Essay on the Legal Nature of International

Law

By Suhana Dhawan

It is a controversial issue whether the principles and rules governing the relations between States

are merely a body of rules of international morality, without legal force, or whether International

Law is in reality law, a branch of Jurisprudence proper.

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.

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 not any existence in the sense in which the term law is usually understood.

It depends generally on the prejudices of the writers of the textbooks. 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.” Law

is not always the command of a determinate human superior.

There are various other sources of law /too. No .one can ignore the influence of customs and the

common law. Common law does not emanate from the legislature. Nor do customs.

Moreover, law must adjust itself to the social needs of the community. International Law is the

result of the experience of ages, and its rules have been evolved and accepted as governing the

conduct of States in times of war and peace.

People do not obey laws merely for fear of punishment. Even in the presence of the coercive

authority of the State positive laws are disobeyed every day by scores of people. Violation of

laws does not mean that they lose their significance as laws. The sanction of all laws goes back

to public opinion.

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 which impresses

their practical utility and enjoins obedience. States are obviously ready for orderly behaviour and

anticipate orderly behaviour by their fellow States.

The society is never run by the law of jungle, nor even on what George Jellinek called “anarchic

law.” Men have a psychological preference for order over disorder, especially when the disorder

involves war.

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 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.

Finally, there are courts in every country which try prize cases in accordance with the provisions

of International Law. Sir Henry Maine and others have shown that there have been systems of

law which were enforced independently of the State or its 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 principles of International Law, it may be added, have been built up by legal reasoning and

are applied in a legal manner. All civilised countries accept International Law as a part of their

Municipal Law and their legislatures do not make legislation opposed to the provision of

International Law.

Piracy, for example, is prohibited by International Law and no State will pass legislation

permitting piracy. Laws of no civilized States recognize slavery or permit its existence.

The Weimar Constitution of the German Republic made a significant departure when it enacted

that the rules of International Law, universally recognised, formed part of federal German law

and as such had obligatory force.

Similarly, the Estonian Constitution adopted the generally accepted precepts of International

Law as an inseparable part of her judicial order. So too, the Austrian Constitution.

It is, therefore, concluded that the principles of International Law are fundamentally the same as

those of the Municipal Law. The former, like the latter, grows and develops in response to the

spirit of each age and changing conditions of society.

Order is the essence of human life, but order is precarious and hollow until International Law is

assured. International Law may, thus, be defined as a body of those “rules of conduct which

reason deduces as consonant with justice from the nature of the society existing among

independent nations; with such definitions and modifications as may be established by general

consent.”

It is law proper and is not a mere collection of moral rules. Its doctrines, as Hall says, “have been

elaborated by a course of legal reasoning; in international controversies precedents are used in a

strictly legal manner, the opinions of writers are quoted and relied upon for the same purposes as

those for which the opinions of writers are invoked under a system of municipal law; the conduct

of States is attacked, defended and judged within the range of international law by reference to

legal considerations alone; and finally, it is recognised that there is an international morality

distinct from law, violation of which gives no formal ground of complaint, however odious the

action of the ill-doer may be.”

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.