International Law is Oxymoronic?
One of the most controversial issues that has been long debated and discussed and on which the opinions of the Jurists are sharply divided since the beginning of the science of law of nations concerns the status of international law. All the rules regulating the relations of states are part of international law in practice consistently since last 200 years, still a number of jurists, including those who used the expression of international law 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 the rules of conduct of moral force only. Another view is that international law is a true law, and it is to be regarded as in the same way as that of ordinary laws of the state which are binding upon the individuals. We shall discuss both the views below:
International law is not a true law:
Hobbes, Bentham and Pufendorf are of the view that international law is not legally binding on states. In the 19th century a number of prominent jurists took the similar view. The most prominent amongst them is the British jurist Austin. According to Austin, law is the command of the sovereign attended by sanction in case of violation of the command. In other words, law should be limited to rules of conduct enacted by a determinative legislative authority and enforced by physical sanction. The superior according to him is the real sovereign. This definition contains two important elements. Firstly, law is a command enacted by sovereign legislative authority i.e., any rule which is not enacted by sovereign or superior it cannot be regarded as law, and secondly, it must be enforced by sovereign authority i.e., if laws are violated, there must be adequate sanction behind it. The existence of these two elements is essential in order to call a rule as “proper” law. All other senses of law according to Austin are to be regarded as improper law. It was his view that international law cannot be called a proper law in the true sense, because it has neither sovereign legislative authority to enact laws nor there is an adequate sanction behind it. Since in international law, which is a body of rules governing the relations of sovereign states inter se, there is no sovereign political authority of state inter se and there is neither any supreme executive government to enforce these laws nor there exists any judicial organisation with compulsory jurisdiction, therefore international law cannot be accepted as a true legal system.
International law is really a true law:
Most of the jurists now subscribe to the view that international law is really law. So far as the sanction or coercive force behind the law is concerned, it may be said that it is not an essential element of law. The common law of England is its glaring example. Even if it is presumed that it is an essential element, it is wrong to say that there are no sanctions at all behind international law. To some extent covenant of the League of Nations provided, and now the United Nations Charter provides for some sanctions. So far as the legislative, judicial or executive branches in the international system are concerned, “what matter is not whether the international system has legislative, judicial or executive branches corresponding to those we have become accustomed to seek in our domestic society; what matter is whether international law is reflected in the policies of nations and in relations between nations”.
The arguments of the jurists, who regard international law as really law, may be summed up as follows:-
- The term law cannot be limited to rules and conduct enacted by sovereign authority. Sir Henry Maine, one of the chief exponents of historical school of jurisprudence, carried on research on historical jurisprudence and firmly established that in primitive societies there was no sovereign political authority yet there were laws.
- The Austinian concept of law fails to take into account for the customary rules of international law. If we accept the Austinian definition of law, common law of England we lose its legal validity.
- Customary rules of international law are diminishing and are being replaced by law making treaties and conventions. Now the bulk of international law comprises of rules laid down by various law making treaties, such as Geneva and Hague Conventions.
- States do not deny the existence of international law. On the contrary, they interpret international laws so as to justify their conduct.
- As per the statue of the International Court of Justice, the International Court of Justice has to decide disputes as are submitted to it in accordance with international law.
- The United Nations is based on the true legality of international law.
- So far as the sanction of law is concerned, international law does not completely lack it.
Conclusion: International law is a weak Law:
International law is a law in the true sense of the term. State practice as well as practices of the international institutions affirms the legal character of international law. However, it has to be conceded that it is a weak law. Its rules are not as effective as rules of municipal law are. While it is conceded that international law is a weak law, it should not be understood that a weak law is not a law at all. It remains primarily a law for states and will continue to play its role as long as the world is divided into states. As far as its weaknesses are concerned, it is so because of its peculiarities and due to certain reasons. Development over the past half-century in particular indicates considerable progress towards their amelioration. However, much has to be done. In future, it may require the similar status to that of municipal laws of a state when these weaknesses are removed