LC 0703 Whether International Law is a true Law
0703 Whether International Law is a true Law
Before we go ahead and discuss about
the question, I want to clarify that it is only for the academic interest
because it has been well established for once and for all times that
international law is a true law.
The controversy whether international law is
true law or not depends upon the definition of the word law. As remarked by
Prof. Glanville L. Williams, “ The largest of jurisprudential controversy that
as to the word law is a verbal dispute and nothing else.” If we subscribe to
the view of Hobbes, Austin and Pufendorf, that law is a command of sovereign enforced
by superior political authority , The international law cannot be included in
the category of law. On the other hand, if you subscribe to the view that the
term ‘law’, cannot be limited to the rules elected by the superior political
authority, then international law can be included in the category of law.
According to Austin, law is given by audit
terminate Supriya political thought to political inferiors and is backed by a
coercive enforcement
agency. Thus, according to Austin, sanction occupies an important
place in the enforcement of law. People follow law due to sanction or coercive
element inherent in law. Hobbes also subscribes to this view. In the view of
Hobbes, Man is by nature nasty, brutish and violent and fear or sanction which
is inherent in law is necessary to maintain order in society. Further, men need
for their security “ A common power to keep them in awe and to direct their
action to common benefit.” Holland, Bentham, Jethro Brown, or other jurist who
deny the legal character of international law. According to this jurist,
international law legs and effective legislative machinery, and executed
machinery and potent judiciary and above all the sanction which is necessary for
the enforcement of law.
The definition of law given by Austin is not
correct. In the words of Prof. Oppenheim, “ this definition is not correct. It
does not cover that part of municipal law which is termed as unwritten or
customary law. There is, in fact, no community and no State in the world which
exists with written law only.” In his view, law is, “ A body of rules of human
conduct within a community which by consent of his community shall be enforced
by external power.” Brierly and Prof. Hart have also criticised the Australian
definition of law.
According to Brierly, “ unless we distort
facts so as to feed them into the definition, it cannot account for the
existence of English common law.” further, Sir Frederick Pollock writes, and as
probably most competent jurist would today agree, the only essential conditions
for the existence of law are a political community and the recognition by its
members of settled rules binding upon them in that capacity, international law
seems on the whole to satisfy these conditions.” Criticising the Australian
definition of the “law”, Prof. H.L.A. Hart has also written that this concept
plainly approximates closer to penal statutes enacted by legislature of a
modern State than to any other variety of law.”
According to Oppenheim, The existence of law
presupposes the existence of three pre requisites: 1. A community, 2. A body of
rules; 3. Common consent of the community that if necessary these rules shall
be enforced by an external power. As pointed out in the ninth edition of
Oppenheim’s International law (1992), “ The three requirements of this
definition satisfied by international law, to a greater or lesser extent. The
States of the world do together constitute a body bond together through common
interests which create extensive intercourse between them, and differences in
culture, economics structure a political system, do not affect as such the
existence of an international community as one of the basic factors of
international law. Rules for conduct of the members of that Community exist and
have existed for hundreds of years. Equally, there exist a common consent of
the community of states that rules of international conduct shall be in forced
by an external power, though in the absence of a central authority for this
purpose states have sometimes to take law into their hands by such means as
self-help and intervention…” further, outlying of resort to force by the United
nation and the steps for international enforcement action have led to less
reliance on self-help.
Most of the jurist now subscribe to the view
that international law is a law. It has been pointed out that sanction is not
an essential element of law. Even if it is regarded as an essential element, it
would be wrong to say that international law has no sanction behind it. Brierly
has rightly pointed out, “ it is both practically inconvenient and also
contrary to the best jurist thought to deny its legal character.” Views of the
jurist, who regard international law has really law may be summed up as follows:-
1. The term law cannot be
limited to rules of conduct enacted by a sovereign authority. It has been
established by historical jurisprudence that in many communities a system of
law adjusted although such communities lacked a formal legislative authority.
As pointed out by Starke, such law did not differ from any state law with true
legislative authority.
2. As pointed out by
Oppenheim, in practice, international law is recognised as law by States and
they consider it binding on them.
3. Even when the states
violate international law the never questions its legal existence or legal
character. On the contrary, they try to interpret the rules of international
law so as to justify their conduct.
4. The Austinian concept of law
fails to account for the customary rules of international law.
5. In the modern times,
customary rules of international law are diminishing and are being replaced by
lawmaking treaties and conventions.
6. When international
disputes arise, states, instead of relying on moral arguments based their
arguments on the provisions of duties, presidents and opinion of jurists.
7. In some states, for
example USA and UK, international law is treated as a part of their own law.
8. The statute of International
Court of Justice provides that the court shall decide such disputes as are
submitted to it in accordance with international law.
9. International
conferences and conventions treat international law as law in the true sense of
the term.
10. The United Nations is
based on the true legality of international law. The preamble to the United
Nations expresses the resolve of the member states to “ established conditions
under which justice and respect for the obligations arising from treaties and other
sources of international law can be maintained.”
11. It is also pointed out
that sanction is not an essential element of law. It is also a fact that people
generally follow law as a matter of habit and practice. However, international
law is not completely without sanction although the sanction behind it are
weaker as compare to State law. International law operates in decentralise
system. Each State is sovereign and equal in the eye of law. Article 59 of the
statute of International Court of Justice provides that the decision of the
International Court of Justice shall not be binding except upon a party to a
dispute and only in respect of the particular dispute. The decisions of the
international Court of Justice are bending upon the parties to the dispute. In
case any party fails to comply with the decision, the Security Council on the
request of other party may make recommendations or decide upon measures to be
taken to give effect to the judgement. Besides this, war, reprisals etc have been
regarded as sanction behind international law. Chapter 7 of the United Nations
charter towards for international enforcement action. Besides United Nations
charter, each and every international organisations such as ILO, WHO, FAO, ICAO
ITC has certain sanction in its constituent treaty.
12. Public opinion is also
considered as the ultimate sanction behind the bending force of international
law and for that matter, behind any law.
13. Those who denied the
legal character of international law emphasise it is frequently violated. It is
true that international law is frequently violated but it does not mean that it
is not law. Even state or municipal law is frequently violated. Frequency of
violations of law and the question of international law: being law are two
different things. Frequency of violations is connected with the weakness or
strength of the enforcement machinery. Though State or municipal law is
frequently violated, it is never said that it is not law. What is true of
municipal law should also hold good for international law.
Conclusion
On the basis of the above argument it may be
concluded that international law is in fact law. International law operates
entirely in different settings. It operates in a decentralised system. Prof.
Hart has rightly remarked that no simple deduction can be made from necessity of
organised sanctions to Municipal law in its setting of physical and
psychological facts, to the conclusion that without them international law, in
its every different setting imposes any obligation, if not binding and so not
worth the title of ‘law’. As aptly remarked by Louis Henkin, “ much of the misunderstandings of
international law is due to failure to recognise law where it exists”. Further,
fortunately, international law exists and it work not perfectly or always but
well enough and often enough to make a considerable difference in the conduct
of international affairs. Although there is no one to determine and adjudge the
law, there is a wide agreement on the consent and meaning of law and
agreements, even in a divided world burgeoning with new nation.
According to Starke, International law is a
‘weak law’ because existing international legislative machinery operating
mainly through lawmaking conventions is not comparable in efficiency to state
legislative machinery. Much of the controversy relating to international law is
due to the fallacy that the system of municipal law is an ideal one and all
legal systems and for that matter international law also must conform to that
ideal. Municipal law operates in centralised system whereas international law
operates in a decentralised system. The comparison is therefore not a happy
one. International law must be understood in its own setting and the system in
which it operates. It is as strong as effective as it can be under the system
in which it operates.
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