Is International Law a True Law?
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Transcript of Is International Law a True Law?
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PUBLIC INTERNATIONAL LAW
Group Presentation:“IS INTERNATIONAL LAW A TRUE LAW”?
Group Members:1. ARNAB KUMAR DAS (LLB 00305037)2. ERFAN UDDIN NIZAMI AND (LLB 00305035)3. MD. JAHANGIR ALAM (LLB 00305040)
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WHAT IS INTERNATIONAL LAW?
International Law is the set of rules generally regarded and accepted as binding in relations between states and between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state based legal system in that it is primarily applicable to countries rather than to private citizens.
International Law is consent-based governance - a state member of the international community is not obliged to abide by this type of international law, unless it has expressly consented to a particular course of conduct.
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The term “International Law” can refer to three distinct legal disciplines:
Public international Law, which governs the relationship between states and international entities. It include these legal fields: treaty law, law of sea, international criminal law, the laws of war or international humanitarian law, international human rights law, etc.
Private international Law, which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.
Supranational Law, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.
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IS INTERNATIONAL LAW A TRUE LAW?A number of jurists have expressed doubts on the question: is International
Law really law? One view is that International Law is not a true law. It is a code of rule of conduct of moral force only. Another view is that International Law is a true law, and it is to be regarded as law in the same way as that of ordinary laws of a State which are binding upon the individuals.
There are several ways to think about law. In the domestic legal system, we think of law as the rules that the government issues to control the lives of its citizens. Those rules are generally created by the legislature, interpreted by the judiciary, and enforced by the executive branch, using the police, if necessary, to force citizens to obey. What is law for the international community if there is no one legislature, judiciary, executive branch, or police force?
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AUSTIN VIEWAccording to Austin view, international law is not legally binding on States. Law is the command of the sovereign attended by sanction in case of violation of the command. In the other words, law should be limited to rules of conduct enacted by determinate legislative authority and enforced by physical sanction. The superior according to him is the real sovereign. The definition contains two important elements. Firstly, the law is command enacted by the sovereign legislative authority i.e., any rule which is not enacted by sovereign or superior cannot be regarded as law. And secondly, it must be enforced by the sovereign authority i.e., if laws are violated, there should be adequate sanction behind it.
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OPPENHEIM VIEWOppenheim says that law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power. According to this definition, essential conditions for the existence of law are threefold. Firstly, there must be a community. Secondly, there must be a body of rules of human conduct within that community. All the communities submit to the rule of law because they wish to afford due respect and protection to the dignity of men and nations. And thirdly, there must be common consent of that community that these rules shall be enforced by external powers. It means that it is not necessary that rules should be enacted through law-making authority or there should exist a law administering court within the community concerned.
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John Austin regarded International Law as a ‘positive morality’ in the 19th century, when international community lacked legislation, a court, sanctioning powers and enforcement machinery. And in view of all these if he concluded that International Law is not a true law, perhaps he was not wrong. But presently, international legislation has come into existence as a result of multinational treaties and conventions.
If rules are violated by a State, sanctions may be applied against it not only by the aggrieved State itself but collectively by the United Nations Organization (UNO) as well. Further, international community has a Court (International Court of Justice), whose decisions are binding upon the parties to a case. If a party falls to perform its obligations incumbent upon it under a judgment rendered by the Court.
Existence of International legislation, a Court, sanctioning authority and the enforcement machinery are the developments of the present century. Personally, I agree with the view of John Austin. But, the Statement of “International Law is a true Law” is evident even if Austin’s definition is accepted.
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References:1. Law Dictionary, 1999. by Mian Asad Hakim, Lahore: Mansoor Book House, First Edition.2. Starke’s, J.G., Introduction to International Law, New Delhi: Aditya Books (P) Ltd., 1989.3. Shaw, Malcolm N., International Law, Cambridge: Cambridge University Press, Fifth Edition, 2003.4. Oppenheim, International Law, Vol. 1, Eight Edition (1995).5. Agarwal, H.O. Dr., International Law , Allahabad: Asia Press, Third Edition, 1995.6. http://en.wikipedia.org/wiki/international_law
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