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 adh adheren erence ce to recog ecogni nize zed d valu alues and and stan stand dards ards.. It is both 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 dened as cons consis isti ting ng of thos those e rule rules s of cond conduc uctt whic which h reas reason on dedu deduce ces, s, as cons conson onan antt to just justic ice, e, from from the the natu nature re of the the soci societ ety y exis existi ting ng amon among g independent nations; with such denitions and modications as may be esta establ blis ishe hed d by gene genera rall cons consen entt ele eleme ment nt of inte intern rnat atio iona nall law law by !heaton". It can be regarded as laying down as established practice of international law that in the absence of stipulation a new state ta#es over and becomes bound by the liabilities of its predecessor. $he expression %International Law& and %Law of 'ations& are synonymous and are e(uivalent terms. )rofessor *harles *heney denes International Law Law as that that body body of law law whic which h is comp compos osed ed for for its its grea greate terr part 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. !hile according to +ppenheim, Law of 'ations or International Law is the name for the body of customary and treaty rules which are considered legally binding by tates in their intercourse with each other. other. )ubl )ublic ic inte intern rnat atio iona nall law law or or inte intern rnat atio iona nall publ public ic law" law" conc concer erns ns the the relationsh relationships ips between between sovereign sovereign nations. nations. Internatio International nal law consists 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 -th *entury. International law is divided into con/ict of laws or private international law" and public international law usually just termed as international law" law".. $he $he form former er deal deals s with with thos those e case cases s in whic which h fore foreig ign n elem elemen ents ts obtrude, raising (uestions as to the application of foreign law or the role of foreign courts. 0or example, if two 1nglishmen ma#e a contract in 0rance 0rance to sell sell goods goods situat situated ed in )aris, aris, an 1nglis 1nglish h court court would would apply apply 0ren 0rench ch law law as regar regards ds vali validit dity y of that that cont contra ract ct.. 2y cont contra rast st,, publi public c international law is not simply an adjunct of a legal order, but a separate system altogether. NATURE OF INTERNATIONAL LAW
+ne 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. 3lthough rules regulating the relations of tates are referred to International Law in practice consistently since 455 years, a number of jurists have expressed doubts on the (uestion6 Is International Law really law7 +ne view is that International Law is not a true law. It is a code of rule of conduct of moral force only. 3nother 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 tate which are binding upon the individuals.
Austin’s View
3ccording to 3ustin, international law is not legally binding on tates. 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. $he superior according to him is the real sovereign. $he denition contains two important elements. 0irstly, 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. 3nd secondly, it must be enforced by the sovereign authority i.e., if laws are violated, there should be ade(uate 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. 3pplying 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 tates, 3ustin 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
+ppenheim 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 3ccording to this denition, essential conditions for the existence of law are threefold. 0irstly, there must be a community. econdly, there must be a body of rules of human conduct within that community, so that the community may be orderly governed. 3ll the communities submit to the rule of law because they wish to a8ord due respect and protection to the dignity of men and nations. 3nd 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 law9ma#ing authority or there should
exist a law administering court within the community concerned. ANALYSIS
)ublic 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 lin#ed geographically or ideologically may recognize special rules applying only to them. $he rules of International law must be distinguished from what is called international comity, or practices such as saluting the /ags of foreign warships at sea, which are implemented solely through courtesy and are nor regarded as legally binding. imilarly, the mista#e of confusing international law with international morality must be avoided. !hile they may meet at certain points, the former discipline is a legal one both as regards its contents and its form, while the concept of international morality is branch of ethics. :owever, this does not mean that international law can be divorced from its value.
Tr44ONLUSION
It may be concluded that at present, !orld is, in reality, regarded as an international community. ohn 3ustin regarded International Law as a %positive morality& in the -th century, when international community lac#ed l!"isla#i$%, a &$ur#, sa%&#i$%i%" p$'!rs a%d !%($r&!)!%# )a&hi%!ry . 3nd in view of all these if he concluded that International Law is not a true law, perhaps he was not wrong. 2ut presently, i%#!r%a#i$%al l!"isla#i$% has come into existence as a result of multinational treaties and conventions. $hese include the recognition that certain rules have the character of jus cogens, which reduces the area for the operation of purely consensual rules, and establishes that within general body of rules of the International Law there exists superior legal rules, with which rules of a lower order must be compatible. )ractice of states suggests that they consider themselves bound by such rules. If rules are violated by a tate, sa%&#i$%s may be applied against it not only by the aggrieved tate itself but collectively by the
ecurity *ouncil of the is evident even if 3ustin&s denition is accepted. In the light of these developments, perhaps one would not hesitate to call International Law as a true law even if 3ustin&s denition of law is accepted.?@ -i.li$"raphi!s/ -. Law Aictionary, -. by Bian 3sad :a#im, Lahore6 Bansoor 2oo# :ouse, 0irst 1dition. 4. tar#e&s, .C., Introduction to International Law, 'ew Aelhi6 3ditya 2oo#s )" Ltd., -D. E. haw, Balcolm '., International Law, *ambridge6 *ambridge
F. +ppenheim, International Law, Gol. -, 1ight 1dition -H". H. 3garwal, :.+. Ar., International Law , 3llahabad6 3sia )ress, $hird 1dition, -H. . http6JJen.wi#ipedia.orgJwi#iJinternationalKlaw
