be overlooked by some just as any other ordinary law.
Holland said that ‘International Law is the vanishing point of jurisprudence’.[13] By using the words “vanishing point” in relation to international law and jurisprudence, he meant that international law and jurisprudence are parallel to each other, and they therefore are distinct and separate though it might be appearing that they are one and the same at vanishing point.
7. Where Form this theory comes?
Basically relation between international law and state law introduce this theory. The limitation of implementing the law is the main reason to produce this theory. Moreover, Monism and Dualism clearly state this theory. Monism accepts both the internal and international legal system in a unity. In a pure monist state, international law does not need to translate into state law.[14]But in dualist country state law are more strong and international is less important. Without this translation, international law does not exist as law. International law has to be national law otherwise it will consider as law.
8. Reasons that make international law as vanishing point of jurisprudence
8.1. International Law is not the command of a Determinate Human Superior to an Inferior:
Law is command of a superior to inferior. There is no such superior which will command to inferior in international law. Most of the time states are meet in conferences and in those states make some deeds with each other country. These deeds are the basic of international law, not the command. [15]
8.2. International Law does not enjoy the sanction of any coercive authority:
Law is obeyed because of fear of punishment. State law is backed by its sovereign authority. The international law on the other hand has no such sanctions. The states obey it at will and may break it at will. No physical punishment follows such breach. [16]
8.3. There are no competent courts to interpret International Law:
The state law is interpreted by courts and enforced accordingly. There are no such institutions for international law. There are numerous interpretations; it is supposed, of international law. There is no agreement as to what international law is on any specific point or issue.
8.4. International Law comes in conflict with the sovereignty of State:
International law is negation of the sovereignty of the State.[17] Every state is internally sovereign and its authority over its subjects is absolute and unlimited. A sovereign state does not recognize any superior in international relations.
9. Some other theories which support that international law is a vanishing point of jurisprudence
9.1. Is international law true law? – Austin
One theory which has enjoyed wide acceptance is that international law is not true law, but a code of rule of conduct of moral force only. The English writer on Jurisprudence, John Austin has been asked about the legal characteristics of International law. In his theory, Austin said that law strict to sense was the result of edicts issuing from a determinate sovereign legislative authority.[18]Logically, if the rules concerned did not in ultimate analysis issue from a sovereign authority, which is politically superior, or if there were no sovereign authority, then the rule could not be legal rules, rule of moral or ethical validity only.[19] There was no visible authority with legislative power or the power over the society of states. Moreover, during Austin’s time International law was exclusively customary. At the end of his theory he said that international law was not a true law but ‘positive international morality’ only.[20]
9.2. The triumph of politics: Morgenthau
Morgenthau talked about the realism. Neither he claimed that international law is not not true law, nor he claimed that international law had no effect om the action of states. Indeed, ‘to deny that international law exist at all as a system of binding legal rules files in the face of all the evidence’.[21]However, Morgenthau’s think that there is an ‘iron law of international politics, that legal obligation must yield to national interest’.[22] The rules of international law are seen as not as effective system as the national legal system is, and they are not effective in regulating and restraining the struggle for power on the international sconce.[23]
9.3. Sanctions of observance of international law
A controversial question is the extent to which sanctions, including sanctions by the way of external force, are available under international law, to secure observance of its rule.[24] At one extreme there is the view that international law is a system which is without sanctions. It is not quite true that there are no forcible means of compelling a state to comply with international law. The United Nations Security council may, pursuant of chapter 8 of the United Nations charter, in the event of threat to the peace, breach of the peace, or act of aggression institute enforcement actions against a particular state to maintain or restore international peace and security and to the extent that the state concerned is in breach of international law, this is in effect a form of collective sanction to enforce international law. Also under article 94, paragraph 2 of the charter, if any state, party to a case before the international court of justice, fails to perform the obligation incumbent upon it under a judgement rendered by the court, the security council may upon it under application by the other state, party to the same case, make recommendation or decide upon measure to be taken to give effect to the judgement. The United Nations Charter does not otherwise allow the use of force, collectively or individually, for the enforcement of international law in general.[25]
10. Two laws, same crimes
Why Bangladesh adopted two different sets of laws for the same sets of crimes committed in 1971 has since been an enigma.
The first legislation, proclaimed within weeks of liberation of Bangladesh on 24 January, 1972, the Presidential Order no 8, titled the Bangladesh Collaborators (Special Tribunals) Order, 1972, was designed to prosecute “certain persons, individuals or as members of organizations, directly or indirectly have been collaborators of the Pakistan armed forces, which has illegally occupied Bangladesh by brute force, and have aided and abetted the Pakistan armed forces in occupation, in committing genocide and crimes against humanity..” etc. In other words, the law was for prosecution of collaborators.[26]
The other one passed a year and half later on 20 July 1973, the International Crimes (Tribunals) Act, 1973, was to try and punish any member of “armed forces, defence or auxiliary forces” who committed seven major crimes, including Crimes against humanity, Genocide and War Crimes. It baffles many, why it took so long to enact this law, purportedly to judge main protagonists of these crimes, while within five weeks after victory from occupations; laws were ready to try locals![27]
The two laws dealt with collaborators and members of armed forces differently for committing very same crimes. In fact, no members of armed forces were ever brought under the International Crimes Act 1973, while several thousand collaborators were brought under the net.
This duality, apparently with no plausible justifications, essentially went against an important principle of law, equal treatment under law, and as a result, when final batch of 195 POWs were allowed to return to Pakistan, for whom the International Crimes Act 1973 was primarily meant for, then the Collaborators Order lost some of its edge. If there was one law, for the crimes committed in 1971 and given adequate constitutional protection, perhaps that law would have played more significant roles.[28]
11. Criticism:
First, states obey international law because they do not want to be isolated from mainstream community in an era of global or regional organizations. The new global age recognises that there are other factors on the world stage except states. It is complicated world in which states and international organizations play their part and all the organizations are depend on each other. International law guides their smooth operation for the advantage of ordinary people. For example WHO work with states for AIDS programme and both sides obey certain rules of operation among them.
Second, the notion of Legality of an action of a state is really very important. Legality emanates from the application of international law. For example the US-led invasion of Iraq in 2003 is declared illegal by the UN Secretary General because it contravened the Charter of the UN and the current Iraqi war is seen by all states except a few states as illegal military operation. This is why the US is bogged down in Iraq with an illegitimate war against the militants.[29]
Third, pressure from international community forces states to obey with international law. All states wish to have the image of being responsible, credible and trust worthy and this image can only be acquired with complying international law. If a state disobeys international law, it remains isolated from other states and as a result, other states do not interact with this state because they are aware that the recalcitrant state does not obey international law.
Fourth, maintenance of peace and security is of supreme importance to states and the orderly and peaceful conduct of relations with other states needs some kind of accepted norms of conduct from states. The accepted norms are the result of customs, practices, and patterns. With the passage of time, they attain transparency, precision, and the status of general application. States apply such accepted norms, known as international law.
Fifth, international cooperation among states makes agreement of international law a necessity. For example, it is possible to dial direct to almost every person in the world who has a telephone without going through a local operator. The telephone dial code for a country (880 for Bangladesh) is provided under the authority of International Telecommunication Union (ITU), based in Geneva. Both ITU and a state have to agree to comply with international law.[30]
12. Conclusion
To sum up, the sanction behind international law is conscience of the world. It is really very difficult to go against established norms and customs. Thus the weak state never goes against the strong state. Moreover, Compulsion is not the only basis of sanction for a law. Justice and force are all the important reasons for the execution of law. International law can be called a positive law as it is drive out of a sovereign of a generally held custom and its execution is necessary. Like other ordinary law, it is also sometimes avoided but does not mean that it doesn’t exist. For all of those reason Holland said that International law is a vanishing point of jurisprudence.
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