UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.TECH (CSE) + LLB (CYBER LAWS) – IX SEM

ACADEMIC YEAR: 20167-18 SESSION: AUGUST- DECEMBER

PROJECT
FOR
PUBLIC INTERNATIONAL LAW

TOPIC: IS INTERNATIONAL LAW A TRUE LAW

Submitted by:
Ashutosh Verma 500030428 R120213009
Shubham Choradia 500029190 R120213024
Aashi Gupta 500031236 R120213030
 TABLE OF CONTENTS

I Introduction…………………………………................................ 1

II Nature of International Law……………………………………... 1

A Austin’s View…………………………………………………… 1

B Oppenheim’s View……………………………………………… 2

C Starke’s View……………………………………………………. 3

III Analysis………………………………………………………….. 4

IV International Law – A Weak Law……………………………….. 5

V Conclusion………………………………………………………. 7
 I. INTRODUCTION
International law is the law which deals with the conduct of states and of international
organization and with their relation between themselves, as well as with some of their relations
with persons, whether natural or judicial.1 Initially International Law was introduced just to
govern the relation between different states. Modern International Law began with the birth of
nation-states in the Medieval Period where the governing principles were derived from natural
law.

At present world is regarded as an international community. A set of rules in the form of

custom and treaties exist for regulating the conduct of the members. Members recognize and
observe these rules and accept that there is a set of rules regulating their conduct. These rules
are practiced in national courts and other governmental organs of the state, foreign offices as
well as in international organization such as the United Nations. They accept that they are
legally bound by the rules of International Law. There are two major reasons on which it is
debated that international law is not a law: first, there is no basic legislative, executive or
judicial institutions; second, there is no international community whose values and interest are
sufficiently shared to allow us to speak of one international legal system.2

II. NATURE OF INTERNATIONAL LAW

The most controversial and debated issue on which the opinions of the jurist are divided
since the beginning of the concept of ‘law of nation’ is regarding the status of international
law. Many jurist has different opinion and understanding of international law.

A. Austin’s View
British jurist John Austin was of the view that international law is not law because it is not
legally binding on States. According to Austin, law consists of commands originating from a
sovereign and backed up by the threats of sanctions if disobeyed. In this regard, according to
him International Law is not because it does not come from the command of sovereign. This
theory is generally disregarded as nations sees International Law not as commands but as
principles. For a rule to be called as a “proper law”, it must be a command enacted by a
sovereign legislative authority and that command must be enforced by sovereign authority.

1
DR. H. O. AGARWAL, INTERNATIONAL LAW & HUMAN RIGHTS 1 (Central Law Publications, 2014).
2
Stephen C. McCaffrey .Understanding the International Law 5 (Lexis Nexis, 2006, available at:
https://books.google.co.in/books?id=3tvPz3z0rxEC&printsec=frontcover#v=onepage&q&f=false)

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 The laws which are created either by analogy, i.e., rule of conduct imposed by the general
opinion of indeterminate body, or by metaphor are not proper law as they do not embrace the
ideology of Austin and henceforth, they are regarded as improper law.3

Austin was of the view that International Law cannot be regarded as ‘true law’ because it
consist of opinions or sentiments lying among nations generally. In has neither sovereign
legislative authority to enact law nor there is adequate sanction behind it. Also, there is no
authority which can enforce these laws as a body of rules. He chose to call International Law
as ‘positive international morality’ since it lacked common and determinate sovereign issuing
orders backed by threats.

This view of Austin was widely criticized by jurists mainly on two grounds. Firstly, he has
taken into consideration the part of law which is enacted by sovereign legislative authority and
completely ignored customary and unwritten laws. Sir Henry Maine have stated that long
before enacted laws took their place as statute, communities was relied and ruled by the
customs and usages which was regarded as rule of conduct. Secondly, it is not correct to say
that law are followed because of the fear of sanctions behind them. The law can be observed
because sometime community may believe that without any formal legislative authorities the
state cannot function in a proper manner. Maine said that the laws are obeyed not because of
the fear of punishment but because of the habit of mind and practices of the communities.

B. Oppenheim’s View
The definition of International Law provided by Oppenheim in 1905 was “Law of Nations
or International Law is the name for the body of customary and convention rules which are
considered legally binding by civilized states in their intercourse with each other.” 4 This
interpretation of Oppenheim was criticized by many jurists. The noticeable criticism of his this
definition were:

 He only considered customary and conventional rules as international law but in reality
international does not only include of customs and conventional rules but the general
principles of law as well. International Law continuously evolves so it cannot be held
static only to customary and conventional rules.

3
Mehrdad Payandeh, The Concept of International Law in the Jurisprudence of H.L.A. Hart, Oxford Academic (Nov.
01, 2010), https://academic.oup.com/ejil/article/21/4/967/418140/The-Concept-of-International-Law-in-the
4
Evangelia Linaki, A Glimpse of Lassa Oppenheim’s Definition of International Law, LEX WARRIOR (Sep. 9, 2013),
http://lex-warrier.in/2013/09/glimpse-lassa-oppenheim-s-definition-international-law/

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  He considered international law to be legally binding, whereas, international law is not
legally binding. This does not mean that it is not a law. As it is not legally binding
hence, no one can be forced for the same.
 He only considered civilized state bounded to international law. At that time only
Christian states were considered as civilized state. So as per the definition non-
Christian nations would not be considered as civilized, and that’s why the definition is
not applicable on them. But the international law is a law for all recognized states, it is
not only limited to some states.
 He only considered states as subject matter of international law, but international law
has wider area of subject matter and not just limited to states. It includes international
organizations also.
 In his definition of international law he did not considered the rights and duties of
individuals and international organizations.5

Oppenheim updated his definition in 1992 in the 9th edition of his book. He widened the
scope of international law to include international organizations, state as well as individual.
He also recognized the rights and duties of the international organization and individual. The
updated definition was:

“International law is the body of rules which are legally binding on States in their
intercourse with each other. These rules are primarily those which governs the
relations of States, but States are not the only subjects of International Law.
International organizations and, to some extent, also individuals may be subject of
rights conferred and duties imposed by International Law.”6

According to the Oppenheim view of International Law, it can be regarded as law only if
there exists an international society or community because every society necessarily has a
system of law. He considered international law as law because it is recognized and practiced
by states. Even though it is not binding, it does not mean it will cease to be a law. He said just
because one can’t be punished for a wrong doesn’t mean that the principles governing that
wrong be ignored or removed.

C. Starke’s View
Another jurist Starke has different view on International Law. According to Starke’s
definition international law is a body of law which is composed for its greater parts of the

5
DR. H. O. AGARWAL, INTERNATIONAL LAW & HUMAN RIGHTS 2 (Central Law Publications, 2014).
6
1 Lassa Oppenheim, International LA

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 principles and rule of conduct which state feel themselves bound to observe and therefore do
commonly observe in their relation with each other and includes international institutions,
organizations and their relation with each other and state as well as individual and non-state
entities. His definition of international law is somewhat similar to the revised definition of
Oppenheim in scope. Starke has widened the scope of international law by adding the rights
and duties of individual and other non-state entities along with the states. These entities have
come within the ambit of international law because of the radical developments that took place
from the beginning of 20th century, mainly after the formulation of United Nations. Starke
believed International Law to be law because:

 He quoted that earlier in history there was no single legislative body and so people
collectively formulated a law. In a similar fashion International Law is law as it is made by
states’ consent.
 He argues that if International Law would have been only a moral code then it should not
be followed, but that is not the case.
 The validity of international law was not recognized but with establishment of United
Nations and states’ giving mutual consent to International Law, it now has a legal backing.7

III. ANALYSIS
International Law is derived from international conventions and treaties, international
customs, general principles of law and judicial decisions.8 The fact that there is no institution
to force international law is a main reason of the debate over whether international law is law
or not? The decentralized nature of the international legal system has led many to believe that
it is at most a set of principles of the behavior of its subject matter which lacks binding force.
Thus John Austin stamped international law as ‘improper law’. Many jurist does not follow
this theory, the argument that International Law is breached very frequently by the States,
therefore it is not highly regarded, is not a convincing one to not regard international law as
law. From the inception of the concept of international law thousands of treaties have been
formed between the States, but the instance of their violation are very less in percentage. The
rules such as immunities to diplomatic agents, laws regarding warfare etc. are generally
observed. Even the states which does not follow international law, will not say that it is non-
existential. The breach of international law occurs because of political considerations or some

7
DR. H. O. AGARWAL, INTERNATIONAL LAW & HUMAN RIGHTS 3-4 (Central Law Publications, 2014).
8
Article 38, Statue of the International Court of Justice, 1945.

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 other issue which led to believe that International Law is not followed. But in practice, if the
rules of international law are not present, the world would have been a very chaotic place. In
regard to the fact of its non-binding nature, many States has asserted in their municipal laws
and also in various international forums that the international law is legally binding upon them.
States have also recognized the international law by adopting its officials and courts. States
have incorporated the international law in their own constitutions. And with regard to Austin’s
view of International Law as ‘positive morality’ as it lacks legislations, this situation is changed
now. Substantial developments has taken place since Austin gave his definition of international
law.9 Now, there are international legislations in the form of multinational treaties and
conventions. Therefore, the fact that international law is a decentralized system does not make
international law as less of a law.

The other ground on which the legality of international law was argued is that there is no
truly universal international law because it cannot be said that there is an international
community. In case there is no international society, there must be an anarchy. But it is obvious
that there is no anarchy. In today’s environment it is impossible for a state to exist in isolation.
The nations have realized that it is in their interest to engage in the relations with other states,
and for these relations to be successful and stable it must be governed by some kind of norms.
Although there is no international government, there is an international society whose structure
are governed by law. Even the determination of state is made with the accordance of the law
and this law is with the consent of all the states. With the formation of United Nations and
many bilateral and multinational treaties, it is evident that there is the existence of international
community.10 Though the members of the community do not agree on everything, but the
degree to which they share the common interest and their will to work together is sufficient to
believe that there is existence of international community and hence, the existence of
international law cannot be challenged on this ground.

IV. INTERNATIONAL LAW – A WEAK LAW

On the basis of our understanding of international law, it is a true and proper law. The
international law is not enacted by the sovereign and there is no organization for the
enforcement of the same. The international law is law but it is not at par with the laws made

9
Aini Aryani, Is International Law a True Law (Apr 24, 2008), http://ainiaryani.blogspot.in/2008/04/is-
international-law-true-law.html
10
Stephen C. McCaffrey .Understanding the International Law 6-7 (Lexis Nexis, 2006, available at:
https://books.google.co.in/books?id=3tvPz3z0rxEC&printsec=frontcover#v=onepage&q&f=false)

5
 by the sovereign and has the binding nature, it is said that international law is a weak law. The
legal character of the international law is enabled by the states practice and the functions of the
international organizations and institutions. However, it is also true that it is a weak law
because its rules are not as effective as municipal laws. Municipal laws are more aggressive
than international law because:

1. International laws are in the form of international treaties and customs which are not
comparable in efficacy to state legislative machinery. The rules of treaties and customs
are made in such a way to give wider scope to the States.
2. Although International Court of Justice (ICJ) is present, then also there is no such court
which in true sense could decide the dispute of the States. ICJ does not have the
jurisdiction to decide the dispute of all the States as the Court only acts if the States
provides its consent.
3. International Laws are not enforceable and nor there is proper machinery to make
international law enforceable. The municipal laws are enforceable as there is proper
machinery. For one state to draw up case against the other state in the ICJ, one state
can summon another in the ICJ only if it has given the consent to the ICJ. The state has
the wish whether to be judged by the ICJ or not. The decisions of the municipal courts
are binding on the parties, they have to abide by the judgment. This is not the scenario
with ICJ, its judgment is not binding on either of the parties. The judgment of the ICJ
is like the suggestion to the states and it is upon them to follow it or not.
4. Rules of International Law are frequently violated by the state, especially during the
war and the claimant of the law takes the law into his own hands.1112

These are the reasons which make us believe that international law is a weak law when
compared against the municipal laws. There is no legislation of the International Law, and
while a court exist, it can only act on the consent of the parties and has no real power to enforce
its decision. Even though International Law is a weak law, it should not be considered as no
law at all. It remains primarily a law for States and will continue to play its role as a law as
long as the world is divided into nations.

11
Law Notes on Public International Law, Law Notes, http://kuklawnotes.blogspot.in/p/international-law_72.html .
12
Can International Law Be Called True Law International Law Essay, LawTeacher,
https://www.lawteacher.net/free-law-essays/international-law/can-international-law-be-called-true-law-
international-law-essay.php

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V. CONCLUSION
We are more inclined to be on the side of the jurist who believed that international law is
a ‘true law’. Though John Austin regarded the international law as ‘positive morality’ way
back in 19th century when the things were different, but now the international community has
developed and international law is much more than positive morality though it keeps some of
its characteristics. Now with the formulation of many bilateral and multinational treaties and
conventions the international legislations and come into the presence, and hence strengthen the
nature of international law as a proper law. The international law lacks the binding force but
the practice of the states themselves has shown from time to time that they consider themselves
bound by such rules. At present it is apt to say that international law is law even though the
Austin’s view is considered, but the power of international law has not risen to such a stature
that it could stand at same level as municipal laws.