Is International Law Really Law?

There are several ways to think about law. In the domestic legal system, we think of law as the rules that
the government issues to control the lives of its citizens. Those rules are generally created by the
legislature, interpreted by the judiciary, and enforced by the executive branch, using the police, if
necessary, to force citizens to obey. What is law for the international community if there is no one
legislature, judiciary, executive branch, or police force?

Imagine a school playground with several children at play. The law is the set of playground rules that
the teacher tells her students. For example, she might tell them, Dont hit your classmate. Two different
reasons can explain why the children will follow this rule. On the one hand, they may follow the rule only
because they are afraid of being punished by the teacher. On the other hand, the students may believe that
it is a bad thing to hit their classmates. Since it is a bad thing to do, they will follow the teachers rule.

In the first case, they will obey the rule only if the teacher is there and ready to punish them. In the second
case, students will obey the rule even if the teacher is not there. In fact, even if the teacher is not present,
the children may obey the rule because they have become used to not hitting each other and have
therefore enjoyed playing with each other.

Just as certain common understandings between children may make it easier for them to play, collective
agreement on certain rules can often serve the interests of all the members of a community. Just as on a
playground without a teacher, in the international setting there is no central authority. For the most part,
however, states will follow the rules they have agreed to follow because it makes these interactions easier
for all parties involved.

Thus, the fact that there is no overall authority to force compliance with the rules does not necessarily
mean that there is no law. Law still exists in this setting, though it may be practiced and enforced in
different ways. International law can therefore be called real law, but with different characteristics from
the law practiced in domestic settings, where there is a legislature, judiciary, executive, and police force.

Source:

http://www.globalization101.org/is-international-law-really-law/

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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.

CONCLUSION

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.[]

SOURCE: AINI ARYANI, LLB (HONS)

SILAKAN KUNJUNGI WEBSITE PRIBADI AINI ARYANI DI: WWW.AINIARYANI.COM

http://ainiaryani.blogspot.com/2008/04/is-international-law-true-law.html