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2. International Law is the vanishing point of Jurisprudence.
Explain.
INTRODUCTION:- Holland has remarked that International Law is
the vanishing point of jurisprudence in his view , rules of international
law are followed by courtesy and hence they should not be kept in the
category of law. The international Law is not enacted by a sovereign
King. It has also no sanctions for its enforcement which is the
essential element of municipal law. Holland further say that
International Law ass the vanishing point of Jurisprudence because in
his view there is no judge or arbiter to decide International disputes
and that the rules of the I. Law are followed by States by courtesy.
Austin also subscribes to this view, Justice V.R.Krishna
Iyerformally member of Indian Law Commission has also remarked,
It is a sad truism that international law is still the vanishing point of
jurisprudence. This view is not correct. It is now generally agreed
that Hollands view that international law is the vanishing point of
jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that
International Law is not enacted by sovereign and has no agency for
its enforcement. But it is true that it is a weak law. A majority of
International lawyers not subscribe to this view is based on the
proposition that there are no sanctions behind international Law are
much weaker than their counterparts in the municipal law, yet it
cannot be successfully contended that there are no sanctions at all
behind international law.
The jurists who do-not consider international law as the vanishing
point of jurisprudence say that there is difference between state law
and International Law. International Law cannot be enacted by the
state but still there is agency for its enforcement. According to Dias,
International Law is obeyed and complied with by the states because
it is in the interests of states themselves.
For this object they give the following arguments:-
1. The judgements of International court of Justice are binding on
States.
2. If any state does not honour the order/judgement of International court
of justice, the Security Council may give its recommendation against
that state for action.
3. The judicial powers of International Court of justice (Voluntarily and
compulsory) have been accepted by the States.
4. The judgement of International court of Justice has been followed till
date.
5. The system of enforcement i.e. sanctions and fear, has been
developed.
For example :- If there is a threat to international peace and security,
under chapter VII of the U.N. Charter, the security council can take
necessary action to maintain or restore international peace and
security. Besides this the decisions of the International Court of
Justice are final and binding upon the parties to a dispute.
The gulf war 1991 Iraq trespassed and acquired the whole territory
of Quait in her possession by violation of International Law. The
Security Council passed a resolution against Iraq and asked her to
liberate Quait. But Iraq did not honour the resolution of Security
Council; hence therefore may economic and political restrictions were
composed against Iraq. But all in vain. Then USA and her allies were
permitted to compel Iraq to honour resolution of Security Council.
Consequently USA and her allies used force against Iraq and freed
Quait.
The same action was taken against North Korea and Cango during the
year l948 and 1961. The Security Council imposed penalty against
Libya for shooting down American Plane in Lockerbie (Scotland) in
1992, consequently two citizens were also killed. The Security
Council forced Libyan Government to surrender two terrorists who
were involved in this mishap and Libya obeyed the order of S.
Council.
The greatest proof of its utility and importance is the fact that its
successor the International Court of Justice established under the
United Nations charter is based on the Statute of the Permanent Court
of International Justice, the United Nations & Security Council
Charter possess wide powers to declare sanctions against the states
who are guilty of violence of the provisions of the same under
chapter-VII
Thus International Law is in fact a body of rules and principles which
are considered to be binding by the members of International
Community in their intercourse with other. The legal character of
International Law has also been recognized in 1970 Declaration on
the Principle of International Law Concerning Friendly relation and
Cooperation among states.
Conclusion:- On the basis of above discussion it may be concluded
that the International Law is in fact law and it is wrong to say that it
the vanishing point of Jurisprudence.
http://thecompanion.in/gaza-strip-the-vanishing-point-of-
international-law/
Coming back to the Hollands view that International Law cannot be called
Law, as it does not have a sovereign authority to enforce or it lacks sanctions,
it is at least, not applicable in the case of maintaining international peace and
security as the United Nations Charter has given the powers to the Security
Council to take actions under Chapter 7. But one of the striking features of
International Law is its consensual nature. Unlike municipal law, it depends on
the consent of those states that are governed by it. But the role of consent,
and the extent to which it is applicable, remains unclear. The hierarchical
structure of the Security Council and the alliance of US with the Zionist
aspirations of Israel together make the International Law vanishing, when it
comes to Palestine.
The United Nations General Assembly, the main deliberative organ of the
United Nations, composed of representatives of all Member States, which
granted Non member observer state status to Palestine recently on 29th
November 2012 was always in the forefront of protecting the rights of the
Palestinian people. The UNGA has come up with numerous resolutions
supporting the Palestinians. The resolution 3236 in 1974 recognizes the right
of the Palestinian people to regain its rights, including the right to self-
determination and the right of return. By resolution 3246 in 1974, it affirms the
legitimacy of armed resistance by oppressed people in pursuit of the right to
self-determination, and condemns governments which do not support that
right. Israel had been condemned in 45 resolutions by the subsidiary organ of
UNGA, United Nations Human Rights Council since its creation in 2006. The
Council had resolved almost more resolutions condemning Israel than on the
rest of the world combined. The 45 resolutions comprised almost half (45.9%)
of all country-specific resolutions passed by the Council. But the structure of
the UN Charter does not confer UNGA the power to initiate actions against the
violation of the UNGA resolutions by the member states. The resolutions are
recommendatory in nature under Article 11 of the Charter. But pursuant to its
Uniting for Peace resolution (Resolution 377 (V)) of November 1950, the
General Assembly may also take action if the Security Council fails to act,
owing to the negative vote of a Permanent Member, in a case where there
appears to be a threat to or breach of the peace, or act of aggression. The
Assembly can consider the matter immediately with a view of making
recommendations to Members for collective measures to maintain or restore
international peace and security. The Uniting for Peace resolution was initiated
by the United States, and submitted by the Joint Seven-Powers in October
1950, as a means of circumventing Soviet vetoes during the course of the
Korean War. But, this resolution was never employed by the UNGA which
clearly assert the power balances in the UN mechanism.
For Palestinians, violations of human rights are a day to day reality. The large
scale operations by the Israel only add to their miseries, or the world
community gets interests in the Palestinian issue when there is a large scale
attack, thanks to the sensational coverage of the war by different media
enterprises. Palestine is an occupied territory and the large scale migration
happened because of the atrocities of the Israel. The denial of their right to
return is the major human right violation, which they face. The key basis for
the right of return is derived from the individuals nationality. The individuals
possession of Palestinian nationality prior to 14th May 1948, i.e. before the
establishment of Israel, constitutes the first basis for the right of return. Under
the International Law of Succession, individuals belonging to a former State
have ipso facto acquired the nationality of the succeeding State. This is
included in the most of the modern day treaties. Article 14(2) of the
International Law Commission Draft Articles on Nationality of Natural Persons
in relation to the Succession of States stated: A State concerned shall take all
necessary measures to allow persons concerned who, because of events
connected with the succession of States, were forced to leave their habitual
residence on its territory to return thereto. Article 13(2) the Universal
Declaration of Human Rights, Article 12(4) of the International Covenant on
Civil and Political Rights, Article 49(1) of the Geneva Convention IV, various
provisions of the Refugee Law Convention affirms the right to return of the
Palestinians.
The legal status of Gaza strip is a matter of question in International Law ever
since Israel declared the disengagement plan in Gaza in 2005. The simulated
efforts to disengage from Gaza by Israel before the world were a clever tactic
on two fronts. The first one is to show the world that Israel is no more an
occupying power in Gaza, by which, avoiding the additional legal obligations
under International Humanitarian Law, as an occupying power. The legal
obligations of states in conflict are much lesser than the obligations of
occupants in the occupied territories under Fourth Geneva Convention. For
example, in case of food supply, the states engaged in armed conflict have the
obligation only to allow a free passage of all consignments of medical and
hospital stores (Article 23) whereas the occupying power has the duty of
ensuring the food and medical supplies of the population, that too, to the
fullest extent of the means available to it (Article 55).
The second one is to portray the armed resistance on the part of people who
fight for their right to self determination as acts of aggression and thereby
claiming a legitimate right to self defence. It is difficult to deny its status as an
occupying power factually as this is the same State that has occupied a
territory for over forty years and which exercises control over the means (food,
fuel and electricity) of providing for the local population, as well as the ability of
any existing authority to do so effectively. Substantial control of Gazas six
land crossings, control through military incursions, rocket attacks and sonic
booms, complete control of Gazas airspace and territorial waters etc., are
evidences for the effective control of the Gaza by Israel.
The positive sign with regard to International Law is that, while most of its
application vanishes in the Gaza Strip, the struggle of Palestinians for its
Statehood is recognized in the international legal platform. Likewise, the
history has to be documented, if not changed; the International Law has
documented the violations of law and justice by a Zionist regime. The United
Nations General Assembly on November 10, 1975 adopted Resolution 3379
by a vote of 72 to 35 (with 32 abstentions), determined that Zionism is a form
of racism and racial discrimination, but was revoked in 1991 with another
Resolution 46/86, shortly following the end of the Cold War. The time will
come when the international community will punish the Zionists for the crimes
committed against the humanity and the world will celebrate the full member
Statehood for Palestine and the return of all Palestinians to their soil.