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Public International Law-Does it exist in the real world?

The title of this entry would create in people certain preset notions with regard to the applicability of Public International Law (PIL) in modern day polity at the state level and at the international level. The entry would proceed to show that PIL as we know it today does not hold relevance or significance as we are taught and as we perceive it to be.

PIL began with Hugo Grotius laying down the modern principles of International Law. These principles on a close analysis remain principles even till date with court decisions only reaffirming the same. The only concrete sources of International Law can be found in Article 38 of the ICJ Statute which enumerates the same as treaties, customs, state practice and judicial decisions. Even these can graduate from one level to another depending purely on usage. For example, the use of force concept which was confined only to select few nations graduated to be part of the League of Nations and then to the United Nations Charter as an essential feature. Time and state practice are primarily what PIL is based upon. On a close analysis, when looked at vis a vis from the various statute laws available and the existing structures present within states, International Law seems to be an ever evolving concept which concretises depending more upon geopolitical factors present rather than making it obligatory for states to follow it. When the word ‘obligation’ is used in the context of PIL, the concept of ‘jus cogens’ is bound to arise which deals with peremptory norms from which states cannot derogate. This obligation is vested upon all states but with regard to enforceability of the same, PIL lacks necessary teeth to deal with it. Example, Apartheid existed in South Africa till the 1990’s even though Jus Cogens as a concept had been clearly established in International Law a long time before.  The renowned international law scholar,  Ian Brownlie (mooters would always swear by his name) passed away last month.  In order to find information about his untimely death, for the most part websites such as ILSA and other websites catering to International Law had to be searched. Any other legal luminary would at least find a mention in any form of media present. This is a very preliminary example of the importance and the relevance persistent the world over. For the most part, the only point in time PIL is studied in great detail is during moot courts where the ICJ docket is searched for extensively considering the 100+ cases present.  Let me elaborate the awareness of International Law with a true incident.

A certain student, ‘X’ stated in front of a bench at the Jessup India rounds that the principle of non-refoulement has attained the status of customary international law based upon state practice and opinion juris. The judge in return (civil court judge) stated that he wished to see a Bareact to verify the same. While everyone reading this would respond to this incident saying that I cannot dismiss the existence of International Law on the basis of this microscopic example. I am merely trying to state that the level of awareness and credibility of International Law is extremely low and that while people may love the subject, it could find mention only in moot courts, legal academia, research papers. The ICJ does have an awesome backdrop with world class facilities but even the ICJ has been in reality remains a posh court complex with foreign delegates, secretaries and International lawyers (mostly academicians) having high profile interactions considering the political situation prevailing at that point in time.

A necessary argument now would be that merely because a law is not enforced properly and can never bind states in the real sense, does not mean that the law should not be followed or it’s existence can be questioned. This argument is very true since the world over; laws of all types always suffer from lacunae of some sort or the other which does not make the law bad as such. However, in the case of PIL states have no binding obligation whatsoever, the UN can intervene in matters concerning the states and can only mediate or request the decisions to be followed but more often than not, these interventions and decisions always remain at the negotiation stage and do not create a binding obligation upon states. The question of jurisdiction can be examined over here- contentious and advisory jurisdiction alike, the ICJ does pass decisions but they remain decisions in name only. (Nicaragua case).  For the most part, power politics by the members of the Security Council have a role to play in the functioning and the play of International Law which makes its entire functioning flawed (Pan Am Case). International Law and its medium the judicial wing of the UN, the ICJ have never found a proper place in the global legal structure present. This happens to be the root cause for its ineffectiveness. Unless and until, domestic legal systems the world over do recognize that PIL does exist for inter-state disputes and awareness is created about the same, it would certainly remain an uphill task for PIL to carve a niche for itself. The moment this does happen, PIL would then graduate from the zone of being a westernized concept which is resorted primarily by richer nations to a legal world order where states can actually rely upon it for justice to be delivered. Palestinians the world over are crying out for Jerusalem stating it is theirs, a true scholar of International Law cannot place Jerusalem under valid control of Israel (Construction of Wall Case around Jerusalem). Does Israel care what the ICJ thinks, does the world care what PIL states and have Palestinians got justice for what has been bestowed upon them?

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