IS INTERNATIONAL LAW A TRUE LAW?

Thursday, April 24, 2008

DEFINITION

Law is that element which binds the members of the community together in the adherence to
recognized values and standards. It is both permissive in allowing individuals to establish their
own legal relations with rights and duties, as in the creation of contracts, and coercive, as it
punishes those who infringe its regulation

International law, as understood among civilized nations, may be defined as consisting of those
rules of conduct which reason deduces, as consonant to justice, from the nature of the society
existing among independent nations; with such definitions and modifications as may be
established by general consent (element of international law by Wheaton). It can be regarded as
laying down as established practice of international law that in the absence of stipulation a new
state takes over and becomes bound by the liabilities of its predecessor.

The expression ‘International Law’ and ‘Law of Nations’ are synonymous and are equivalent
terms. Professor Charles Cheney defines International Law as that body of law which is
composed for its greater part of principles and rules of conduct which states feel themselves
bound to observe, and therefore, do commonly observe in their relations with each other. While
according to Oppenheim, Law of Nations or International Law is the name for the body of
customary and treaty rules which are considered legally binding by States in their intercourse with
each other.

Public international law (or international public law) concerns the relationships between
sovereign nations. International law consists of rules and principles which govern the relations
and dealings of nations with each other. It is developed mainly through multilateral conventions.
Its modern corpus started to be developed in the middle of the 19th Century.

International law is divided into conflict of laws (or private international law) and public
international law (usually just termed as international law). The former deals with those cases in
which foreign elements obtrude, raising questions as to the application of foreign law or the role
of foreign courts. For example, if two Englishmen make a contract in France to sell goods
situated in Paris, an English court would apply French law as regards validity of that contract. By
contrast, public international law is not simply an adjunct of a legal order, but a separate system
altogether.

NATURE OF INTERNATIONAL LAW

One of the most controversial issues that has long been debated and discussed and on which the
opinions of the jurists are sharply divided since the beginning of the sciences of law of nations
concerns the status of International Law. Although rules regulating the relations of States are
referred to International Law in practice consistently since 200 years, a number of jurists have
expressed doubts on the question: Is International Law really law? One view is that International
Law is not a true law. It is a code of rule of conduct of moral force only. Another view is that
International Law is a true law, and it is to be regarded as law in the same way as that of ordinary
laws of a State which are binding upon the individuals.
Austin’s View

According to Austin, international law is not legally binding on States. Law is the command of
the sovereign attended by sanction in case of violation of the command. In the other words, law
should be limited to rules of conduct enacted by determinate legislative authority and enforced
by physical sanction. The superior according to him is the real sovereign. The definition contains
two important elements. Firstly, law is command enacted by the sovereign legislative authority
i.e., any rule which is not enacted by sovereign or superior cannot be regarded as law. And
secondly, it must be enforced by the sovereign authority i.e., if laws are violated, there should be
adequate sanction behind it.

Logically, if the rules concerned did not in ultimate analysis issue form a sovereign authority,
which was politically superior, or if there were no sovereign authority, then the rules could not
be legal rules, but rules of moral or ethical validity only. Applying this general theory to
international law, as there was no visible authority as legislative power or indeed with any
determinate power over the society of the States, Austin concluded that international law was not
true law but ‘international positive morality’ only analogous to the rules binding a club or society.

Oppenheim’s View

Oppenheim says that law is a body of rules for human conduct within a community which by
common consent of this community shall be enforced by external power According to this
definition, essential conditions for the existence of law are threefold. Firstly, there must be a
community. Secondly, there must be a body of rules of human conduct within that community,
so that the community may be orderly governed. All the communities submit to the rule of law
because they wish to afford due respect and protection to the dignity of men and nations. And
thirdly, there must be common consent of that community that these rules shall be enforced by
external powers. It means that it is not necessary that rules should be enacted through law-
making authority or there should exist a law administering court within the community
concerned.

ANALYSIS

Public international law covers relations between states in all their myriad forms, from war to
satellites, and regulates the operations of the many international institutions. It may be universal
or general, in which case the stipulated rules bind all the states (or practically all depending upon
the nature of the rule), or regional, whereby a group of states linked geographically or
ideologically may recognize special rules applying only to them.

The rules of International law must be distinguished from what is called international comity, or
practices such as saluting the flags of foreign warships at sea, which are implemented solely
through courtesy and are nor regarded as legally binding. Similarly, the mistake of confusing
international law with international morality must be avoided. While they may meet at certain
points, the former discipline is a legal one both as regards its contents and its form, while the
concept of international morality is branch of ethics. However, this does not mean that
international law can be divorced from its value.
Tr44CONCLUSION

It may be concluded that at present, World is, in reality, regarded as an international community.
John Austin regarded International Law as a ‘positive morality’ in the 19th century, when
international community lacked legislation, a court, sanctioning powers and enforcement
machinery. And in view of all these if he concluded that International Law is not a true law,
perhaps he was not wrong. But presently, international legislation has come into existence as a
result of multinational treaties and conventions. These include the recognition that certain rules
have the character of jus cogens, which reduces the area for the operation of purely consensual
rules, and establishes that within general body of rules of the International Law there exists
superior legal rules, with which rules of a lower order must be compatible.

Practice of states suggests that they consider themselves bound by such rules. If rules are
violated by a State, sanctions may be applied against it not only by the aggrieved State itself but
collectively by the United Nations Organization (UNO) as well. Further, international
community has a Court (International Court of Justice), whose decisions are binding upon
the parties to a case. If a party falls to perform its obligations incumbent upon it under a
judgment rendered by the Court. Security Council of the United Nations is empowered to take
measures to enforce the decisions of the Court, if the aggrieved party seeks the help of the
Council.

Existence of International legislation, a Court, sanctioning authority and the enforcement

machinery are the developments of the present century. Personally, I agree with the view of John
Austin. But, the Statement of “International Law is a true law” is evident even if Austin’s
definition is accepted. In the light of these developments, perhaps one would not hesitate to call
International Law as a true law even if Austin’s definition of law is accepted.[]

Bibliographies:
1. Law Dictionary, 1999. by Mian Asad Hakim, Lahore: Mansoor Book House, First Edition.
2. Starke’s, J.G., Introduction to International Law, New Delhi: Aditya Books (P) Ltd., 1989.
3. Shaw, Malcolm N., International Law, Cambridge: Cambridge University Press, Fifth Edition,
2003.

4. Oppenheim, International Law, Vol. 1, Eight Edition (1995).

5. Agarwal, H.O. Dr., International Law , Allahabad: Asia Press, Third Edition, 1995.
6. http://en.wikipedia.org/wiki/international_law