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Nature of International Law [With all theories and Approaches]

Contents of the Blog

Question 1-5 would be on Approach 1 & Question 6-7 is based on Approach 2.


Question 1 : Discuss the nature and basis of International Law. [UPSC 2016]


Approach 1 : International Law is not a true law just containing rules of conduct of moral force only. Approach 2 : 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.

  • Analysing the divergence in the approach towards the international law, Edward Collins, perfectly summed up the issue that “Whether or not, one wishes to attribute a legal character to the norms of international law depends largely upon the definition of law' he chooses to accept”.

  • Lawrence, remarked that “Is there a true International Law' thus: “Everything depends upon the definition of law which we choose to adopt. The controversy is really a logomachy – a dispute about words, not the things.”

NATURE OF INTERNATIONAL LAW | ANALYTICAL OVERVIEW [8 Reasons]

  1. The answer depends on what is meant by ‘law’.

  2. When a crime happens, it is daily reported in media, but only serious breach of international law is reported in media. This can can give a distorted impression of the nature of international law.

  3. Fact is International law has no easy sanction for its breach, and there is no international police force or army that can immediately step in. On this count, international law is often perceived as not really law.

  4. However Hart – who argues that - law derives its strength from acceptance by society that its rules are binding, not from its enforceability. Then, International law is law.

  5. When we look at the sources of international law, its binding force does not come from the existence of police, courts and prisons. It is based on the consent (express or implied) of States, and national self-interest: if a State is seen to ignore international law, other States may do the same. The resulting chaos would not be in the interest of any State.

  6. While the language of diplomacy has changed over the centuries from Latin to French to English, international law has provided a vitally important and constantly developing bond between States. Today in many areas of international law the rules are well settled. As with most domestic law, it is how the rules are to be applied to the particular facts that cause most problems.

  7. The raison d’être of international law is that relations between States should be governed by common principles and rules. Yet, what they are is determined by national interest, which in turn is often driven by domestic concerns. Those matters on which international law developed early on included the immunity of diplomats and freedom of the high seas. The latter was crucial to the increase in international trade, the famous 1654 Treaty of Peace and Commerce between Queen Christina and Oliver Cromwell epitomising this.

  8. There are legal advisers for every foreign minister in every country. Point is these legal advisers are trained in law, not to practise law, rather to advise foreign ministers. If international law is not law, then legal advisers to foreign ministries are all drawing their salaries under false pretences.


Question 2 : International law is merely a positive morality. [UPSC 2006 & 2020]


AUSTIN [IS INTERNATIONAL LAW A MERE POSITIVE MORALITY?]

TWO ELEMENTS OF HIS DEFINITION : Austin definition contains two important elements of law.

  • Law is a 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

  • Command must be enforced by the sovereign authority, i.e. if laws are violated, there should be ‘adequate sanction behind it’ OR 'orders backed by threats’.

If these two elements are not there, such rule is not considered as a 'proper' Law.


AUSTIN VIEW ON INTERNATIONAL LAW :

  • International Law cannot be called law proper in true sense, because, it lacks two elements of law i.e., it has neither sovereign legislative authority to enact law nor there is an adequate sanction behind it.

  • In international law, there is no enforcement agency which can enforce it as a body of rules.

These are the reasons for the Austin preferred to call International Law as 'positive international morality’.


POSITIVE MORALITY : Since there is no sovereign authority and sanctions behind international law, it has been regarded by him as a rule of morality. .


CONCLUSION : Hence International Law cannot be accepted as a legal system.


CRITICISM OF VIEW OF AUSTIN :

Professor HLA Hart criticised the Austin approach of International law:

  • Claims/Disputes in International law are solved with references to precedents, treaties and juristic writings instead of referring to as to who is right or wrong or good or bad.

  • Rules of International law are different from Municipal law, and it exists not because of moral importance, rather because of convenience or necessity.

  • Practice of states indicate that claims expose the offender to serious criticism and are held to justify claims for compensation or retaliation.

CRITICISM ON AUSTIN VIEW | OTHER POINTS [THAT IL IS NOT MORALITY]

  • Sir Pollock argues that framers of states papers concerning foreign policy do not focus on moral argument or righteousness , rather focus on to precedents, treaties and opinions of specialists.

  • In addition to customs, treaties are now established means of law making in International law.

  • ICJ can decide disputes as are submitted to it vide Article 38 of the ICJ Statute as per IL.

  • Since the States look upon international law as governing their relations inter se, and ipso facto binding upon them, it would be pedantic to consider such a body of rules as 'true law’.

CONCLUSION : Jurist Bryce considered the imperative theory of Austin is 'untrue as a matter of history. On consideration of the above-said criticism, Austin view that international law is not a law but merely a positive morality, does not appear to be correct.



Question 3 : International Law is the vanishing point of Jurisprudence. [UPSC 2007 & 2019]


Holland | International Law is the vanishing point of jurisprudence, since it lacks any arbiter of disputed questions, save public opinion, beyond and above the disputed parties themselves, and since, in proportion as it tends to become assimilated to true law by the aggregation of States into a larger society, it ceases to be itself, and is transmitted into the public law of a federal Government.


Holland therefore, states that

  • International Law "can indeed be described as law only by courtesy, since the rights with which it is concerned cannot properly be described as legal.”

  • The law of nations is but private law 'writ large'.

  • International law lacks in any powerful arbiter and law without an arbiter is contradiction in terms. It is nothing more than the moral Code of nations; it is the vanishing point of jurisprudence.

His conclusion is based on the facts that

  • International law lacks an arbiter above the parties themselves.

  • In proportion, International law tends to become assimilated to true law by the aggregation of States into a larger society it ceases to be itself and is transmitted into the public law of a federal government.

  • According to Holland, the true test of law lies in the fact that it must be obeyed; if not obeyed, there is sanction (punishment). But international law has neither any powerful machinery nor any sanction to punish its transgressors and the aggressor - States make frequent violations of it and they go unpunished. Hence international law cannot maintain its existence due to its frequent violations with impunity.

  • Lord Salisbury observes: “International can be enforced by no tribunal and therefore to apply to it the phrase ‘Law' is to some extent misleading.”

CRITICISM OF HOLLAND VIEW : Holland's view of non-existence of sanctions behind international law is not correct. It can be only said that sanctions behind international law are much weaker than their counterparts in the municipal law, but saying no sanctions at all behind international law cannot be true.


  • UNSC can take Chapter VII – necessary action to maintain international peace & security.

  • Decisions of ICJ are final and binding. [Article 59 of ICJ Statute]

It must be admitted that international law is weak law but it does not mean that it does not exist and has no future.


Question 4 : What is so international in the so-called International Law?’ [UPSC 2002]


APPROACH 1 : INTERNATIONAL LAW IS NOT LAW IN THE TRUE SENSE OF THE TERM


GENERAL OVERVIEW | Hobbes, Pufendorf and Austin subscribed to the view that law 'properly so called' is a command of the sovereign, as there is no sovereign in International level, they deny legal character of International Law.

EXPONENTS : Holland, Jermy, Bentham, Hethro Brown, Lord Salisbury, etc. are other prominent jurists accepting this approach.


And then, TRY TO SUMMARIZE THE VIEWS OF AUSTIN AND HOLLAND. [It is discussed in previous 2 Questions]


CONCLUSIONS :

  1. In municipal law, there is a determinate superior political authority which may compel the citizens to observe the law. No such political authority exists in international law. Thereby, International Law lacks sanction which is an essential element of law.

  2. As compared to Municipal Law, International Law lacks an effective legislative machinery or executive agency.

  3. International law further does not have a potent judiciary. ICJ & ICC jurisdiction and powers are limited, and too much dependant on the consent of the states.

  4. International Law is considered by some writers as a quasi-law.


Question 5 : “International law has progressed by leaps and bounds; yet the theoretical controversy about the nature of international law is far, from over.” Comment. [UPSC 2001]


For this Question, One has to summarize the views of both Approach 1[discussed in Q4] and Approach 2 [Discussed in Q6].


Question 6 : International law is law or not is meaningless but it is generally obeyed. [UPSC 2004]


APPROACH 2 : INTERNATIONAL LAW IS LAW IN THE TRUE SENSE OF THE TERM

The writers who consider the International Law is law in the true sense of the term are Oppenheim, Lawrence, Starke, Salmond, Hall and other historical school jurists founded by Savigny and Maine, Prof.

Oppenheim regards International Law as true law on the following grounds:

  • International Law is constantly recognized as law in practice, Governments of different States feel that they are morally bound to follow and observe International Law.

  • Breaking of International Law by states, do not deny its legal existence rather than recognise its existence by justifying their conduct with proper interpretation.

Professor Starke :

  • It has been established by modern historical jurisprudence that in many communities, a system of law existed and was being observed although those communities lacked formal legislative authority. Such law did not differ in its binding operation from the law of any State with a true legislative authority to frame them.

  • Customary rules of International Law are diminishing and are being replaced by law making treaties and conventions. The rules laid down by these treaties are binding although they do not emanate from a sovereign political authority.

OTHER POINTS INDICATING INTERNATIONAL LAW AS TRUE LAW :

  • United Nations established and is based on the true legality of international law. The decision and resolutions of the General Assembly and Security Council Constitute Law binding on the members of the UNO.

  • In US, IL is treated as a part of their own law having the same force as the ordinary law binding their citizens.

  • Sir Henry Maine : in primitive societies, there were no sovereign political authorities, yet there were laws to bind the members of the societies in their conduct.

  • International law does not lack sanction such as the vigilant world public opinion, the sanction of the UN by collective security measures, intervention, violent self-help, defence and finally by war. The Security Council of United Nations imposes sanction upon the erring States.

  • Law is also observed by the consideration of justice and convenience and mere existence of police force does not compel obedience to law.

  • The element of fear is also not altogether absent in so far an international law is concerned.

CONCLUSION : No doubt International Law is less imperative and less explicit than the State law but nevertheless it is law.



Question 7 : International Law is a system without sanction. [UPSC 2011]


If rules are violated or obligations contained therein are not observed by the subjects, enacted specific penalty or punishment which is imposed in order to enforce obedience to a law is called sanction.


TWO VIEWS IN INTERNATIONAL LAW :

  • 1ST VIEW : Even if there is no sanction, still it is a law because sanction is not an essential element of law.

  • 2ND VIEW : International Law is not without sanction.

J.E.S. Fawcett says, “International order, far from perfect though it has its own sanctions, seldom imposed by force or command, but as it were, natural sanctions to mature and gradual in effect, but made compelling by the governing independence of the world”


According to Kelsen, law is a coercive force. The force may be either in the form of sanction or delinquency. In the International law, a sanction or delinquency is sanction.


Starke has pointed out following force behind the international law: (1) UNSC can take necessary action under Chapter VII (2) Decisions of ICJ is binding (3) UN Members undertaken to respect the territorial integrity and independence of each other and shall not use force against each other.


Prof. H.L.A. Hart states, “there exist among States rules imposing obligations upon them. Thus, it cannot be denied that there is no sanction behind the international law.


Classical International law : Sanctions were in form war and reprisals

Modern international law : Aggrieved state can take action in conformity with UN Charter – such sanctions individually or collectively by international organisations.


SANCTIONS BY STATES

  • Individually a State may apply sanction by means of self-help.

  • Self-help is a right of State which is available to the victim of a wrong.

  • Kelsen states, “In early law the execution of the sanction was decentralised, that is to say, it was left to the individual whose interest was violated by the behaviour of another individual which constituted the delict. The primitive legal technique is called the principle of self-help.”

  • At present, the action taken in self-help is required to be in strict compliance with the provisions of the Charter and within due limits of the powers vested in each of them. Armed attack is forbidden.

COLLECTIVE SANCTIONS : The International organisations which States themselves have established have been empowered to take collective sanctions against a State which violates the rules. For example the UN Charter postulates economic, financial and military sanctions under Chapter VII.

  • Economic & Financial Sanctions by UNSC. Examples : as South Rhodesia, South Africa, Cambodia,Liberia, Haiti, Angola, Rwanda, Syria etc.

  • Military Sanctions use of air, sea or land forces. Example : Against Korea, in Gulf Crisis (1990-91), Somalia, Rwanda, Haiti etc.

  • Political measures such suspension or expulsion of UN membership.

  • Measures can be undertaken by other International organisation [ILO, ICAO, WHO, IPO and ITO] and specialised agencies in their field also.


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