The Social Darwinism of International Law
Social Darwinists held that the life of humans in society was a struggle for existence ruled by “survival of the fittest,” a phrase proposed by the British philosopher and scientist Herbert Spencer. This note shall observe the scope of international law by studying its acceptance and application. In an era, which has been marred by populist regimes and backlashes on democratic values, has international law been able to survive the test of time and be socially acceptable?
Before discussing the scope, one must appreciate the characteristics of international law which is largely considered as an offspring of imperialism. The modern state which emerged in Europe after the fourteenth century centralized the use of force by making it a state monopoly. As time passed, international law found itself in the clutches of economic and social regulation. In intercourse with regulation, it gave birth to a sophisticated system of legal institutions, principles and regulatory framework society. In unison this can be referred to as the Western concept of law, however, with its national and philosophical variations, it became a central instrument for the organization and development of both state and civics.
Scope of International Law
The scope of international law is concerned with the regulation of states, organisations and the many non-state actors in the terrains of international relations. Thus, one could summarise international law as a horizontal legal system that is toothless as it lacks a supreme authority and a centralized executive enabling the use of force. Contrary to popular belief, the United Nations General Assembly is not a world legislature and the International Court of Justice can operate only based on the consent of states to its jurisdiction, and the law-enforcement capacity of the United Nations Security Council is both legally and politically limited.
Nevertheless, a state guilty of violating an international obligation is responsible for the wrongful act towards the injured state, or, under certain circumstances, to the international community as a whole. The injured state can raise an international claim. For example, if one state commits an illegal act against another state, and refuses to make reparation or to appear before an international tribunal, there is (or was until recently) only one sanction available to the injured state: self-help. Other forms of self-help are countermeasures, such as reprisals.
Means of Sustainability of International Law
Retorsion is a lawful act that is designed to injure the wrongdoing state —for example, cutting off economic aid (this is lawful because there is no legal obligation to provide economic aid, apart from under special treaty provisions). Reprisals can be best understood with the following example- if state A expropriates property belonging to state B’s citizens without compensation, state B can retaliate by doing the same to the property of state A’s citizens. The underlying caveat here remains that reprisals must be proportionate to the original wrong.
There has been a recent tendency for sanctions to be imposed by large groups of states, working through the United Nations. The United Nations General Assembly is not subject to the veto, but its resolutions are usually not legally binding (although they are an institutionalized form of public opinion and can be instruments of political pressure).
International organizations with more specialized functions may exercise more effective control over their members, especially if, International organizations with more specialized functions, like the International Monetary Fund or the World Bank, may exercise more effective control over their members if they provide essential services. Furthermore, regional organizations may exercise an even stricter discipline over their members; for instance, the Court of Justice of the European Union has compulsory jurisdiction over member states which are accused of breaking the rules of Community law.
However (and unfortunately), sanctions work less effectively in international law than in national law. The equilibrium is imbalanced since States are few in number and unequal in strength. Nonetheless, the scope of international law is considered to be the collective responsibility of the whole community of a state which has committed an internationally wrongful act. The impact of power and politics is much more immediately recognizable and directly relevant in international law than in national law. It is also true that international law, due to the lack of central institutions, is heavily dependent on national legal systems for enforcement and implementation.
International law- The Perception and Subsequent Engagement
There is an old dispute going back to the early writings of Hobbes reinforced in the nineteenth century by Austin’s influential legal theory, on the issue of whether international law may be properly called ‘law’. The controversy has focused on the relevance of the lack of sanctions in cases of violation of international norms as compared to municipal law and it has often confused the question of whether international law is ‘law’ with the problem of the effectiveness and enforcement of international law. For Foreign policy experts perception of international law, in the ‘realist’ sense focuses on the role of power and of national interest in international relations and is connected with names such as Morgenthau and is also reflected in the writings of Henry Kissinger.
Thus, the capability of international law in governing the relations between states must not be exaggerated. The role of international law in international relations is intrinsic and inseparable. The latter has been responsible for enhancing and acting as a vehicle for the increasing global interdependence of the latter.
The self-interest of states in regulating their intercourse rationally on the basis of reciprocity remains key. Therefore, disputes between states are usually accompanied by—in a given case naturally often conflicting— references to international law.
States continuously conclude and implement bilateral and international treaties and establish and operate international organizations. Efforts are being made to codify international law. Spectacular cases of violation of international law, which attract the attention of the media more than regular conduct, are exceptional and should not be confused with the ordinary course of business between states.
The old discussion on whether international law is true ‘law’ is the central theme of this note. On pointers discussing international law as ‘law’, the arguments of the critics centred upon the absence of a legislature, sanctions and compliance without recognizing the historical, structural and functional differences between legal systems within states and the international legal system as the necessary starting point of analysis.
Here, I must repeat that a horizontal system of law operates in a different manner from a centralized one and is based on principles of reciprocity and consensus rather than on command, obedience and enforcement. A system of law designed primarily for the external relations of states does not work like any internal legal system of a state. After all, there is no reason to assume that the international legal system must, or should, follow the historical models of centralized systems of national law.
In effect, what distinguishes the rules and principles of international law from ‘mere morality’ is that they are accepted in practice as legally binding by states in their intercourse because they are useful to reduce complexity and uncertainty in international relations. While international law is clearly weaker than municipal law from the viewpoint of independent enforcement, it still provides the external relevant terms of legal reference for the conduct of states in their international relations, based on the fact that, despite all differences, they are members of an existing international community.
Ankit Malhotra is reading Law at Jindal Global University and has a Bachelor of Arts Degree in International Affairs. He is also the President and co-founder of the Jindal Society of International Law.
Image Source: Credits to J. Keppler (Puck Magazine, 1893).