The States, like the individuals, exist together in the family of nations or States of the world. Those laws and rules which regulate the relations and dealings among States and nations of the world are called international laws. Without them there would be wars, clashes and confusion in the world.
International law has been variously defined by different writers Prof. Brierly, defines international law as “the body of rules which civilised States observe in their dealings with each other, these rules being enforced by each particular State according to its own moral standard or convenience”. Prof. Fenwick says: “International law may be defined in the broad terms as the body of general principles and specific rules which are binding upon the members of the international community in their mutual relations”.
According to Hughes, International law is the body of principles and rules which civilised States consider as binding upon them in their mutual relations. It rests upon the consent of sovereign States. “International law is the aggregate of the rules determining and giving effect to the rights and duties of independent States” According to Prof. Holland, International law “differs from ordinary law in being unsupported by the authority of a State. It differs from ordinary morality in being a rule for States and not for individuals. The Law of Nations is but private law ‘writ large’. It is the application to political societies of those legal ideas which were originally applied to the relations of individuals.
We may define International law as a general body of rules and principles which the States observe in their mutual relations and dealings and in the conduct of international affairs.
Is International Law a law?
There is a controversy among jurists and political writers whether international law can be regarded as a law in the real sense of the term or not. Broadly speaking, there are two schools of thought: the analytical or positivist school,-which denies that it is a law at all, and the historical school which declares it to be a law. We shall describe here arguments of both schools of thought:
International Law is not law proper
Analytical or Austinian jurists define law as a command of the sovereign or the order of the State. International law is a rule which a State is expected to observe in its dealings with other States. But every State is independent and sovereign. It is not bound to observe the rules and restraints of the international law, if it is to remain sovereign and independent. Hence the international rules and restraints are not legally binding on the sovereign States. They are not laws but mere rules of convenience or moral principles. The Analytical jurists advance the following arguments against the view that International law is a law:
There is no determinate authority to make international law. There is no world-body to pass international laws, if there is one, the States would cease to exist as sovereign bodies. In that case there would be a World State with its own national or municipal law’s as the international laws would then be justly called.
There is no legal sanction behind international law. International laws are no doubt observed by sovereign States, but only of their own convenience, interests and advantages, and not because they-are binding on them.
There is no court to interpret international law. Sometimes the States do refer their disputes to international tribunals for decision. Moreover it is not binding upon them to do so. It is also not obligatory for them to accept the decisions of such courts nor do such courts have any authority to enforce their decision.
International law is only international courtesy. The critics of international law declare that it is not a law in the real sense, but that it is half law and half morality. It stands midway between law and morality. Its rules are self-imposed by the State. If a State so likes, it can act against the international law and break it with impunity. It observes them only out of courtesy or-good-will towards the rest of the world.
In short, the critics of the International Law declare that it lacks the whole paraphernalia required for a law of the State. It has no international lawmaker or legislature which has passed it or commanded it. It has no courts to interpret it; no sanction or force to compel its violators to obey it; no police to execute it; no army to protect it. The British Lord Chancellor, Lord Salisbury, addressing the House of Lords said, “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”. It is, therefore, regarded as the vanishing point of-jurisprudence.
International law is law proper
In present times, however, it is increasingly asserted by writers and jurists that international law has definitely the character of law. They disagree with the Austinian jurists on the meanings of such terms as ’law”, ‘sanction’, ‘sovereignty1, etc. They advance the following arguments in support of their view that it is a law proper:
The concept of absolute sovereignty of the State is an absurd and fallacious fiction. No State is absolutely sovereign in its internal and external relations. The sovereignty of the State does not mean that the State cannot mutually agree to follow certain rules of conduct for common safety and well-being. Otherwise, there would be constant international anarchy and conflicts. In modem times it is impossible for a State to live in isolation. Instead of that, they are impelled to come into contact with one another for reasons of trade and industry, science and arts, peace and war. Owing to these reasons, the sovereign States impose restraints and restrictions upon themselves for their own well-being, just as the individuals living in the State impose on themselves the restraints of the laws.
Law is a growth and not a command. It is further argued that law is not the command of a determinate human superior. It has various other sources, such as custom, religion, opinions of jurists, etc. Many of the municipal or national laws have originated from these sources. If it is true of the municipal laws, it is still more true of international law, which cannot be denied as a law proper simply because it is not laid down as a command by a determinate international authority.
International law has sanction behind it, like that of the municipal law. The laws of the State are obeyed because there is a sanction behind them, i.e., punishment. But the real sanction is not fear of the force of the State but public opinion and habit. International law has also a similar sanction, viz., the ‘world public opinion. It is this world opinion that compels a State to obey and respect international law. For instance, it was the world opinion which compelled the English and French aggressors to withdraw from Egyptian soil when they attacked Egypt over Suez Issue in 1956.
To say that international law is not law because it is sometimes violated, is not a sound argument. It is a matter of everyday observation that the municipal laws are often violated. Many persons commit murders, thefts and countless other crimes. Yet the laws of the State do not cease to be laws for this reason. Why should it then be asserted that international laws be first absolutely respected by the States if they are to become laws at all? Like the municipal laws,’ international laws are respected by many States and violated by a few. But still the rules and principal of the international laws are respected by all the States in one form or another.
To say that there are no regular courts to decide international disputes and to interpret international law is also wrong. The International Court of Justice, set up by the U.N.O. at the Hague, and the Prize Courts in every country apply and interpret the rules of international law. 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”.
The principles of International Law have been built up by legal reasoning and are applied in a legal manner. Many countries have adopted many rules of international law in their municipal laws. Piracy is prohibited by international law, which now no State can permit by its laws.
International law is distinct from international morality as municipal law is distinct from morality. When Statesmen and leaders of the States deal with international affairs, they refer to the principles of the international law, to the writings of international jurists, but not to the rules of international morality.
Conclusion
In conclusion, it may be said 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”. Just as there can be no peace and order in a State without the national laws, so there can be no order and peace in the world without the international law. That is the reason why it exists: “order is precarious and hollow until international law is assured”. It is being realised that modem civilization will become impossible without the rules of international law. Indeed, the main problem facing humanity is to perfect these rules in such a way that the points of difference may be lessened and human life becomes safe and richer. Nevertheless, international law is not law in the sense of the ordinary law. Frederick Pollock has explained the nature of international law aptly thus: “International law is a body of customs and observances which are on the way to becoming law”. It is law in the making.