LAW 510

PUBLIC INTERNATIONAL LAW

TUTORIAL WEEK 1: OVERVIEW OF INTERNATIONAL LAW

PREPARED BY : NUR SYAZWINA BT MD AZAHAM

MATRIC NO. : 2017892396
GROUP :A
PREPARED FOR : PROF. MADYA ROHANI MOHD SHAH
DATE OF SUBMISSION : 18th JULY 2019
TUTORIAL WEEK 1: OVERVIEW OF INTERNATIONAL LAW

Discuss how theories of law by Bentham (Concept of natural law), Austin and Kelsen
(Concept of positive law) builds the definition of law in International Law Concept. In
application of these concept, do you think International law is carrying out the characteristic
of “law”. Discuss why new States, developed after UN Organization (1945) accepts
international law. Is there weakness of international law and how the weakness is overcome
in today’s understanding of international law. (10 marks)

ANSWER:

Generally, law could be defined as a set of rules enforceable by state which the
legislators had made which everyone has to follow or otherwise they have to face sanctions
as consequences. It is highly debated as to whether international law is actually law or not
despite the fact that states have accepted it as such and refer to it in their constitutions.
However, another way to understand law is by looking at various propositions and
approaches pertaining to law represented through the theories of the naturalists and the
positivists.

Under the theory of natural law, the moral standards that govern human behaviour are
objectively derived from the nature of human beings and the nature of the world. As such, it
is deemed that rules of law are derived from the application of the law of nature as matter of
human reasoning where humans are morally obliged to use their reasoning to discern what
the laws are and then to act in conformity with them.

a) “any person or
assemblage of persons
to whose will a whole
b) political community
are... supposed to be in
 a disposition to pay
obedience” is the
sovereign.
c) “any person or
assemblage of persons
to whose will a whole
d) political community
are... supposed to be in
a disposition to pay
obedience” is the
sovereign.
e) “any person or
assemblage of persons
to whose will a whole
f) political community
are... supposed to be in
a disposition to pay
 obedience” is the
sovereign.
According to Jeremy Bentham (1746-1832), any person or assemblage of persons to
whose will a whole political community are... supposed to be in a disposition to pay
obedience is the sovereign. The basis for such an obedience is factual or a supposed habit of
obedience. However, Bentham does not say anything about the cause of this obedience; nor
the quality of sovereignty.

In contrast, for positivists theories of law, it concentrates upon a description of law as

it is in a given time and place (“posited” into that particular time/place) by reference to
formal or structural criteria of identification (rather than moral or ethical criteria of
identification).

Quoting John Austin (1790-1895), “Law is a command set by the sovereign or

superior being to an inferior being, enforced by sanctions”. Such a command in his view is
backed by coercion so that any person who violates the law would suffer the pain provided by
the law. According to him, law without sanction is not law. By virtue of the fact of coercive
power, the sovereign has the power to make binding law. Kelsen agreed with Austin on
many counts but went even further than Austin did by excluding morality, ethics, psychology,
politics, religion and sociology from the proper study of law. For Kelsen, law is made up of a
series of norms.

With regards to international law, Bentham defined public international law or law of
nations is the body of legal rules, norms, and standards that apply between sovereign states
and other entities that are legally recognized as international actors. In plain words,
international law is a set of rules created by selected people supported by sanctions. As such,
by referring to these differing theories, I believe that international law can be regarded as law
because it does meet all characteristics of law. Despite having no sovereign political authority
that can dictate states, contrary to the requirement of a sovereign under the positivist theory,
international law can carry the definition of ‘law’ as there is the establishment of United
Nations and under such an organisation, there is an International Court of Justice which can
decide on punishments.
 Additionally, going back to the 18th century, the word “nation” is changed to a “state”
because a nation would always reflect that the leader is only one person (the monarchy) but
when it is a state, the leader is actually a group of people selected by citizens. The state
themselves will have power given to them by the legislation or by the courts. Such a concept
is synonymous with democracy. Hence, the new States which had developed after United
Nations accepts international law as they followed the changes that happened in the Europe.

Moving on, international law is perceived to have certain weaknesses. Firstly, it lacks
effective machinery or authority to enforce its rule. This is because enforcement does not
come from the international law or United Nation itself. Jurists consider enforceability to a
necessary characteristic of any system of law. Nevertheless, scholars of public international
law would argue that international law does possesses this characteristic and it is actually
much stronger as enforcement can come from coalitions of state members. For instance, to
supress the situations of Israel, Somalia and Syria, the state members would send their armies
on a voluntary basis.

Secondly, the sanctions behind the international law are deemed to be weak because
the International Court of Justice has no comprehensive jurisdiction. However, the
international criminals would be prosecuted in the International Court of Justice. After the
occurrence of World War I and World War II, it is safe to say that only International Court of
Justice has the experience of handling such cases (prosecution of the international criminals).
Enforcement may be slightly slow but it is still arguably quite effective. When the actual
arrest of the culprits or wrongdoers during a dispute, it is usually done by the Interpol
(international police) despite them not being the enforcement of United Nation. An arrest
would come with them but the actual effect of the arrest is done by the state of which the
culprit originates from. To illustrate, if the criminal is an American but he could be found in
Malaysia, it will be informed to the Interpol and they will then send the warrant to Malaysia,
leading to the government of Malaysia to act accordingly. From here, it can also lead to the
enhancement of relationship between states through the principle of bona fide. Every state
has a duty to act bona fide to their neighbour. For example, when United Nations asks the
criminal to be surrendered, the state involved should do upon sufficient evidence to prove
that they were involved in the criminal act. This can be seen when Hong Kong surrendered
Lorrain Osman who was involved in fraud. Another example of such bona fide act is when
Malaysia surrendered two foreign IIUM students who were involved in the tragedy of 11 th
September 2001 tragedy. In such circumstances, there is no need for extradition treaty.
 Thirdly, it lacks political will on the part of the States. Some states are reluctant to
comply with the international law when their vital states are at stake. This could be linked
with the violations of the rule prohibited the use of force by powerful States. International
law seems powerless to prevent major incidents involving these states especially in
circumstances where the veto power given to the Big Five (China, France, Russia, United
Kingdom, and United States) come to play. By virtue of this veto power, enforcement action
can hardly be taken against any of the Big Five or any state which is a close ally to them.

In conclusion, international law can be regarded as law as it meets the characteristics

of law and not to mention that states do accept international law after the establishment of the
United Nations due to them following the development of law. Undeniably, there are certain
weaknesses of international law but such weaknesses could be overcome by today’s
understanding of international law.