Thursday, April 24, 2008
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.
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.
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.
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.
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 Austin’s definition is accepted. In the light of these developments, perhaps one would not hesitate to call International Law as a true law even if Austin’s definition of law is accepted.
1. Law Dictionary, 1999. by Mian Asad Hakim, Lahore: Mansoor Book House, First Edition.
2. Starke’s, 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.