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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.

Austins 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.
Oppenheims 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 Austins definition is
accepted. In the light of these developments, perhaps one would not
hesitate to call International Law as a true law even if Austins definition
of
law
is
accepted.[]
Bibliographies:
1. Law Dictionary, 1999. by Mian Asad Hakim, Lahore: Mansoor Book
House,
First
Edition.
2. Starkes, 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

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