Is international law a proper law
1. Introduction:
International law is composed of its greater part of the principles and rules of conduct which states feel themselves bound to observe in their relation with each other. Two schools have been striving for supremacy over each other one school advocates that international law is not a law in the true sense and the other says that it is a law.
2. Definition of law:
Austin:
A rule of conduct imposed and enforced by a sovereign in the form of a command which obliges the subject to a course of conduct.
Salmond:
Law is the body of principles and rules which by its influence on human will serves as social cement and motivating force toward social progress. these principles are recognized and enforced by the state in the administration of justice.
Essential conditions for law:
Following are the essential conditions for law.
- (i) A body of rules.
- (ii) A community of people.
- (iii) A consent to enforce it.
- (iv) An enforcing agency.
3. Whether international law is a law in the true sense of the term:
There are two schools on this question one maintaining that international law is no law, other school saying that international law is a complete law. the schools are as under.
- (i) Positive school.
- (ii) Historical school.
I. Positive school:
Positive School is led by John Austin according to him international law is no law but rules of morality governing international relations between states. he says also that it is a code of rules of conduct of moral force.
Arguments by positive school:
The positive school presents the following arguments.
(i) No law giving authority:
International law did not emanate from a law giving authority.
(ii) No sanction:
There is a lack of sanctions for the enforcement of international law.
(iii) No executive authority:
There is no executive body that may enforce the decisions of the international court of justice which is so called court of this system.
(iv) Absence of legislative machinery:
There is absence of an effective legislative machinery in international law.
(v) No determinate political authority:
There is no determinate political authority that may compel the states to observe the rule of international law.
(vi) Vague and uncertain rules:
The rules of international law are vague and uncertain.
(vii) Limited scope:
it has a limited scope. must of the rules are in the form of treaties.
(viii) Limited jurisdiction:
It has limited jurisdiction. International Court of Justice has no compelling jurisdiction.
II. Historical school:
the second school is called the historical school. it is led by Oppenheim and Sarke who say that international law is law in the true sense because observance and not enforcement is an essential element of law. modern international writers hall and Lawrence also say that international law is a real law in the true sense. it is habitually treated and enforced as law. it is derived from customs treaties judicial decisions and juristic works.
Arguments by historical school:
The historical school presents the following argument:
(i) International conferences and conventions:
International law is treated as a law in true spirit by international conferences and conventions.
(ii) Acceptance by states:
States do not deny the existence of international law.
(iii) Recognition by the international court of justice:
The International Court of Justice recognizes international law. it has to decide the disputes submitted to it by international law.
(iv) Recognition by united nation:
International law is recognized by the United Nations. it is based on the legality of international law.
(v) Partial sanction force:
So as sanction in law is concerned international law does not completely lack it.
(vi) Practice of states in treating international law as their law:
In some countries, international law is treated as a part of their law. it is ascertained and administered by the courts of justice of the appropriate jurisdiction of the states.
(vii) Violation does mean the presence of law:
Every law is violated even state or municipal law is also violated. the violation does not mean that there is no law. although international law is frequently violated it does not mean that international law is not law.
(viii) Binding nature of the decision of the International Court of Justice:
The decisions of the International Court of Justice are binding upon the parties to a dispute. the decisions of the International Court of Justice can also be forced.
4. Suggestion for improvement of international law:
(i) Grant of compulsory powers to the International Court of Justice:
The international court should be given compulsory powers and jurisdiction over all international disputes between states.
(ii) Establishment of an effective international criminal court:
International crimes should be adjudicated by the international criminal court so for this purpose there must be an effective criminal court at the international level.
(iii) Proper codification of international law:
The codification is always an advantage of law international law should be properly codified.
(iv) Establishment of international police:
An international police system should be established to enforce a system to eradicate international crimes.
(v) A proper international investigation system should be promoted:
An international investigation system should be promoted.
(vi) Independent prosecution system:
An Independent prosecution system should be developed in modern techniques relating to international crimes.
(vii) Expansion of powers of international law commission:
The powers and role of the International Law Commission should be expanded.
(viii) Enhancement of legislative power of general assembly:
The legislative powers of the general assembly must be enhanced.
(ix) Encouragement of law-making treaties:
The law-making treaties should be encouraged for a better scope of international law.
(x) Application of the doctrine of judicial precedents:
The doctrine of judicial precedents should be applied in international law for a strong international system.
(xi) Development and encouragement of international brotherhood:
International brotherhood should be developed and encouraged.
5. Conclusion:
To conclude it can be said that international law is the body of rules and principles of action which are binding up civilized states in their relation with one other. although there are some drawbacks in the international system it is a proper law. the scope of international law has widened. it deals with an immense variety of matters.