UNDERSTANDING THE LEGITIMATENESS OF INTERNATIONAL LAW ON TOUCHSTONE OF PRINCIPLES OF VARIOUS LEGAL JURISTS by -Rohan Samar and Shikhar Bhardwa
There has been a continuous and presumably an endless discussion on whether international law is actually a law. Along these lines, there exists a gathering of scholars who are of the view that international law is anything but not a real law while another gathering of researchers then again likewise contend that international law is the real law.2In the present-day setting of international law, the inquiry: “Whether international law is true law or not?” ought to give off an impression of being behind the times and absolutely unessential, for just the naive would question its lawful and binding character. Despite the fact that this question is currently just of scholastic interest since it has been settled for unequivocally times that international law will be law, a discussion of this question is as yet significant for it assists with understanding the nature of international law. During the early stage of the emergence of international law, none would question the legitimacy of the law of nations, since its basis, like that of municipal law, was viewed as the law of nature; on which was established the binding force of both the frameworks.3 Since the emergence of positivists in the early years of the 19th century, much theoretical debate has been pursued over the nature/characteristics of international law. And one of the most disputable questions concerning this controversy is “whether international law is true law.” Opinion has strongly been divided on this vexed question. The answer to this vexed question rotates around the divergent definitions of the word “law” given by the jurists. There have been two distinct schools of thought on this oft-debated question. These two schools have widely differed mainly because their approach to the definition of “law” has been different. Different views regarding the nature of international law are being discussed in this paper and finally a conclusion is drawn establishing the legitimateness of the International Law.
2) POSITIVISTS’ VIEWS
Several conspicuous positivist jurists like Hobbes, Bentham, and Pufendrof subscribe to the view that there is not any existence of positive international law appropriately endowed with a right lawful strength, and obligatory like the command of the sovereign. They deny the legal character of international law and are of the view that international law is not legally binding on States.4 As per 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. In his view, men need for their security “a common power to keep them in awe and to direct their action to the common benefit.5
2.1) Austin: International Law – “A Mere Positive Morality”
The leading English jurist, John Austin, is viewed as one of the foremost critics of international law and the chief protagonist of the view that international law is not a true law, but a code of rules of conduct of moral force only. He describes international law as “positive international morality” consisting of “opinion or sentiments current among nations generally.6
Austin’s view with respect to international law roots from his definition of law. As per him, the law “properly so-called” is the command of the sovereign attended by sanction in case of violation of the command. Austin called such “commands” as positive law which he regarded as a suitable matter of jurisprudence. A sovereign was defined as an individual who received the habitual obedience of the members of independent political society and who did not owe such obedience to anybody. Austin tried to adjudge international law against the municipal law and did not find international law of the same order as municipal law for the accompanying reasons:
- Absence of command of the sovereign: In municipal law, there is a determinate superior political authority that does not exist in international law. Austin points out that there is no sovereign political authority having legislative powers as in his time the rules of international law were almost exclusively customary.7
- Absence of sanction: There is a total absence of sovereign political authority over and above the States to enforce the rules of international law. There is an absence of such a sanction, which would ensure obedience to international 8
- Absence of Arbiter: There are three parties to a legal right: the person entitled, the person bound, and the arbiter. The very essence of law is the presence of a determinate impartial third party that would interpret and enforce the In the case of international law, such a determinate impartial arbitrator is absent. Even in the case of the ICJ, the basis of the jurisdiction of the Court is the consent of the States. The ICJ cannot exercise jurisdiction if a State which is a party to a dispute has not given its consent.9
As there is no sovereign, no command, nor are the sanctions nor are the subordinates to obey, and hence naturally positivists held that “international law is not a law at all”. Positivists argued that there can be no international law since there is no international legislature to make it, no international executive to enforce it, and no effective judiciary to resolve disputes about it.10 Austin holds that the law obtaining between nations is not a positive law but only law set by general opinion and the duties which international law imposes are enforced by moral sanctions; by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected.11 Austin, therefore, concludes that international law is not true law but “positive international morality only, analogous to the rules binding a society. Austin categorized them as “laws improperly so-called.”
2.2) Holland: International Law – “Law Only by Courtesy”
Sir Holland, similar to Austin, likewise denies international law the legitimate character and considers it the “vanishing point of jurisprudence”. He saw that rules of international law “are deliberately, however routinely, saw by each State in its dealings with the rest.”12 Such rules can be known as the law “only by courtesy”. It isn’t upheld by the authority of a State. In international issues, both parties are judges of their own cause, there is no arbiter over the parties. It comes up short on any mediator of contested inquiries spare popular feeling, past or more the disputant parties themselves. Without an arbiter, the law is an inconsistency in wording. The rules of international law are, truly, close to the ethical code for countries. The submission lays just on courtesy. They are suppositions or feelings regarded by the country States. It is the nonattendance of a sovereign law-production body and furthermore the absence of machinery for implementing the rules that drove Holland to portray worldwide law as a “law by analogy”. Since assent and courtesy alone is the premise of international law, Holland states international law is no law at all and it is nevertheless a vanishing point of jurisprudence.
2.3) Criticism of Austin’s and Holland’s View
Austin’s definition of law commonly known as “Command theory” has been vehemently criticized by the jurists belonging to sociological, historical, and realist schools on different grounds. The criticism of Austin’s and Holland’s views are as follows:
- Disregarded the growth of law: Austin’s definition of law is limited, contracted, and Law is certainly not a straightforward framework; it is a creature and the consequence of natural development. Austin’s idea of law is deficient since it disregards custom by and large. Law exists as customary rules too. It has been demonstrated that in numerous communities without formal authoritative position, an arrangement of law was in power and being watched and that such law didn’t vary in its binding activity from the law of any State with genuine administrative position. On the off chance that we acknowledge this methodology of the Historical school, at that point global law is a law, as being closely resembling standard law as opposed to legal or case law.
- International law is no more exclusively consisting of customary rules: During Austin’s time, international law existed as standard principles and global treaties were obscure, and in this way, he regarded global law as a bunch of moral rules only. In the current century, an incredible mass of worldwide enactment has appeared because of law-making treaties and conventions and the extent of customary rules of international law has correspondingly lessened. States which partake in the settlement making cycle might be called ‘international legislature’ and the subsequent law-production treaty might be named as ‘international legislation’. Regardless of whether there is no determinate sovereign administrative expert in the worldwide field, the method for planning the guidelines of ‘international legislation’ utilizing international conferences or through existing international organs is essentially as settled, if not as proficient, as any State authoritative methodology.13
- States consider themselves bound by international law: The binding power of modem international law isn’t questioned in any quarter. The genuine establishment of the authority of international law lives in the way that the States making up the international society remember it as authoritative upon them, and as a framework that ipso facto ties them as individuals from that society, regardless of their individual will.14 It isn’t consent, accordingly, that makes the commitment, however it might be its event. Consent could not, in itself create obligations unless there were already in existence a rule of law according to which consent had just that In other words, it is because international law already makes consent a source of obligation that obligations can arise from consent.15 Thus, there is a customary rule of international law and the consent of the States to a rule that makes that rule binding upon them.
- International law is not devoid of sanction: As indicated by Austin, ‘sanction’ is a fundamental component of law and the most genuine allegation against international law is that the international community doesn’t have accessible to it a perpetual coordinated power for tying down compliance to the This contention surmises just one type of assent, i.e. sanction. In any case, present day statute has opposed that force is the sanction behind the law. Prof. Hart believed that Austinian idea of law “obviously approximates nearer to punitive resolutions instituted by the lawmaking body of an advanced State than to some other assortment of law.” It isn’t right to state that laws are watched on account of the dread of sanctions behind them. Impulse alone isn’t the authorization behind the law. It is implemented by the thought of equity as much as of power. General acquiescence to the law and at any phase of mankind’s set of experiences, be it worldwide law or civil law, radiates from the inward ethical quality just as famous confidence in its definitive utility as a lot to a person regarding the general public as a whole.
Present day international law, notwithstanding, has sanctions. A Member of the UN against which preventive or implementation move has been made by the Security Council might be suspended from the activity of the rights and benefits of enrollment by the General Assembly upon the suggestion of the Security Council. An individual from the UN which has perseveringly abused the standards contained in the Charter might be removed from the Organization by the General endless supply of the Security Council.16 The UN can perform ‘peacekeeping ‘ and ‘ peacemaking ‘ tasks. The authorization of present-day worldwide law lies in the peacemaking exercises of the UN. In the event that the Security Council decides the presence of any danger to the harmony, break of the harmony, or demonstration of animosity, it might utilize measures not including the utilization of furnished power to authorize global harmony. In the event that the Security Council consider that measures not including furnished power would be insufficient or have demonstrated lacking, it might utilize equipped power by making such move by is an air, ocean, or land powers as might be important to keep up or reestablish worldwide that harmony and security.
- International law does not lack an arbiter of disputed questions: Given the developed and changed character of international law today, it is incorrect to say that the international legal system is without a court to decide international disputes. The establishment of PCIJ under the ‘League of Nations’, has rightly been reckoned as a landmark for the development of international law because through it international legal system was provided with a judicial organ to resolve international disputes through judicial decision. The greatest proof of its utility and importance is the fact that its successor, the ICJ, established under the UN Charter is based on the Statute of the PCIJ. Although the decisions of the ICJ are not equivalent to the municipal courts, nevertheless, the decisions of the ICJ possess binding force and can be enforced under certain circumstances. They are binding upon the parties to dispute and only in respect of that 17 Article 94 of the UN Charter provides that each member of the UN undertakes to comply with the decision of the ICJ in any case to which it is a party. And if any party to a case fails to perform the obligations incumbent upon it under judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.18 Thus, the international legal system is not only provided with a judicial organ to resolve international disputes but its decisions are binding and can be enforced under the conditions and circumstances as stated above. The ICJ also exercises compulsory jurisdiction on a large number of international disputes. Moreover, leaving apart a few exceptions, decisions of the court have been respected and implemented.
3) MODERN JURISTS’ VIEWS
The perception that international law isn’t the law was made by legal advisers who were prepared and prepped under municipal law and who looked for in international law every one of those things which they had been seeing and were acclimated of seeing in municipal law. They were under a paradox that there could be no arrangement of law and statute other than municipal law and jurisprudence. They neglected to understand that while State law is basically a unified framework, international law works in a decentralized framework. Also, whenever it is conceded that municipal law is an incorporated framework while international law works in a decentralized framework, it becomes evident that the examination of the two frameworks isn’t appropriate. The examination is troubled and legitimate in light of the fact that municipal law and international law are diverse for they work under an alternate situation. Global law is as acceptable and solid as it tends to be under the framework and conditions it works. Its authorizations are as powerful and strong as they can be under the decentralized frameworks wherein they work.
Present day legal scholars currently buy in to the view that international law is the real law. As indicated by Sir Pollock, the main fundamental condition for the presence of law are the presence of a political network, and the acknowledgment by its individuals from settled principles authoritative upon them in that limit, international law appears overall to fulfill these conditions.19 Pollock’s view mirrors the by and large held perspective on most legal scholars of today. Kelson guaranteed that global law was a law in its own right. Brierly communicated his perspectives on the presence of international law in the accompanying words: “the presence of some sort of worldwide law is basically one of the inescapable outcomes of this conjunction in the realm of majority of States likewise essentially carried into relations with each other. The best proof for the presence of International Law is that each real State perceives that it does exist and that it is itself under commitment to watch it. States may frequently disregard International Law, similarly as people regularly abuse municipal law; yet close to people do States protect their infringement by asserting that they are exempt from the rules that everyone else follows.”20
Prof. Hart has seen in this setting that obviously in the act of States certain rules are routinely regarded even at the expense of specific penances, claims are defined by reference to them, breaches of the principles open the guilty party to genuine analysis and are held to legitimize claims for pay. There are altogether components needed to help the components that there exist among States rules forcing commitments upon them. Worldwide law is made and is regarded to be legitimately restricting definitive public and global leaders since they comprehend that by and large settled upon rules and standards of activity serve the basic capacity of giving premise to the methodical administration of worldwide relations. It is both basically badly arranged and furthermore in opposition to the best juristic idea to deny its legitimate character.
3.1) Oppenheim: International Law Is True Law
As per Oppenheim, “law is a body of rules for human direct inside a community which, by the basic assent of this community, will be authorized by an outer force.” This definition proposes for the presence of law initial, a community, also, a body of rules for human lead inside that community, and thirdly, the basic assent of that community for the implementation of those rules by an outside force. The three necessities of this definition are fulfilled by global law to a more noteworthy or lesser degree. Oppenheim views global law as a law due to the accompanying two reasons:
- International law is continually perceived as law practically speaking. Governments of various States feel that they are lawfully just as ethically bound to follow
- While breaking it, States never deny its lawful presence and attempt to decipher global law as legitimizing their lead and certify the coupling idea of the standards of worldwide law. This confirmation is critical for it loans to the quality of the law and the legal
3.2) Starke: International Law Is Real Law
Prof. Starke has criticized the Austinian concept of law and considers international law as law proper. He put forth the following arguments:
- Contemporary historical jurisprudence set up that in various social orders, a plan of law existed and was being followed in spite of the way that those social orders required formal administrative position. Such law didn’t contrast in its coupling activity from the law of any State with genuine administrative position to outline them.
- Austin’s perspectives on International law, may have been right in his time, yet they are false in the current situation. Customary rules of International law are lessening and are being supplanted by law making treaties and conventions. International Conventions on different subjects have become global enactments, so it can’t be said that there is no enactment under the worldwide
- The legitimate machinery answerable for the upkeep of worldwide intercourse between States, don’t think about international law as only an ethical
- The United Nations has been set up and depends on the genuine legitimateness of international
3.3) Other Jurists
Oppenheim’s and Starke’s view is endorsed by modern jurists like Hall and Lawrence, who maintain that international law is constantly treated and implemented as law. The following are the principal contentions of present day jurists who consider international law as law:
- The term law can’t be restricted to rules of direct enacted by the sovereign authority. Sir Henry Maine, the chief exponent of the Historical School of jurisprudence, firmly established that in nascent society there wasn’t any sovereign political power however there were laws to tie the members of the societies in their
- The Austinian idea of law neglects to represent the customary rules of International law. If one accepts the Austinian definition of law, the common law of England will miss its lawful
- Customary rules of worldwide law are reducing and are being supplanted by law making treaties and conventions. Today heft of International law contains of rules set by various law- making treaties and these are obligatory despite the fact that they do exude from a sovereign political authority. In the last many years quite a large mass of ‘international legislation’ has appeared because of various international conventions, law-making treat, and the Charter of the UNO and the statutory Constitutions of various organs of the Thus, it is not true that there is no legislative organ comparable to the law-making bodies in States.
- While dealing with an international issue/question, States don’t depend upon moral contentions yet depend upon treaties, precedents, and opinions of experts. Legal luminaries are usually nominated either as delegates or as representatives to the various international conventions, conferences, or at the sessions of the UN General
- In practice, States don’t reject the presence of international law. However, they decipher international law to substantiate their conduct in their international intercourse. Whenever a country is faced with a situation, it makes vigorous efforts by justifying its action following the rules of international law, or to wriggle out of the obligation by statements such as ‘the matter is purely internal’, or that the U.N. has no jurisdiction over the matter and so on. Thus though a nation recognizes its obligations under International law, yet it would find ways and means to wriggle out of a particular
- Many States (USA, UK, France, Germany) have assimilated international law as a portion in their Constitutions. The US constitution lays down that treaties are the ultimate law of the land. In the case of Paquete Havana (1900), Justice Gray of the USA Supreme Court observed “international law is part of our law, and must be ascertained and administered by the Courts of Justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their ” In India, international customary law is deliberated as part of the law of the land. In Britain also, customary international law was regarded consequently to be portion of the common law as per the ‘Blackstonian’ doctrine, which is now applicable with certain qualifications and exceptions.
- International conventions and conferences additionally treat international law as true law in the actual sense of the
- The Statute of the ICJ provides that the ICJ will resolve the disputes defer to to it in agreement with the rules of international law. The utilization of the expression “international law” in the U.N. Charter, the Statute of the ICJ, and the Constitution of other international organizations suggests that International law is a law in the proper
- The decisions of the ICJ are obligatory upon the parties to a dispute and just in regard of that The powers and jurisdiction of ICJ are not equivalent to the Municipal Court but under certain conditions, its decision can be enforced. Article 94 of the U.N. Charter provides that every individual member of the U.N. embraces to obey the decision of the ICJ.21 It further lays down that if any party to a case flops to accomplish the compulsions binding upon it under a judgment delivered by the Court, the other party can resort to the Security Council, which may, if it considers essential, make commendations or resolve upon actions to be taken to provide conclusion to the judgment.22
- Those who contemplate international law a weaker law or as ‘positive morality’ makes frequent reference to specific situations where some States have defied or rejected or refused to follow the rules of international law. Modern jurists, though, argue that the fact that there are frequent violations of International law does not detract from its otherwise binding or enforceable quality, since the rules of positive law are violated by some people and if the latter situation does not reduce the positive law to something else, then how do the rules of International law become positive morality if a few unscrupulous nations choose to violate ” Frequent defilements of law show the feebleness of enforcement machinery and have not anything to do with the legitimacy of the rules. The legality of rules and enforcement of rules of law are two different things.
- So far as the sanction or coercive force behind the law concerned, it isn’t an indispensable component of law and regardless of whether sanction is observed as an important component of the law, there are sanctions in international On the off chance that rules are dishonored by a State, sanctions might be used against it not just by the aggrieved State itself as well as cooperatively by the United Nations Organization too. There are numerous self-help actions that the Victim State may embrace, for example, a treaty may be deferred or ended, or the properties of a felonious State may be frozen. The UN Security Council may approve financial sanctions. Force may be cast-off in definite conditions. Public view can also be an operative sanction. States want to be perceived to be obeying to international law: why else do they go to substantial efforts to validate their specific position in international law?
The views and opinions of the modern jurists on international law are more or less an elaboration of Professor Oppenheim’s definition. More and more jurists are rallying around Oppenheim’s views and hold that international law is actually a law and its rules are lawfully obligatory. A State can’t escape from subjugation to international law, international law being the vital attendant of Statehood. The modem origination of a State is itself the formation of international law and it is by the ordinances of international law that the rights and obligations of a State are characterized. The part of correspondence in international law recognition ought to not be disparaged. It is to a State’s advantage to regard, for instance, the territorial sovereignty of different States as they thusly will regard its territorial sovereignty. International law has established in custom and in the utility or convenience of submission. The extraordinary dominant part of the principles of international law are commonly seen by all countries without real impulse, for it is by and large in light of a legitimate concern for all countries worried to respect their commitment under international law.
The majority of the discussion about the lawful character of international laws is because of the inclination of the legal scholars to contrast it with municipal law. Be that as it may, the global general set of laws is inherently unique in relation to municipal law. In contrast to municipal law, international law works in an absolutely decentralized framework. The vital members of the international legal system are States which are similarly sovereign. The international network is made not out of a homogenous gathering of States, yet rather a heterogeneous gathering a portion of approximately 200 or more States, which vary strategically, financially, socially, and philosophically. Because of this curious explanation, international law will undoubtedly be particular from municipal law. States need to exist together. International law was considered and resulting from such a need, and consequently is intended to advance worldwide harmony and harmonization. A framework that looked to describe one State as “liable” and one as “blameless” would not encourage the acknowledgment of global harmony. International law must be mollifying instead of a foe. It must be perceived and acknowledged in the particular framework under which it works. It is as acceptable and successful as it tends to be considering the present situation and exceptional framework under which it works.
International law is a right law is clear regardless of whether Austin’s definition is acknowledged. Austin viewed International law as a ‘positive morality’ in the nineteenth century, when the international community needed enactment, a court, endorsing forces, and enforcement machinery. What’s more, in view of all these in the event that he reasoned that International law is certainly not a real law, maybe he was not off-base. However, considerable advancement has occurred since the definition was given. As of now, international legislation has come into existence because of multinational treaties and conventions.23 These incorporate the acknowledgment that specific standards have the personality of jus cogens, which lessens the territory for the activity of simply consensual principles, and builds up that inside the overall assemblage of rules of the International law there exist prevalent lawful rules, with which rules of a lower order must be viable. The act of States proposes that they see themselves as limited by such rules. The presence of international legislation, a court, endorsing authority, and the implementation machinery are the improvements of the current century. In the light of these turns of events, maybe one would not stop for a second to call international law as a true law regardless of whether Austin’s definition of law is acknowledged.
As of now, the world is, truly, viewed as a global community, and it is hard to perceive how any community of countries can exist, spare dependent on the law ubi societas, ibi jus. A bunch of rules as custom and treaties exist for managing the direct of the individuals from that community. Individuals from the community perceive and watch these rules and assert that there is a bunch of rules for managing their behaviour. They are practiced in the foreign offices, national courts, and other administrative organs of States just as in international organisations, for example, the United Nations. They acknowledge that they are lawfully limited by the rules of International law. Further, States don’t guarantee that they are exempt from the rules that everyone else follows or that International law doesn’t tie them. Had the rules of international law not for the most part accepted by the States, there would have been disarray in the world community.
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23Supra note 4.