Public international law is comprised of rules and regulations that govern the relations between different countries, between countries and international organizations, and between countries and certain individuals (Botha, Ehrenbeck & Finney 2011). Public international law can be divided into five main categories: humanitarian law, international human rights law, international trade law, international environmental law, and international criminal law.
Each division of public international law governs a particular aspect of relations between parties. International law developed in response to conflicts between national states resulting from controversies over territorial rights (Botha, Ehrenbeck & Finney 2011). Today, public international law forms the foundation for communication, trade, and cooperation across borders. However, the legal nature of public international law is often questioned: “One of the long-standing debates in international literature is whether international law is in fact law” (Botha, Ehrenbeck & Finney 2011, p. 13). This essay aims to discuss the legal nature of public international law by comparing it to national law in order to outline their differences and similarities.
At first, it seems that there are many significant differences between public international law and national law. For instance, one of the distinctive features of national law that allows it to exist is a well-established legislative process with set procedures and regulations. In public international law, on the other hand, there is no formal legislative process. Moreover, there is also no court to enforce public international law.
Botha, Ehrenbeck, and Finney (2011) explain that international jurisdiction is based solely on consent and there is no set precedent system. National law, on the other hand, has a comprehensive court process for enforcing the law and ensuring the applicable punishment for those who do not comply. Consequently, national law also has a fully developed executive apparatus to execute judgments, whereas international law has poorly developed methods for imposing sanctions (Botha, Ehrenbeck & Finney 2011).
The final point of difference between the two types of law is their subjects. In the case of international law, the subjects are normally countries or states, whereas, in the case of national law, the subjects are private persons or legal entities. As a result of all the above features, public international law is not binding law in its full sense, as it does not have the necessary mechanisms for enforcing sanctions and judgments. Indeed, Article 59 of the Statute of the International Code of Justice states that “The decision of the Court has no binding force except between the parties and in respect of that particular case” (ICJ 1994, p. 28).
Thus international law is based on the consent of the states, and some states may choose not to adopt the sanctions or refuse to follow the laws. If we view the presence of executive mechanisms as the defining characteristic of law, the legal nature of public international law becomes questionable.
Nevertheless, national and international laws also have much in common. For instance, both public international law and national law define the acceptable norms of conduct, either for states, legal entities, or individuals (Botha, Ehrenbeck & Finney 2011).
The Statute of the International Court of Justice, for example, establishes a set of rules to be followed in case of legal action or conflict. There are set procedures for the election of court members, as well as for court hearings and decision-making. The statute also defines the scope of the court’s power in legal proceedings, such as requesting information, employing witnesses and experts, and releasing judgments. The second important similarity between international and national laws is that they both make use of the writings of jurists instead of relying solely on morality and ethics (Botha, Ehrenbeck & Finney 2011).
This is especially important, as the source of judgments distinguishes formal laws from informal rules and regulations. Despite the fact that international law does not rely on the precedent system, it does provide a strong basis for any decisions issued, which supports its legal nature. Lastly, both international and national laws can be altered if needed. In the case of public international law, any amendments or changes have to be approved by the treaty, whereas all changes to national laws are approved by statute. Formal amendment procedures also contribute to the legal nature of public international law, as it prevents unwanted changes and alterations to the law. The similarities between national and international law clearly indicate that if the legal nature of the former cannot be questioned, the same should apply to international law.
Overall, the legal nature of public international law rests on the similarities between it and national law. Like national law, international law comprises a set of accepted norms of conduct and has prescribed procedures in place for resolving any disputes or conflicts, which distinguishes it from informal rules and regulations. The practical differences between national and international laws are primarily due to the difference in subjects since it would be difficult and costly to create a similar executive apparatus for use on states. Finally, it is also important to note that public international law is still developing and adjusting to the current political system, which means that it could potentially become stronger and more comprehensive in the future.
Botha, NJ, Ehrenbeck, M, & Finney, PG 2011, Principles of international law, University of South Africa, Pretoria.
International Court of Justice (ICJ) 1994, Statute of the International Court of Justice. Web.