RESPONSE PAPER

A RESPONSE TO DIXON AND HIGGINS

COURSE: INTERNATIONAL LAW

SUBMITTED TO:

PROF. VIVEK MUKHERJEE

SUBMITTED BY:

HARSHITA LILANI

2019-5LLB-74

YEAR III SEMESTER V

B.A. LLB. (Hons.)

NALSAR UNIVERSITY OF LAW, HYDERABAD

 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................2
ANALYSIS................................................................................................................................3
 Higgins on The Identity of International Law.................................................................3
 Dixon on The Nature of International Law and The International Systems...................4
CONCLUSION..........................................................................................................................6

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 INTRODUCTION

Higgins says that international law is a normative law and law in general is a normative
system. She means that it makes possible the degree of order which allows us to maximise
common good and avoid chaos. That is the ultimate end of any legal system. She says that
law isn’t merely about resolving disputes. The international legal system is much the same
and it is a continuous process. She shows us how the common idea of law is to create the
order. Anything which is a system or a process will involve making choices and this is where
the criticism for the positivist idea comes through. She places choices in the middle of
judicial making system. It is not merely rules which are applied by the judge.1

Dixon, on the other hand, delves with a lot of comparisons with the national legal systems of
states in order to justify the international legal system as ‘law’. He discusses a lot of aspects
regarding the role and existence of international law so as to maintain a world order and
universal peace. He goes to deliberate upon the enforcement agencies of international law in
order to justify its legal character.2

1
Rosalyn Higgins GBE QC, The Identity of International Law, Themes and Theories, OXFORD SCHOLARSHIP
ONLINE (2012).
2
Martin Dixon, The nature of international law and the international system (2013).

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 ANALYSIS

 Higgins on The Identity of International Law

If we were to summarise Higgins’ paper in a sentence, it would be, that she lays down a
systematic, historical dimension to the identity of international law. The strongest argument
of Higgins which I could identify has to be the breakdown of the international legal order
which gives us an authoritative exposure as to the practices of the states or their international
institutions in producing a legal meaning. This style of her work makes it possible to imagine
a dialogue exchange between the state and the individual and the international legal order in
order to raise their voices openly.

However, there were some loose ends in her article, which need to be reorganised and well-
thought about. In Higgins’ work, we come across a lot of references to MacDougal’s
approach which I find a bit technical instead of ideological. While though both of them
critique the rule-oriented approach to law with respect to international law, their opinions
differ on the note of authoritative decision-makers. Higgins does not really agree with the
policy prescriptions, rather she sympathises with the individual by putting a huge emphasis
on the importance of choice and will to promote the values one perceives. But there is one
thing that is deeply unsatisfying to Higgins and that is what the states do. They refuse to give
room to individuals to perpetuate in an international legal order. Instead, they keep on
controlling the situations where any interaction between an international body and an
individual is encountered. This seems to annoy Higgins a lot, as she keeps on stressing about
there being a need for direct contact between international law and its beneficiary.3

Higgins says that any legal system is about making choices. Choices and Context are an
integral part of any legal process, domestic and international. A refusal to accept political and
social factors cannot keep the law neutral. She states this to further critique the objective of
the judges, who according to her come from a positivist standpoint and cannot step outside
the legal arena as they seem to be mere appliers of rules and do not make any choices.
However, isn’t doing so still making a choice in itself. When they decide to not interfere with
the politics revolving around a case, they choose to let the biases of their legal and political
system creep in. thus, she concluded that there is an element of choice everywhere and even
3
Higgins. 'Integration of Authority and Control: Trends in the Literature of International Law and International
Relations', in W. Michael Reisman and Bums Western, TOWARD WORLD ORDER AND HUMAN DIGNITY, p. 80
(1976).

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in case it appears that there is the use of positivism, neutrality and the flag of being unbiased,
this is still a choice and choices are made at all points in time.

Another crucial point that remains untouched by Higgins is she does not argue that
international law in its very origin is legitimate, this is only one of her peripheral arguments.
She does not even try to derive the legitimacy of international law from the argument of
where it came from and its importance in maintaining world peace. The crux of her argument
remains the enforcement and the effectiveness of international law, and because it is out
there, therefore, international law is legitimate and should be followed. This style of
reasoning prompts us to be sceptical of the veracity of her argument itself.

 Dixon on The Nature of International Law and The International Systems

The argument that Dixon comes up with within his article is that since international law is
being enforced and followed by so many nations, who are the major takers of international
law, therefore it is a proper system of law.

It is often seen that proponents of international law argue that natural law is one of the
sources of international law. In Dixon’ paper too, though he points out the limitations of
natural law in addressing questions related to the binding nature of international law, he does
accept that natural law forms an integral part of the sources of international law as it accounts
for the concepts of equity, justice and reasonableness. But according to my understanding,
basing international law on natural law is accepting the dominance of western academic
concepts through a socially constructed belief. The basic problem with natural law is that it
has a very subjective interpretation which is more often than not based on self-interest. Due
to this element of self-interest which is a part of natural law and hence international law, we
will find that a majority of discussions in the international sphere are always inclined towards
a particular dominant group of states.

Dixon gives a lot of examples like Iraq in 1990-91, Indonesia over East Timor in 1999-2000,
South Africa in 1977 and many more, where failure to follow the international law was
treated with military or economic sanctions and therefore international law qualifies as a
‘law’. However, what Dixon fails to address is the number of instances where the USA has
invaded states and has disrupted their institutions and lives of the common people, justifying
their actions as maintaining world peace. Similar actions of the Big Five have often been
ignored, one recent example could be the deliberate attempt of China to spread Coronavirus

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as the reports suggest. The point here is that international organisations are often found to be
influenced by Western liberalism, individualism and dominance and therefore accepting their
norms as intrinsic to our legal systems is equal to risking our very existence. For many states
such as India, declaration of these westernised international treaties would mean scarifying
their unique and diverse cultures4 and committing to a westernised way of looking at the
world. It means a commitment to a law that “has supported imperialism, militarism, male
supremacy, racism, and other pathologies of human history”.5

Dixon further suggests that compliance with international law is based on a consent-based
theory. This also means that if national self-interest is at stake, it is permissible for states to
act contrary to international norms. This would further mean that powerful states have no
obligation to conform with internationally agreed norms as they can afford the costs of war
and the economic sanctions that might follow such a move of national self-interest. This is a
clear case of the perpetuation of power showing that the cost of breaking the law is too small
for the ones who created it in the first place. There are clear examples of such incidents in
today’s world, where countries small countries such as Iraq and Libya face sanctions for their
actions while countries such as China dare to spread viruses and violate human rights in
Tibet.

Finally, similar to Higgins, Dixon also commits the same mistake of delving into the
enforcement and the effectiveness of international law and not talking about its origins.

4
Stark, B. International Human Rights, Feminist Jurisprudence, and Nietzsche’s “Eternal Return”: Turning the
Wheel, HARVARD WOMEN’S LAW JOURNAL, 19., p. 169 (1996).
5
O’Connell, M. E. The Power and Purpose of International Law: Insights from the Theory and Practice of
Enforcement, OXFORD: OXFORD UNIVERSITY PRESS, p. 94 (2008).

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 CONCLUSION

There is not denial or doubt on the legality of international law as a discipline of law. But
what needs to be done is to come up with a more equitable system of international law
wherein importance is given to all the states on the same level. Similarly, if a state violates
any international norms and standards, be it USA or Iran, both should face sanctions,
disregarding the existing power dynamics. Further, the international law should move away
from a westernized academic concept and should consider recognizing the unique and diverse
cultures of the various participant states.