Is International Law a reality?

The International Law is considered as a collection of rules and orders which creates strong and regular relations between states. It has spent long time for the development of International Law which is divided as the Public International Law and the Private International Law.

The Public International Law is mainly focused on maintaining the relations between states and the Private International Law is used to rule the regular relations between two persons in two different states. There is an additional law which is called the Transnational International Law (Schachter O 1991, 01).

Presently, the Public International Law can be defined as the law which controls the links, between two states or between a state and an International Organization or between International Organizations themselves as well as the relations between a state and an individual. It is important to point out “Reparations Case” (Reparation for injuries suffered in the service of the United Nations Case) to explain how the Public International Law acts towards the International Organizations.

According to the history of International Law, it is important to highlight the establishments of the United Nations Organization, the League of Nations, the final act of Vienna Congress, and the creation of the Westphalia Organization. These are the milestones of the development of the International Law. The creation of The Westphalia Organization is an agreement made after the war in 1818. This organization gave its accordance to follow the agreement and to act according to the International Law. Further more, they decided to have conferences between states. After the Napoleon war in 1815, the final act of Vienna Congress was established to develop the Economic and Political Corporations in Europe. It stood against the Slavery and gave the freedom to travel through international water ways. It introduced a wide legal system regard to the Diplomatic Protocol. After the world war in 1920, all the friendly and rival countries got together and created the League of Nations. The main feature of this League was the International Permanent Court of Justice in which they established the arbitration, for the first time. Then the United Nations Organization was created and it introduced the International Court of Justice. The main objective of the International Court of Justice was to compose the International Law that has strength to provide a judicial body to solve problems. In consequence, if a problem arises one can easily make decisions to solve the problem, without a compulsory binding power. Presently, every state has the right to go to the Court of Justice (Brownlie I 2006, 02).

“Is International Law a reality?” This question is been discussed over and over again. This question occurs with the lack of a judicial body which could firmly enact the law and the order, or a police or a constitution which is highly acceptable. With all these reasons, some scholars state that the International law is considerably a virtuous law, even though it is not a real one. According to them, there is no firmness in the International Law and there is no mechanism to empower it properly (www.infoplease.com).

There are mainly two law schools which presented new theories on International Law. They are called the Positivism Law School and the Natural Law School. The Positivism Law School analyses the law as an order given by strong political powers, to the weak political characters. It is easy to identify these political characters. Disobeying their orders could result severe punishments. According to this Law School, the states can be taken separately and there is no other law against them. It reveals that the law is a collection of customs more than being a law. According to the Natural Law School, the law is not an enacted one; it is a law, trusted by people as it is fair and reasonable. It further says that the International Law of Human Rights is a powerful law to all the states in the world. Except these two Law Schools, the Social Scientific Law School is highly acceptable at the present time. It says that there is a law in every community. Such a community needs a law for its internal activities.

The customs were the main source of the Classical International Law. Now its scope has expanded into a wide area.It can be identified in two parts such as Traditional Sources and the Article 38 of the Statute of International Court of Justice (ICJ). In Article 38, the sources of the International Law are lined up as the International conventions, International customs, and the general principles of International Law, which are recognized by the civilized nations, judicial decisions and teachings of the most highly qualified writers. The Classical International Law was commenced to govern and strengthen the relations between states. But presently, it has been spread to the International Organizations and the individuals. Professor Strake also states “Indeed although traditionally it was the state which was the subject of the International Law, nowadays the International Organizations and, to a certain extent, the individuals can hardly be ignored.”(Schachter O 1991, 01)

The proliferation of the International Organizations dates back to the post-war period where there was the creation of the International Organizations dealing with various aspects of all the qualities and behavior of the people’s life. Once these organizations are given their personalities its common for them to enter into relations with states themselves. They became important that the International Law became concerned with their behavior and the Law of International Institutions became a specialized branch of law. In Reparations Case of 1949, placed in the International Court of Justice stated that the United Nations Organization has the right to make agreements with other states as it owes a legal individuality towards the International Law. It further mentioned that such agreements are linked with the International Law. In that case, Reparations case can be identified as an important judgment. In this judgment, it declares the power of International Law, which has the ability to make treaties with states and the other International Organizations and it is governed under the International Law. In the present international arena, the International Organizations play a major role in all the activities of a state. Lisbon Treaty was recently held and it presented one of its main impressions to consider the European Union as a legal individual. In such situation, it is easy to figure out how the wide scope of the International Law affects the International Organizations.

As regards the position of the individual in the International Law, one will note that in Classical International Law, the individual enjoyed no locus standi (no legal system). There is a contrast drawn between the state and the human beings who compose it. Such a state itself is highly concerned with regulating the individuality of the man and, before an individual could bring about a claim against a state, it is imperative that he or she convince his or her state to forward the case. This is no longer so today as the International Law is increasingly becoming concerned with the predicaments of the individual. A whole branch of Human Rights Law has developed and it gives the individual, a place within the international framework. Today, the jurists and the international bodies themselves cannot ignore this fact. It states that the International Law affects the individuals as well. According to the European Summit for Human Rights, an individual can go for the court when his or her human rights are violated. It is another limited opportunity given to an individual under the legal individuality which is written in the 28^th Constitution of the Optional Protocol of the United Nations Covenant on Civil and Political Rights. The individuals even gain the right to present a petition to the UNO’s Human Rights Commission, when their human rights are violated. In Sri Lanka, Dr. Jayalath Jayewardene and Mr. Victor Ivan have also written petitions, considering the violation of the human rights and the most sufficient evidence for such incidents is the “Singarasa Case”. Singarasa, being an L.T.T.E. terrorist, was given severe punishments by the High Court for his bad commitments. With the inutility of the appeals that he presented to the Court of Appeal and the Supreme Court, his final option was the International Court of Justice.

It is possible to take a legal action against an individual even in the International Criminal Court. In the judgment of Nuremburg, all the military soldiers are taken under the control of the Public International Law to avoid war criminals. The International Law is similarly concerned with the treatment of individuals within the state boundaries. There is thus a comprehensive regime dealing with the rights of refugees, international crimes, nationality problems and human rights generally. It has developed the principles even to govern the conduct of hostilities and the treatment of prisoners .As human beings, the people all over the world are given the freedom to live a peaceful life.

The Humanitarian Intervention is a great example to show how the International law deals with the rights of individuals. Every state has its sovereignty to which no other state or organization can mediate. A Humanitarian Intervention takes place if a state is to protect their citizens who have been ill-treated in another state. On the other hand, a state can mediate to save people of any nationality, for the sake of saving human beings.

In 1976, a great Humanitarian Intervention happened in Uganda. Palestinian revolts high jacked and landed a French air craft to the Entebbe air port in Uganda. It was planned to assassinate hundreds of Israel Jews. Then Israel sent their military troops to save their people. For another example, in the times of Idi Amin, genocide was to take place in Uganda. Even though it is an internal problem of Uganda, Tanzania acted against it to save the people. It is called Humanitarian intervention. Another Humanitarian Intervention was taken place during the war time in Sri Lanka. India put food parcels to the Northern territory as the people were suffering from a great starvation. When they were questioned for what they had done, they said that it was just to save human beings who were to die without food. In these incidents, we can see clearly how the International Law is mostly concerned about the individuals as well as the states. It treats the states and the individuals in the same manner. The International Law has been reasonable to use the humanitarian intervention for it is always thinking about every single person (en.wikipedia.org).

The greatest expansion of the International Law took place in the 19^th century due to the various courses such as the rise of powerful new states, the growth of European civilization overseas, the modernization of world’s transport and new inventions of civilians or military implementation. By the time, the International Law has been developed and it has changed with the accordance of the needs of the people. In consequence, the International Law has spread its scope into various fields such as Science and Technology, Telecommunication, Outer space, and all the other developments. Mainly the nuclear age and the space age have led to new developments of the International Law. The International Law is today called upon to find new policies in the field of energy resources and production, in general scientific researches in international trade. It is subject to protect the environment to control the Earth’s population, to observe the international protection of data and intellectual property. In last thirty years, there is an Industrial Technology, developing to an extent that the states relation has also been affected. In fact, the technological growth which is of an international character falls within the realm of the International Law. With the creation of the Multinational companies, operating in various states, there came into being a new source of revenue.

It appears therefore, that these multinational companies are themselves controlling the technology and it happens for these companies to be controlled by the International Law. The International Law develops to meet the new sophistication of human activities. The human activities in outer space increase and the technology develop along with the International Law to solve the problems which arise. The basis of the space law was developed in the 1960’s under the United National auspices. The treaties have been signed mandating the internationalization of the outer space and the other celestial bodies. The 1963 test treaty prohibited nuclear tests in the atmosphere, in the outer space and underwater. Another important fact in the development of the International law is telecommunications of a global nature. We can witness any of the events take place in anywhere with the technological developments of the field of satellite communication (www.juscogens.net).

These facts show us the way of the International law developed. It began its career to govern the states .It controlled the relations between states and correctly guided them to be firm and regular. With the time the people changed their life styles they created new technology. As the world changes the International law itself began to spread its scope to rule individuals and the International Organizations as well. Likewise, Modern International Law has extended its scope drastically and spread beyond state entities.

By M .H. K. S. De S. Jayasekara

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