Nature of International Law

There is a wide divide among the jurists regarding the nature of International law. There is one view that International law is not a true law. The jurists of this view think that International law is a code of rules of conduct of moral force only. Other Jurists think 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 individuals.

Austin’s View:

Let us understand the nature of International law on the basis of Austin’s imperative or command theory.

Austin’s Imperative or Command Theory of Law:

Imperative theory of law was proposed by British jurist Austin. According to Austin, positive law has three main features:

• it is a type of command,
• It is laid down by a political sovereign, and
• It is enforceable to sanction. Thus every law is a species of command and prescribes a course of conduct.

According to Austin the relationship of superior to inferior is due to the power which the superior enjoy over the inferior. i.e. the ability of the superior to punish the inferior for disobedience. A command is a wish/desire to another so that he/she shall do a particular thing or refrain from doing a particular thing. In case of non-compliance with command, he/she has to for evil consequences .the sanction behind the law is the evil which is to be influenced in the case of disobedience. He further emphasises that the law is law only if it is effective and it must be generally obeyed and every law should have a sanction of the physical force of the State. It means to call a particular body of rules as law, it should satisfy the three conditions given above.

According to this theory International Law is not a true Law. In support of their argument, they gave the following explanation:

• International Law is only opinion or sentiments current among nations.
• There being no agency for international legislation, hence International Law is not a command of sovereign or superior determinate authority.
• There is no adequate sanction behind it.
• There is no mechanism and agency to enforce International Law. Hence obligation to observe International Law reduces to a moral rules.
• The existence of the third party (determinate impartial arbitrator) which can interpret and enforce International Law is absent. The International Court of Justice cannot exercise jurisdiction if a State which is a party to a dispute has not given its consent.

Thus International Law is a body of rules governing the relation of sovereign states inter se. Hence Austin called International law as “positive international morality” similar to the rules binding club and society.

Criticism of Austin’s View:

• Austin has taken into consideration in his definition only that part of law which is enacted by sovereign legislative authority. He completely ignored the customary or unwritten laws. Thus the definition cannot be applied for Hindu, Mohammedan and the Canon law because these laws came into existence long before the state began to perform legislative functions.
• Austin’s theory says that laws are observed because of fear of sanctions behind them. Austin’s definition cannot be applied to a Modern democratic country whose machinery is employed for the result of the people. In a democratic country, the sanction behind the law is not the force of the state but the willingness of the people to obey the same.
• The Constitutional law of the country defines the power of various organs of the state. Nobody can be said to command himself.
• It is not applicable in International and Constitutional law. International law is not the command of any sovereign, yet it is considered to be law by all conserved and States themselves regard International Law as binding even when there is no sovereign.
• The main criticism of Salmond is that the theory disregards the moral or ethical elements of the law. The end of law is justice. Any definition of law without reference to justice is inadequate.

Thus Austin’s definition of law is inadequate and his inference that International law is not true law is in correct.

Oppenheim’s View:

Let us understand the nature of International law on the basis of Oppenheim’s definition.

According to Professor Oppenheim (Eighth Edition of the book International law), “Law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by an external power. The main features of this definition are

• There must be a community
• There must be a body of rules for human conduct
• There must be a common consent of this community for an external power to enforce the rules

This definition is not using words sovereign or legislature. Thus it means that it is not necessary that rules should be enacted through law-making authority. Similarly existence of law administering court within the community concerned is not necessary.   

We can see that there is a community of nations in the world. There is interdependence of these nations on each other, which is the basis of formation of such community. There exist rules of conduct, based on customs of hundreds of years, International agreements and treaties. There is common consent of the community of nations for the enforcement of the rules for international conduct. Hence in the light of Oppenheim’s definion of law, International Law is a true law.

International Law is a Weak Law:

The rules of international law are not as effective as municipal law, hence International Law is weak law. Following are some reasons for such conclusion.

• International Law is a contradictory and vague mass of agreements and norms that offers few clear guidelines. Sometimes they are formulated in such a way as to give wide options to the States parties. They are not comparable in efficacy to State legislative machinery. Hans Morgenthau explains what frequently happens when negotiating international agreements: “In order to find a common basis on which all those different national interests can meet in harmony, rules of international law embodied in general treaties must often be vague and ambiguous, allowing all the signatories to read the recognition of their own national interests into the legal text agreed upon.”
• Even if we could specify the contents of international law, the absence of an effective legal system severely limits its impact. Nations rarely alter their behaviour to conform to international law. It is more likely that nations will twist international law so that it conforms to their behaviour.
• Domestic legal systems usually enjoy compulsory jurisdiction, whereas international legal bodies do not.  There is the International Court of Justice, but it does not have jurisdiction to decide the disputes of all the States since the Court acts with consent of the States only.
• Enforcement measures available under the system are not effective. If there is a dispute between two states and one of the state approaches the International court of Justice and wishes to summon the other state, then for that the other state has to accept jurisdiction of the Court for the dispute. Similarly, the Court has no power to enforce its decisions.
• During war, many times, rules of International Law are frequently violated.

Conclusion:

As per Austin’s definition International Law is not a true law but with Oppenheim’s concept it is a true law. Thus answer of the question whether International Law is a true law, depends on which definition of law we consider as a base. It should be noted that at Austin’s time international community lacked legislation, a court, sanctioning power and enforcement machinery. Hence his conclusion was that International Law is not a true law. But substantial development has taken place since the definition of law given by Austin. Many International Treaties are signed. There are organizations like United Nations. The Practice of civilized nations show that they are bound by these rules. There is International Court of Justice to solve international level disputes or disputes between states. If party to the dispute fails to perform its obligation, the Security Council of the United Nations has power to enforce the decision of the Court. In the light of these changes we can say that International Law is a true law. But the rules of international law are not as effective as municipal law, hence International Law is weak law.