International Law : Termed as True law or not?

Law is the element of the society which helps to develop a Framework within which rights and duties can be established. The world today requires a method were interstate relations can be conducted and international law fills this gap. The United Nations developed this body of International law for the purpose of promoting International peace and security. Countries come together to make binding rules that they believe will benefit for their citizens. International kaw promote peace, justice, common interest and trade. States work together to strengthen International law because it play an important role in society. International law is directly and strongly influenced by the writings of Jurists and publicist, instructions to diplomatic agents, important conventions even when they are not ratified and arbitral awards.

DEFINITION- According to Oppenhiem International law is a “Law of nations or it’s is the name for the body of customary law and conventional rules which are considered to be binding by civilised states in their intercourse with each other.”
Thus international law can be considered as treaties, set of rules and agreement between the countries that are binding between them. International law governs now nations mist interacts with each other nations. It is extremely useful in regulations of issue in jurisdiction which arises when people trade among different states. The entire body of rights and responsibilities existing between nations including treaties and customs.

International law is based on two principles:-
These set of rules do not form of legal statute but mutually governs the relationship between two nations.

These refer to those treaties and agreements that are accepted by both countries mutually.

Note – International law provides effective means through which peaceful settlement of disputes can be done. It is mainly concerned with the right, duties and the interest of the states.

1.) Public International Law :-

  • Public international law is regulated by the treaties and globally accepted norms and customs which are included as state practice and opinion of jurist.
  • It regulates the relationship between those nations and people’s that are prone to be affected by a particular law as they are bound by the legal codes and rules.

2.) Private International Law :-

  • It regulates private conflicts between individual rather than the states.
  • It seeks to dissolve in the domestic municipal body which involves an issue revolving beyond it’s domestic jurisdiction.

1.) Treaties:

  • The concept of treaty is based on pacta sunt servanda which is a customary law principle which means promises must kept.
  • In a treaty countries create their terms of rights and obligations out of their violation. Thus it is very similar to a contract.
  • Therefore treaty is a written agreement between two or more states which lays down the manner in which every state would act while doing dealings with other participating states.
  • Some times in place of treaties other terms such as charter, declaration, convention and statues are often used.
  • However there is a slight difference in meaning of these Terminologies.

2.) Custom:

  • Custom is one of the primary source of International law. In international law it is considered to be of particular importance because of its decentralized nature.
  • There are two essential to constitute custom. The first being the state practise itself it is not necessary that the act of a state necessary needs to be positive in nature.
  • State practise should be extensive, uniform and consistent and prevail for at least such a period of time as would establish it is a recognized act of states.
  • The second essential is opinio juris, which means the psychological belief of a state that it’s act is creating a legally obligatory position for itself. But it should be noticed that not every activities of s state would necessarily create binding rules of customary law.
  • For instance, if a particular pattern is used by the states on a particular issue in the general Assembly it is reflective of the maxim opinio juris.

• As in international law there is no coercive body for legislating laws or any court that has power to set precedent thus it is relatively underdeveloped as compared to municipal. Law.
• Article 38 of the statute of the International court of justice provides for “General Principal of law recognized by civilised nations” as a source of law.
• In the charzow factory case the general principle of International law, it is a duty of a state to make reparation upon the breach of international law obligation was recognised by the parliament court of International justice.
• In the corfu channel case while referring to circumstances evidence the international court of Justice pointed out that ‘in all all system of law indirect evidence is admitted and it’s use is recognized by International decisions’.
• The principal of Res judicate is too recognized by international law.

• John Austin, a leading English writer on jurisprudence supports that International law is not a law as per him.
• According to him international law is a code of moral force and rules conduct only. In his opinion International law does not have any sanction any behind it and it doesn’t emanate from a law giving authority. He describe International law as the one consisting of positive international morality and opinion or sentiment which are followed by the nation’s as per their own wish.
• Hobbes and pufendorff are also of the view that international Law is not a true law as the law is not truly invested with true legal force and it is not backed by the command of a superior.
• Holland is of the view that international law is extremely different from ordinary law as it is not supported by the states authority.
• As per him the international law lacks in sanctions so it can not be kept in a category of true law.

• Hall and Lawrence considered international law as a true law. According to them international law is derived from custom and precedent which are a source of law and it is habitually treated a certain kind of positive law.
• Sir Frederick Pollock observed that for International law to be binding upon the members the only essential conditions are the existence of political community and the recognition by its members of settled binding upon them in that capacity.
• International law wholly satisfied the above conditions mentioned by Sir Frederick Pollock and Hall and Lawrence.

International law is a set of rules which are necessary in order to regulate the behaviour of nations state towards each other so as to ensure peace and welfare of the international community. It helps in resolving the disputes among states. International law may influence internal laws too and may become a part of domestic law. It is not necessary that international law to ne codified into an agreement. There have been a lot of development in modern international law and the international court of justice is considered as the principal body responsible for tenants of International law.

Aishwarya Says:

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