Nature of International Law

Submitted by:
Shafaq Zooni
B.A.LL.B.(Hons.)
Semester IV(S.F.)
Roll no. 51

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Historically, international law has been disregarded by many of the world’s foremost
jurists and legal commentators. They have questioned the existence of any set of rules
governing inter-state relations, its entitlement to be called law and its effectiveness in
controlling states and other international actors in real life situations.

In the early years of the twenty-first century, this theoretical rejection of the
prescriptive quality of international law seemed to be borne out in practice as a
number of states, groups and individuals became engaged in internationally
‘unlawful’ action without even the remote possibility that their conduct could be
checked by the international legal system. Whatever the legal merits of the US-led
invasion of Iraq or the Israeli invasion of Lebanon, or the detention of terrorist
suspects without trial, or the unhindered resort to terrorism by groups based in
existing states (with or without the support of another state’s government), or the
rejection by some of international minimum standards for the protection of the
environment, the perception has been that international law is failing in one of its
primary purposes – the maintenance of an ordered community where the weak are
protected from arbitrary action by the strong. Some commentators have even
suggested that we are witnessing the demise of this subject as a legal discipline and
should now recognise it as having political and moral force, but not necessarily legal
content. It is not a perfect legal system, but neither is the national legal system of any
state. It was decided in West Rand Central Gold Mining Company v. Rex that no
principle of International Law was enforceable in British Courts until it had been
formally adopted into the body of the Municipal Law by an Act of Parliament.

The Analytical School of Jurists, founded by Bentham and Austin, deny to

International Law the status of law. They contend that law is a command issued by a
determinate human superior to an inferior and its disobedience is accompanied by
punishment. Law must also be precise and definite with regard to its origin and
obligation. But in the community of nations, comprising sovereign States, there is no
determinate superior political authority to issue commands and enforce sanctions and
penalties. If it be presumed that there is one to command and others to obey, it
establishes their subordinate status and with that they disappear as sovereign States.
Nor are there courts with power to enforce International Law or impose penalties for
disobedience.

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States, of course, refer matters of dispute arising between them to tribunals for
arbitration, but the decisions of such tribunals are not binding on the sovereign States.
It is for them to accept or reject such decisions and there is no authority competent
and powerful to enforce and punish the recalcitrant States. The sanction of
International Law is, therefore, customary. The law which rests on custom, consent
and agreement cannot be law. It is only a sense of moral obligation that makes it
binding and at the best it can be described as international morality. Lord Salisbury,
while addressing the House of Lords, once said, “I think, my Lords, we are misled in
this matter by the facility with which we use the phrase International Law.”

International Law has no existence in the sense in which the term law is usually
understood. It can be enforced by no tribunal, and, therefore, to apply to it the phrase
Law is to some extent misleading. Similarly, Lord Coleridge observed in The Queen
v. Keyn (1876): “Strictly speaking, international law is an inexact expression, and it is
apt to mislead if its inexactness is not kept in mind. Law implies a law-giver, and a
tribunal capable of enforcing it and coercing its transgressors. But there is no common
law-giver to sovereign states, and no tribunal has the power to bind them by decree or
coerce them if they transgress.”

But modern writers accept International Law as law in the real sense of the term. They
regard Austin’s theory of sovereignty in its international relations as not only a legal
fiction but a baneful and dangerous dogma which ought to be abandoned, and that
notion should be expunged from the literature of international law. It is asserted that
sovereignty of the State does not imply that the States cannot mutually agree to follow
certain rules of conduct for common safely and well-being.

Chief Justice Marshall, of the United States Supreme Court, recognized the absolute
and exclusive authority of the State over all persons and things within its territory. But
he admitted that considerations of mutual benefit and advantage in practice made
necessary a relaxation of that absolute and complete jurisdiction which sovereignty is
said to confer. Thus, law is not always the command of a determinate human superior.

The sanction of International Law, too, has the same basis as the sanction of ordinary
law. It is the force of the minds which made these rules and it is the force of the minds

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which impresses their practical utility and enjoins obedience. States are obviously
ready for orderly behaviour and anticipate orderly behaviour by their fellow States.

As regards the sanction behind International Law, it is now conceded by all that a
world public opinion is rapidly growing to provide adequate sanctions. The United
Nations crystallises world public opinion and it has means at its disposal to coerce a
delinquent State by applying either political or economic sanctions, as it did in raising
an army to fight against the aggression of China in Korea and in a number of other
countries too. Sometimes individual States themselves apply these sanctions, as did
Britain and France against Italy in 1935. The success of the United Nations in raising
the Emergency Force in Egypt and the immediate withdrawal of British, French and
Israeli forces from Egyptian territory, once again, demonstrated that the only support
and sanction necessary for the effective operation of International Law is a broad-
based public opinion. Like individuals, States wish to enjoy the prestige of a good
reputation. On material grounds, though not on these alone, they value the friendship
of their fellows; above all, they realise that grossly illegal conduct may inflame
foreign opinion and lead to the vicarious enforcement of their obligations.

Even if it is admitted that absence of authority to enforce its orders is the weakest
point in the nature of International Law, and States have very often flouted its
prescriptions by their willful actions, still, absence of sufficient authority to enforce
the provisions of International Law or its deliberate violation by some States does not
mean that it ceases to be law real and proper. As a matter of fact, even the ordinary
statute law is obeyed chiefly because of social sanctions operating through public
opinion and, where these are absent or weak, is honoured more in the breach rather
than in the observance.

It is also untrue to say that there are no courts to decide international disputes and
apply International Law. Arbitration or the settlement of differences between
independent States has assumed considerable proportions since the establishment of
the now-defunct League of Nations.

The United Nations makes provision for the International Court of Justice. The
purposes of the United Nations Charter include the adjustment or settlement of
international disputes “in conformity with the principles of justice and international

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law.” Legal forms are used in the International Court of Justice and in arbitral
procedure, authorities and precedents are quoted as in courts of law.

World opinion is now veering round the point that the individual may be given an
international status by accepting him as a subject of International Law and
consequently makes his rights enforceable against his own government. The United
Nations Declaration of Human Rights may be considered the harbinger of such a
move and if it succeeds, at no distant date an international bill of rights will take
concrete shape. Lauterpacht says in this regard, “As a result of Charter of United
Nations as well as other changes in International Law the individual has acquired a
status and a stature which has transformed him from an object of international
compassion into a subject of international rights.”

This apart, the Nuremberg trial and punishment of Germans guilty of international
crimes has given a new dimension to the nature and scope of International Law.
International criminal law has now emerged as an effective instrument to punish those
guilty of heinous international crimes.

The only baffling point in this context is that although all civilised States have
accepted rules of International Law as binding upon them, yet they are enforced by
every State according to its own moral standard or convenience. And the moral
standard of every State is influenced by the economic and political tendencies of the
world as a whole and the expediency of the State concerned.

Some States make a bid for world power and they enforce the principles of
International Law according to their own convenience. If all the States were to pledge
themselves scrupulously to the accepted principles of International Law and adhere to
its ideals, much international hostility can be avoided and the controversy whether
International Law is a law or not becomes futile.

However, whatever we might hope for in the future for international law it is crucial
to remember that at the very heart of the system lies a set of rules designed to regulate
states’ conduct with each other, and it is this central fact that makes precise analogies
with national law at present misleading and inappropriate.