International Law – The Law Blog

This article has been written by Ishaan Garg. Ishaan is a first-year law student at Vivekananda Institute of Professional Studies, GGSIP University, Delhi.

The International law as we know of it is a soft law. The binding force behind all treaties, pacts and conventions adopted is ‘common consensus’. It is the consent of the member states that provide a backbone to principles of International Law. However, being a weak and a soft branch of law, international law is non-coercive in nature. Hence, it is up to the member states to decide whether or not to abide by such principles on the cost of their Sovereignty and National Security. This is what has exactly happened in Europe. The ongoing crisis has led to migrations on an extremely high level that it is becoming difficult for Europe to bear such a burden. Hence, the European Union has been unsuccessful in maintaining a balance between obeying to the principle of non-refoulement and protecting their National security.

Hence, they have adopted non-entree measures so as to put a hold on the inflow of refugees and asylum seekers. However, the substantial question at this very stage is whether they can be justified in doing so. In such a situation where the people of the world who have been victims, be it of terrorism spread by ISIS or the Syrian civil war, they need a helping hand from Europe which now seems to have withdrawn itself. The two major policy changes that Europe has adopted is the suspension of Schengen Agreement and the amendment to Dublin Regulation as discussed earlier. Europe has declared this to the world that it shall not provide refuge to the immigrants by compromising with the Security of the State. Can Europe be blamed for putting their State Security at a higher level than obeying the principle of nonrefoulement? The mass displacement of people and large scale immigrations have disclosed the loopholes and revealed the flaws of the principle of nonrefoulement. The outcome which was expected by establishing this principle could not be achieved as it was intended.

The principle of nonrefoulement is one of the most fundamental right of the international refugee law. Still, after expressly recognising the principle in various international instruments and discussing its necessity at global platform, complete adherence to non- refoulement seems nothing more than a dream. The ground reality is that non-refoulement is just a principle good for books. It has failed the test of time so much so that the intention with which it was established could not be fulfilled. Displacement of people has taken place at such a high level that it has become difficult for the nations to bear such a burden. It is agreed that nations have violated the principle of non-refoulement, but, there is still a reasonable explanation to that. By saying this, it does not mean that every nation has fulfilled its role and obliged to the principle of non-refoulement. There have been occurrences when the refugees were subjected to brutality and insensitivity. Nations like Sudan and Sweden have expelled the asylum seekers back to the places where they came from. This was absolutely illegal. But, there is a difference between the act of subjecting refugees to brutality and the omission to provide asylum to the people. Many nations like France, Austria, Germany etc., have started closing doors for asylum seekers. There is a reason behind such a move. It has been claimed by Europe that most of the Asylum seekers are economic migrants and not the ones who have been forced to flee because of the horrors of the war. They are persons mostly from North Africa and of Moroccan or Tunisian origin who have travelled to Europe only due to economic reasons. The high level of immigrations also holds a potential threat to the security of the entire European Union. Before providing shelter and asylums to the refugees it should also be ensured that the people who need it are genuine and pose no threat to the security of the state. The European Union had to confront all the allegations and criticisms that were made as soon as it started showing a cold response to the claims of asylum seekers. However, the continuous immigrations pushed the nations to prioritise their National Security over the obligation of International Law. If this is the situation, then it can be suggested that Europe may have an understandable reason of not fulfilling the claims of asylum seekers. Thus, approaches of non-entree were adopted to keep the refugees well of their boundaries without formally disobeying treaty obligations. The irregular migrations have exposed the faults in the International principle of Non-Refoulement as well. The drafters of this principle could not anticipate that it might suffer from any flaws in the long run as no limit was prescribed with regard to its applicability.

This article has been written by Ritika Bhasin. Ritika is currently a fourth-year student in National Law University, Delhi.

The Positivist theory holds that the power to lay down the law vested only with the state or the political superior. In the absence of any political superior or sovereign above the states, it became difficult for them to accept ‘international law’ as ‘law’.[1] According to them, “international law flows from the express or the tacit consent of states”.[2]

John Austin defined law as “the command of a sovereign over his subjects which creates an obligation on their part to obey the command”.[3] Applying the command theory, he concluded that both constitutional law and international law did not constitute ‘law’ in the strict sense of the term, but were merely ‘positive morality’.[4] In the absence of sovereign coercion, the duties imposed by international law could be enforced only by moral sanctions like the fear of invoking general hostility, public opinion of other nations and societal conventions.[5]

Austin focussed on only one element of law and failed to look beyond its ‘author’ and ‘form’.[6] He excluded all other elements of law which are equally important to be included within the definition of law[7]. Law needs to be understood as a system of both rights and duties that regulates the behaviour of not just the subjects but also the one formulating them.[8] His theory on law comes out to be narrow and arbitrary as he neglected the significance of ethical sanctions (customs) in the enforcement of law.[9] In order to be effective, sanctions need to be certain and serious irrespective of whether they form part of a top-down model or not.[10]

Jeremy Bentham believed that moral sanctions might be sufficient to ensure obedience to a law, although they did not possess similar efficacy as political sanctions.[11] He recognised it as a “primitive system of law”.[12] He defined international law as the law which related to “the mutual transactions between sovereigns as such“.[13]

Like Austin, Bentham too did not look beyond the elements of ‘command’ and ‘sanctions’ in law. It was only when he moulded his command theory to suit the international conditions that he was able to see international law as more than mere morality. However, the deficiency of his theory is brought about by the fact that he perceived international law as only a collection of rules that govern states and their correspondence. He left other elements like the processes and structures for the enforcement of such rules out of the ambit of law.

H.L.A. Hart too recognised international law as “a primitive form of law”.[14] He had a much broader understanding of law, which consisted of ‘primary rules’ that impose duties and ‘secondary rules’ that allocate power.[15] According to him, international law was a union of only primary rules.[16] It lacked all the three secondary rules.[17]

There have been some major changes in the international sphere since the time Hart propounded his theory. The United Nations was established in 1945 with the objective of maintaining international peace and security[18] and sought to initiate the process of codification of international law.[19] An adjudicatory authority in the form of the International Court of Justice has been established.[20] The sources of international law have been listed under Article 38.1 of the Statute of the International Court of Justice as “treaties, international customs and general principles, giving globally accepted standards of behaviour, judicial decisions and scholarly writings”[21]. This would very well constitute the rule of recognition as required by Hart. A couple of other adjudicatory bodies (tribunals) like the European Court of Justice and the European Court of Human Rights have also been established.[22] Hart’s understanding of international law in the present times might have been quite different. He might have given international law the status of law in the presence of a potential rule of recognition and rules of adjudication.

The top-down approach as adopted by the Positivists ensues to be a major hindrance in recognising international law as law. There need not necessarily be a vertical relationship between the author of rules and those governed by them. The merit of laws has to be judged in terms of their characteristics and the effect that they have on governing the behaviour of individuals in society.[23]

Another factor that prevents them from seeing international law as law is their belief that morality does not form part of law. The significance of normative values in ensuring conformity to international norms cannot be undermined.[24] They failed to see value judgments as part of law irrespective of the fact that even judges engaged in law-making while dealing with the ideological and ethical content of the disputes that they sought to resolve.[25]

Also, customs were not a source of law according to Positivists.[26] In the international sphere, customs form a major source of law. Rules and norms are an outcome of long usage and thus, states are forced to abide by them out of necessity in their own interests.[27]

Another deficiency in the Positivist theory on international law is that they consider only states as subjects of international law and not individuals. They neglected that international law also includes individual rights and obligations.[28]

There have been numerous developments after the Positivist theories on international law were advocated.[29] It is possible that Positivists would have had quite a different understanding of international law in the present day and age.

[1] John H. Crabb, ‘An Introduction to some International Law Concepts’ (1961) 37 N.D. L. Rev.

[2] P.E. Corbett, ‘The Consent of States and the Sources of the Law of Nations’ (1925) 6 Brit. Y.B. Int’l L.

[3] J Austin, The Province of Jurisprudence Determined (John Murray 1861).

[4] L. OPPENHEIM, ‘The Future Of International Law’ (1918) 6 Cal. L. Rev.

[5] Harold Hongju Koh and others, ‘Why Do Nations Obey International Law?’ (1997) 106 The Yale Law Journal.

[6] John Murray, ‘Austin on Jurisprudence’ (1861) 8 The Crayon.

[7] T. J. Lawrence, ‘The Nature of International Law’ (1895) 10 The Principles of International Law.

[8] E. C. Clark, ‘Practical Jurisprudence, A Comment On Austin’ (1883) 1 Cambridge University Press.

[9] Ibid.

[10] Ibid.

[11] Cheryl Toner, ‘Bentham’s Completion of International Law’ [1994] UCL Jurisprudence Rev.

[12] Jeremy Bentham ‘A General View Of A Complete Code Of Laws’in ‘The Works Of Jeremy Bentham’, ed. John Bowring, (1843) vol. iii, p 187

[13] Richard Ashcraft and Jeremy Bentham, ‘An Introduction to the Principles of Morals and Legislation’ (1971) 65 The American Political Science Review.

[14] H. L. A Hart, The Concept Of Law (Clarendon Press 1961).

[15] Ibid.

[16] Ibid.

[17] Emily Kadens and Ernest A. Young, ‘How Customary is Customary International Law?’ (2012) 54 Wm. & Mary L. Rev.

[18] Charter of the United Nations 1945, Chapter I, Article 1

[19]Charter of the United Nations 1945, Chapter IV, Article 13

[20] Charter of the United Nations 1945, Chapter XIV

[21]The Statue of the International Court of Justice, Article 38.1

[22] Gary Born, ‘A New Generation of International Adjudication’ (2012) 61 Duke Law Journal.

[23]Dennis Lloyd Lloyd of Hampstead, The Idea of Law (Penguin Books 1976).

[24] Supra note 5

[25] F. S. C. Northrop, ‘Contemporary Jurisprudence and International Law’ (1952) 61 The Yale Law Journal.

[26] Anthony D Amato, ‘Is International Law Really “Law”?’ [1985] Nw. U. L. Rev.

[27] W. R. Bisschop, ‘Sources of International Law’ (1940) 26 Transactions Grotius Soc’y.

[28] Mark Weston Janis, ‘Individuals as Subjects of International Law’ SSRN Electronic Journal.

[29] H. Lauterpacht, ‘Codification and Development of International Law’ (1955) 49 The American Journal of International Law.

Category: International Law

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