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Submitted by Rohini Kamble

I] INTRODUCTION

It is necessary to discuss the question whether International Law is true law or not, because it helps to understand the nature of International Law. However, this question is only of academic interest as it has been debated, discussed and well established that International Law is true law.

II] WHETHER INTERNATIONAL LAW IS LAW IN THE TRUE SENSE OF THE TERM OR NOT

This controversy depends upon the definition of the word 'Law'. International Law is not included in the category of Law, if the views of Hobbes, Austin and Pufendrof are taken into consideration. According to them Law is command of sovereign enforced by superior political authority. Whereas, if the view that the term 'law' cannot be limited to the rules enacted by the superior political authority, is taken into consideration, then International Law can be included in the category of Law. According to jurists like Holland, Bentham, Jethro Brown etc; international law lacks an effctive legislative machinery, an executive machinery and potent judiciary and above all the sanction which is necessary for the enforcement of law. On the other hand, it has been pointed out by some of the jurists that sanction is not an essential element of law. Even if it is regarded as essential element then it would be wrong to say that international law has not sanction behind it. Public opinion is considered to be the ultimate sanction behind the binding force of international law and for the matter, behind any law. According to Oppenheim, the existence of law presupposes the existesnce of three pre-requisites:
i) a community,
ii) a body of rules; and
iii) common consent of the community that if necessary these rules shall be enforced by an external power.
and these three requirements are satisfied by international law. The fact that international law is frequently violated does not mean that it is not a law. International law operates in decentralized system. According to Starke, international law is a 'weak law' because existing international machinery operating mainly through law making conventions is not comparable in efficiency to State lagislative machinery. It can be called as weak law only when compared with Municipal Law otherwise, it is as strong and as effective as it can be under the system in which it operates. Therefore,it can be conclued that international law is in fact law.

III] IS INTERNATIONAL LAW A MERE POSITIVE MORALITY?

It has been well established that international law has a binding nature, whereas the rule of morality is simply a standard of right behaviour based on the personal judgements. Edward Collins points out," Although attitudes about morality, when widely shared, influence the development of international law, there is no recognised legal obligation to obey the norms of morality until they are accepted by authoritative decision makers as international law." According to Frederick pollock," If international law were only a kind of morality, the framers of the State papers concerning foreign policy would throw all their weight on moral arguments. But as a matter of fact, this is not what they do. They appeal not to the general feeling of moral rightness, but to precedents, to treaties and to opinions of specialists." Also Prof. Hart subscribes. According to him,"The rules of international law, like those of Muncipal Law, are often morally quite indifferent. A rule may exist because it is convenient or necessary to have some clear fixed rule about the subjects with which it is concerned but not because only moral importance is attached to a particluar rule."

IV] WHETHER INTERNATIONAL LAW IS THE VANISHING POINT OF JURISPRUDENCE?

According to Holland, International law cannot be kept in the category of law as it is the vanishing point of jurisprudence. Holland does not seem to be correct in this view. As it is pointed out that sanction is not most essential element of law. Even if it is regarded as an essential element, it will not be proper to say that international law has no sanctions at all. War reprisals, restorsion, Pacific Blockade. etc were regarded as sanctions under traditional international law. Holloand's statement, that there is no judge or arbitrator to decide International dispute, cannot be accepted because the International Court of Justice is a judicial organ of United Nations and its decisions are binding upon the parties to a dispute. Although, I.C.J lacks compulsory jurisdiction, there is no effective executive authority to enforce its decisions, its decision cannot be applied to future cases as precedents, and the binding force of its decisions is very limited. Nevertheless, the decisions are binding upon the parties to a dispute and only in respect of that dispute. The provison to this efffect is given in Article 59 of the Statue of I.C.J. Also Article 94 of the U.N. Charter provides that each member of the U.N. undertakes to comply with the decision of I.C.J. in any case to which its a party. Further, under Article 36(2) of the Statute of the I.C.J. a State party may confer compulsory jurisdiction upon the court. As many as 47 States have conferred compulsory jurisdiction upon the court. Therefore, International law is in fact a law and it is not right to say that it is vanishing point of jurisprudence.

V] WEAKNESS OF INTERNATIONAL LAW


1) It lacks effective law making authority
2) It lacks effective machinery or authority to enforce its rules
3) I.C.J. has no compulsory jurisdiction
4) The sanctions behind international law are very weak
5) It cannot intervene in the matters which are within the domestic jurisdiction of States
6) Many rules of international law are uncertian and vague
7) International law has failed to maintain order and peace in the world.

VI] SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW


1) I.C.J. should be given compulsory jurisdiction in the true sense of the term
2) An International Criminal Court should be established to decide the cases of International crimes
3) International law should be properly codified and scientifically revised from time to time.
4)The machinery to enforce the decisions of the World Court should be strenghtened.
5) The powers and scope of the activities of the international law Commission should be expanded
6) The doctrine of judicial precedents should be applied
7) More law making treaties and conventions should be made and there should also be provision for their revision from time to time
8) The legislative activities of the General Assembly should be further enlarged
9) The U.N. charter should be amended as to authorise the U.N. to intervene in such matters with the domestic jurisdiction of States as are of international concern.

2] BASIS OF INTERNATIONAL LAW

There are two main theories which attempt to explain the basis of international law;
i) Theories as to law of nature
ii) Positivism

i) THEORIES AS TO THE LAW OF NATURE

In 16th and 17th century, the jurists were of the view that the international law is based on law of nature. according to this theory, International law has been followed by States because it is the law of nature which is higher law. According to them natural law confers binding force on international law. According to Grotius natural law, is the 'dictate of right reason'. This theory has been criticised. The definition of the term 'natural law' is very vague and uncertain as each follower gives a different definition. Different meanings are ascribed such as reason, justice, utility, general interest of international community etc. It must be admitted that the law of nature has greatly influenced the growth of international law, but the theory is not based on realities and actual practice of the States.

ii) POSITIVISM

This theory is based on actual practice of the States. It has been pointed out that the will of States is the main source of international law. It is said that the international law is binding because States have consented for the rules of international law. Starke has rightly stated : "International law can in logic be reduced to a system of rules depending for their validity only on the facts that States have consented to them." According to Italian jurist, Anzillotti, the binding force of international law is based on a fundamental principal known as 'Pacta Sunt Servanda' (agreements entered into by States must be respected and followed in good faith). But the Positivist theory fails to explain thee binding force of customary rules of international law.

VII)CRITICISM

Many jurists have criticized this theory. Following are the main points of criticism:
a) The concept of will of State is metaphorical. The will of the State is nothing but the will of the people who compose it.
b) It fails to explain the case of the admission of a new State into the family of nations. When a State is admitted to the family of nations, international law becomes applicable to it even without its consent.
c) The positivists have based their theory on consent which has been severely criticised by the jurists.
d) In practice, it is never necessary to show in regard to any particular rule of customary international law that the States had given their consent.
e) There are certain principles of international law which are applicable to non-members of the U.N. although they had never given their consent for it.

3] SOME OTHER THEORIES REGARDING THE BASIS OF INTERNATIONAL LAW

Apart from the abovementioned theories, there are some other theories regarding the basis of international law:
i) Theory on consent
ii) Auto-limitation theeory
iii) Pacta Sunt Sarvanda
iv) Theory of fundamental rights

i) THEORY OF CONSENT

The Theory of Consent is based on the Positivists Theory which has been criticised earlier. It fails to explain the basis of international law. According to this theory, States observe the rules of international law because they have given their consent. The points of criticism are as follows;
a) As regards customary rules, it is not necessary to prove that States have given their consent.
b) In regard to customary rules, the basis of implied consent is far from correct.
c) It fails to explain the case of recognition of a new State.
d) It fails to explain the true basis of international law.

ii) AUTO-LIMITATION THEORY

Yet another theory based on the theory of consent which fails to explain the basis of international law. It is presumed that States has a will. Moreover, auto-limitation is no limitation at all.

iii) PACTA SUNT SERVANDA

According to Anzillotti, the binding force of international law is based on a fundamental principal known as 'Pacta Sunt Servanda' which means, agreements entered into by States must be respected and followed in good faith. Nevertheless, this theory also fails to explain the binding force of customary rules of international law. As an author rightly remarks, " The realization that international customary law does not rest on agreements and that the tenet of pacta sunt servanda is itself a rule of customary law led to new formulations of the basic norms.

iv) THEORY OF FUNDAMENTAL RIGHTS

As this theory is based on naturalistic view, it is contended that like man, States also possesed certain fundamental rights because so far there is no world authority over and above the States. This theory has also been criticised, because it fails to explain the basis of international law.

Submitted by Rohini Kamble

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