Existence of International Law

International law is the overall rules and principles governing the relationship or issues that cross national boundaries, between country to country, and state with the subject of another law (not the state) or subject of law (not the state) of each other. However, there were many parties, including legal experts questioned the existence of international law. One of them was John Austin. In addition, other authors who have also questioned the character of international law were Hobbes, Pufendorf, and Bentham.

The views of John Austin (1790-1859) of the International Law colored by his theory of law in general. According to Austin's theory, Stricto Sensu law generated from the formal decisions emanating from the sovereign legislative body, which was politically the most high domiciled or at least there was such sovereign authority, then these rules could not be classified under the rules of law, but only the rules of the moral validity or purely ethical.

John Austin concluded that international law was not an actual law, but merely "positive international morality" that could be equated with binding rules of  a group or society. Furthermore, Austin described international law consisted of "the opinions or sentiments that took place among the nations in general". This view is in accordance with the classification of the three categories of law, namely the law of God (devine law), positive law, and positive morality.

The existence of several legal experts and ordinary people who doubt the existence of international law based on a comparison with national law in a country. When compared, of course the power between the two law system is very different. International Legal System does not recognize the supreme power to impose its decisions to the states. There is no international legislature that makes legal provisions that directly binds member countries, in addition to the absence of the armed forces to implement sanctions on offenders countries. However, besides that all, in fact, the existence of international law is not in doubt. Countries believe that international law exists. Countries respect and comply with international law because the compliance is necessary to set the relation to each other and to protect their own interests.

In addition, agencies and law enforcement officials and legal sanctions is important, but not the most decisive factor of the law. The existence of a law is actually determined by the attitude and outlook as well as legal and public awareness. If people feel, receive, and obey the rule of law, it is because it is consistent with the sense of justice and a sense of justice and the public, no matter whether there are institutions or law enforcement officials, then the rule can already be regarded as the rule of law. Although there is no agency or agencies that create, implement, and force it, but if the rule is accepted and adhered --- due in accordance with the legal awareness and sense of justice --- then people will look at it as a law.

Some real proof of existence of international law as the existing law -- which is growing rapidly in the field of International Law of Human Rights -- for example, are:

• The Universal Declaration of Human Rights
• International Covenant on Economics
• Social and Cultural Rights (ICESCR)
• The International Convenant on Civil and Political Rights (ICCPR), as well as
• Convention of Elimination and Descrimination Against Women (CEDAW).

All of them are products of international law which require all states to comply, the covenants even ordered the states to adopt the contents of covenants and organize them into national law of each country. Several other tangible evidence of the existence of international law is when there is international negotiations, the state in relation to other countries remains subject to the principles and rules of international treaty law (the law of trieties). Similarly, if successfully approved, then they are subject to and comply with the agreement as a rule of international law. Even countries in the war are to obey the principles and norms of international laws of war (humanitarian law).

The existence of a legal settlement institutions such as arbitration and various international tribunals always use legal arguments in the settlement of disputes. In practice, international law can be accepted and adapted into national law countries. There is no single country in making its national law without seeing the existing rules of international law.

Actually in my opinion, ordinary people actually do not doubt the existence of international law. The problem is, "How is the enforcement of international law? Why International Law can not be completed on a war or invasion against the sovereignty of other countries?"

For example, the actions taken by the United States against Iraq. In theory, it is clear that such actions violate the principles of International Law, because the sovereignty of the state is the guarantee of a country for independence, as well as a function of the state, which means the state can not run and carry out of the territory jurisdiction to interfere with the sovereignty of other countries. Thus, in the study of international law, what is done by the United States certainly can not be justified.

Formulation conducted by the American Institute of International Law which succeeded in formulating the Declaration of the Rights and Duties of Nations, which was followed by a study entitled Fundamental Rights and Duties of American Republics and the completion of the 1933 Montevideo Convention on Rights and obligations of States prepared by the Law Commission International United Nations has given birth to some extent some of the principles concerning the rights and obligations of the state.

This was partly reflected in some of the rights of the State, namely

• The right to liberty, as well as
• Right to exercise jurisdiction on the territory, people and things within its territory.

In addition, the state's obligation which intended as one of the most important is the obligation not to intervene in the problems that occur in other countries. Observing the case of the U.S. attack on Iraq, it can be judged that the action has violated the rules of international law, especially turns up to date there is no concrete evidence that can be presented to the international community by the United States regarding the existence of Iraq's weapons of mass destruction.

Furthermore, rejection of international law as the actual law in addition based on the view of John Austin is also based on the absence of sanctions. However, once again that the sanctions are very broad in scope and not limited to criminal law. Sanctions are very often seen as a punishment of deprivation of liberty (prison sentence), and death penalty. They ignore the existence of various kinds and forms of sanctions that can be imposed by the international community in the event of a violation of international law. These penalties can include demands apology (satisfaction), compensation / pecuniary, as well as the recovery of the state of the original condition (repartition). Besides, there are also sanctions in the form of violence such as severance of diplomatic relations, embargoes, retaliation, up to the war.

The existence of sanctions in international law was also confirmed by Hans Kelsen in his "Principles of International Law". According to him, international law is a true law, because this law to impose sanctions, such as the use of retaliation (reprisal), the war and the use of sanctions as a legitimate act of retaliation (counter-measures) to errors according to the law (legally wrong).

For example, when Iraq invaded Kuwait 1990 -1991,  International law was very harsh against Iraq. The international community expressed that such action was unlawful, immoral, unacceptable. Various sanctions imposed on Iraq. Sanctions even actually violated international law because there was no clarity of how long the sanctions would take place. Moreover, the sanctions were very interfering in domestic affairs of Iraq and deprived the rights of Iraq to develop themselves. Similarly with Iran. Although there is no evidence that Iran is developing weapons of mass destruction in Iran and what it does only for peaceful purposes and the development of science, but a wide variety of sanctions already applies to Iran.

The majority of states comply with international law. The number of violations is much less than the observance. Obedience is never published, thus forming the opinion that the existing international legal is merely violations without legal sanction.

International Law condition -- including its enforcement -- is very thick with the influence of powerful political world. When United States violated international law, then which country will isolate, excommunicate or embargo the U.S.?, given the United States is a great country that controls almost all aspects of political and economic world. Moreover, the absence of supra-national institutions reinforces the political world today. And Security Council of the United Nations is only inhabited by five major nations, one of which is the United States.

What are publicized by the mass media does not represent the whole. Internasional law is not just a matter of the United States, Iraq, Israel, and Palestine, where the U.S. and Israel have been violating international law without any sanction. International law is very broad. But the violations can not be used to draw the conclusion that international law does not exist. Similarly, the absence of sanctions until now for America and Israel also can not be used as an excuse to say that international law is not law.
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