NATURE OF INTERNATIONAL LAW

It is necessary to discuss the question whether international Law is true law or not, because it helps to understand
the nature of International Law. However, this question is only of academic interest as it has been debated,
discussed and well established that International Law is true law.

WHETHER INTERNATIONAL LAW IS LAW IN THE TRUE SENSE OF THE TERM OR NOT
This controversy depends upon the definition of the word 'Law'. International Law is not included in the
category of Law, if the views of Hobbes, Austin and Pufendrof are taken into consideration. According to them
Law is command of sovereign enforced by superior political authority. Whereas, if the view that the term 'law'
cannot be limited to the rules enacted by the superior political authority, is taken into consideration, then
International Law can be included in the category of Law. According to jurists like Holland, Bentham, Jethro
Brown etc; international law lacks an effective legislative machinery, an executive machinery and potent judiciary
and above all the sanction which is necessary for the enforcement of law. On the other hand, it has been pointed
out by some of the jurists that sanction is not an essential element of law. Even if it is regarded as essential
element then it would be wrong to say that international law has not sanction behind it. Public opinion is
considered to be the ultimate sanction behind the binding force of international law and for the matter, behind
any law.
According to Oppenheim, the existence of law presupposes the existence of three pre-requisites: i) a
community, ii) a body of rules; and iii) common consent of the community that if necessary these rules shall be
enforced by an external power. and these three requirements are satisfied by international law. The fact that
international law is frequently violated does not mean that it is not a law. International law operates in
decentralized system.
According to Starke, international law is a 'weak law' because existing international machinery operating
mainly through law making conventions is not comparable in efficiency to State legislative machinery. It can be
called as weak law only when compared with Municipal Law otherwise, it is as strong and as effective as it can
be under the system in which it operates. Therefore, it can be conclude that international law is in fact law.

IS INTERNATIONAL LAW A MERE POSITIVE MORALITY?

It has been well established that international law has a binding nature, whereas the rule of morality is
simply a standard of right behaviour based on the personal judgements. Edward Collins points out," Although
attitudes about morality, when widely shared, influence the development of international law, there is no
recognised legal obligation to obey the norms of morality until they are accepted by authoritative decision makers
as international law."
According to Frederick Pollock," Of international law were only a kind of morality, the framers of the
State papers concerning foreign policy would throw all their weight on moral arguments. But as a matter of fact,
this is not what they do. They appeal not to the general feeling of moral rightness, but to precedents, to treaties
and to opinions of specialists." Also Prof. Hart subscribes. According to him, "The rules of international law, like
those of Municipal Law, are often morally quite indifferent. A rule may exist because it is convenient or necessary
to have some clear fixed rule about the subjects with which it is concerned but not because only moral importance
is attached to a particular rule."

WHETHER INTERNATIONAL LAW IS THE VANISHING POINT OF JURISPRUDENCE?

According to Holland, International law cannot be kept in the category of law as it is the vanishing point
of jurisprudence. Holland does not seem to be correct in this view. As it is pointed out that sanction is not most
essential element of law. Even if it is regarded as an essential element, it will not be proper to say that international
law has no sanctions at all. War reprisals, restoring, Pacific Blockade. etc were regarded as sanctions under
traditional international law. Holloand's statement, that there is no judge or arbitrator to decide International
dispute, cannot be accepted because the International Court of Justice in a judicial organ of United Nations and
Its decisions are binding upon the parties to a dispute. Although, I.C.J lacks compulsory jurisdiction, there is no
effective executive authority to enforce its decisions, its decision cannot be applied to future cases as precedents,
and the binding force of its decisions is very limited. Nevertheless, the decisions are binding upon the parties to
a dispute and only in respect of that dispute. The provision to this effect is given in Article 59 of the Statue of
I.C.J. Also Article 94 of the U.N. Charter provides that each member of the U.N. undertakes to comply with the
decision of I.CJ. in any case to which it a party. Further, under Article 36(2) of the Statute of the I.C.J. a State
party may confer compulsory jurisdiction upon the court. As many as 47 States have conferred compulsory
jurisdiction upon the court. Therefore, International law is in fact a law and it is not right to say that it is vanishing
point of jurisprudence.