Solomon Oho

Name: Oho O Solomon

ID: BU/14A/LAW/1108

Subject: Public International Law

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Solomon Oho

Law is an embodiment of rules which is made by some superior

body and imposed on the inferior with the aim of keeping peace and
order in the society and can be achieved through various enforcement
mechanisms. The legal system of a nation helps provide a structure in
which these laws can operate properly through the Legislative who make
laws for the country, the Judiciary who interpret these laws and the
executive who enforce these laws through the police or ad hoc
committee.1

Max weber stated that "Law exists if it is externally guaranteed by

the probability of coercion (physical or psychological) to bring about
conformity or avenge violation, and is applied by a staff of people
holding themselves especially ready for that purpose." This definition
by weber, throws more light to nature of laws which requires
enforcement for it to be considered law. 2

Law is a set of Rules of conduct approved and enforced by the

government of and over a certain territory.

The question of international law being real law is that international

law to an extent lacks the essential requirement of what a law is or
should be, and the major element of law is its enforcement as if there are
no mechanisms for enforcing the laws, it is as good as just making laws
with the hope that people would obey. International law, there is no
1
What is Law?, Sixth Form Law (ND), http://sixthformlaw.info/01_modules/other_material/law_and_morality/
0_what_is_law.htm [accessed 05/10/16]
2
Ibid’

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government or body to enforce the laws unlike that of domestic laws

where there is a system in place or the government to make and enforce
laws. As for international law, its laws are not enforceable unless
powerful nations see it in their interests to do so.

International law is the body of laws and rules which governs state
actions with one another and it would be important to mention that these
states are sovereign independent states and have their own foreign policy
on how they want to act in the international arena and are only bound by
the international law by their own consent to such treaty or convention.

Austin views law as a “system of command orders issued by

sovereign authority and supported by threat of sanctions and other
punishments if the commands are ignored.”3

Vaughan Lowe defined international law as a body of rules and

principles that determine the rights and duties of states primarily in
respect of their dealing with other states and the citizens of other states.4

International law mainly serves as a stabilizing factor in the

international system or arena which tries to maintain the peace among
nations during mutual relations.5 However, there is little or no means of

3
Easy On is international law really law?, William Breghton 2009, http://essaysreasy.org/content/essay-on-is-
international-law-really-law.html [accessed 05/10/16]
4
International Law Reconsidered: Is International Law Actually Law? C.J.Petallides, 2012
http://www.inquiriesjournal.com/articles/715/international-law-reconsidered-is-international-law-actually-law
[accessed 07/10/16]

5
Ibid'

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enforcing these laws which would go beyond state consent and it is on

this basis that some scholars hold the opinion that international law is
not law.

The domestic law of a nation has a legislature to make laws for her,
the judiciary to interpret those laws, and the executive to enforce them
through the police or using some slight force to compel disobedient
citizens.

However, this is not the same for the international system and law.
There is no legislature, judiciary, nor executive. The international
system is made up of independent nation states that have no higher
powers governing their actions. 6

International law is primitive when compared to national legal

systems, in the sense that it is not as developed or advanced as domestic
laws. It lacks the same legislative, executive, and judicial enforcement
mechanisms. In international law, the general assembly of the UN
Charter makes recommendations and not laws. This means that states
are bound by customary state practices and treaties which make up the
legal system for international law. 7

Slomanson is of the view that international law is not really law,

that those who purport it to be law only do so to convince their clients

6
Is international law really law?, Globalization101,2016, http://www.globalization101.org/is-international-law-
really-law/ [accessed 08/10/2016]
7
Fundamental perspectives on international law by William R. Slomanson/3rd edition: is international law really
law? See at p46, Note 1.8

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and students that it is something more than a myopic fantasy. This view
is based on the fact that international law unlike domestic laws, lack an
enforcement mechanism and states can act as they wish so long it
benefits their interests. For example, the United States of America can
boycott the United Nations to go into another country’s affairs simply
because they are the world power and stand to gain certain benefits.8

Slomanson is also of the view that international law is practically an

oxymoron. That is, contradictory in its terms and objectives. “Law
without a sword is mere words” hence the symbol of law and justice is
depicted with a blindfolded lady with a scale for fair distribution, and the
sword for justice, and enforcement.9

There is clear need for one to distinguish between the enforcement

mechanisms of laws in the international system and that of the domestic
legal system. In the international scene, a nation can breach or violate
an international treaty and get away with it because such state knows
that dispute resolution mechanisms cannot be enforced on her without its
consent.

The UN secretary general does not have the power to intervene in

any conflict that is not expressly agreed to by the nations which means
that the UN secretary general cannot enforce a peace keeping mission
without the consent of the nations. However, he can refer the nations to

8
Ibid
9
Ibid

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Solomon Oho

the UN Security Council on the grounds that they are affecting the
international peace of the world. This is also the case with the
international court of justice which only entertains or settles disputes
between states and cannot carry out its function without the states
consenting to it. International law is based mostly on self-interests and
necessity, which means that states only enter into treaties when it best
serves their interests.

However, there are certain instances that one can consider

international law to be real law. In some instances states do observe
international law due to the fear that breach of the laws may lead to
sanctions being placed on such nation, embargoes, and violations are
usually well publicized and hit the heart of the system which would
affect the international peace and justice causing other nations to rise up
against the nation violating the international law.

In recent years, the United Nations Security Council acting under

the UN Charter, chapter VII may define the existence of any threat to the
peace, breach of the peace or any act of aggression, and may impose
mandatory sanctions to try to rectify the situation. The sanctions of
which may be economic, diplomatic, and military to compel those
violating states to obey. This chapter of the UN Charter has clearly given
the UN Security Council some sort of control or power over violations

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that ought to be out of hand or threaten to be out of hand by states in

order to maintain peace and order in the international society.10

International law can be enforced by the principle of reciprocity

which is a type of enforcement where states are assured that if they
offend another state, which the state would respond by returning the
favor.11 This encourages or forces states to observe and follow the law
set down in various treaties and makes the states think twice before
carrying out an action or violating the law so that their same actions are
not applied to them by the other states. For example, during war, a state
may refrain from killing the first aid soldiers on war ground simply
because they do not want the other country to kill their own first aid
soldiers in return, as well as imposing high tariffs on trade relations.
This principle can also be seen in diplomatic agents between nations. 12

Furthermore, the law-habit plays a major role in the enforcement of

international law and flows from the binding nature of international law
that nations recognize them and the binding nature of the laws. States
follow international law out of respect of the law since this is the norm
in domestic laws13

10
See Chapter VII of the Charter of The United Nations, 1945 Articles 39-40, p9
11
How is International Law Enforced? Globalization 101 (N.D), http://www.globalization101.org/how-is-
international-law-enforced/ [accessed 09/10/16]
12
Enforcing International Law by F.L. Kirgis, (1996), https://www.asil.org/insights/volume/1/issue/1/enforcing-
international-law [accessed 09/10/16]
13
Mechanisms to create and support conventions, treaties, and, other responses by J.C. Barker (N.D),
http://www.eolss.net/eolsssamplechapters/c14/e1-44-01/e1-44-01-txt-02.aspx [accessed 09/10/16]

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Solomon Oho

International law can also be enforced through collective actions of

nation states who act together against another state to achieve a
disciplinary result with the aim of keeping the international peace and
preventing other states from carrying out the same violating actions. For
example, when Saddame Hussein’s Iraq invaded Kuwait in 1990 and the
United States and other nation states were forced to carry out a military
retaliation under the auspices of the United Nations to punish Iraq for
going against an international law. This was also used against South
Africa during the apartheid period which compelled them to stop racial
segregation and oppression.14

Nation states are also compelled to obey international laws by the

use of shaming. This is simply publicizing the act or violation which the
state has carried out and this would be considered bad media or name for
the country which most of them try their possible best to avoid. This
would force the state to avoid anything that would bring them a bad
name in the public eye for something that most states see as wrong and
the issue may then be addressed by an international organization. For
example, the UN in 2010 threatened states like Africa, Asia, and Latin
America for using child soldiers to fight their wars.

Sanctions can also be imposed on nations who violate these

international laws as a form of punishment and deterrence to other
nations who aim to violate the laws for their personal interests which
14
Ibid’ 11

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isolates them from trading and having relations with other nations. The
UN Security Council has successfully imposed sanctions on certain
countries such as Libya for their proliferation of weapons of mass
destruction in 1988, and North Korea in 2006 which they prohibited the
entry of nuclear technology and heavy arms from going into the
country.15

In conclusion, international law unlike the domestic law has no

central governing body which is responsible for making, interpreting and
enforcing its laws. International law is based on state consent to treaties,
conventions, and customs (state practices) which become binding on
states when they become signatories to a treaty or have been practicing
that custom for over a long period of time. International law has been
heavily criticized for its lack of enforcements of its laws and of which an
essential element of law is its enforcement policies.

However, international law would be considered true or real law

when one looks at the principles and provisions made by the
international system to enforce the international laws and treaties such as
sanctions, embargoes, reciprocity, law-habit, collective actions, rules of
recognition and shaming.

15
UN Sanctions: A mixed Record by R. Mcmahon (2006), http://www.cfr.org/international-organizations-and-
alliances/un-sanctions-mixed-record/p12045 [accessed 11/10/16]