CHAPTER 1 Legal Basis of International Law

Updated: Aug 19, 2020




i) Definition : International Law is defined as a body of principles & rules commonly observed by States in their mutual relationship with each other. It; includes the law relating to States & International organisations and also International Organisations inter se. It also includes the rules of law relating to international institutions and individuals, and non-State entities and individuals.


ii) Though there are theories on the legal basis. of International Law, the Austinian theory has received wide attention. Austin opined that International Law was not law at ail and called it a ' Positive International Morality' and hence it had only moral force. He called it a set of opinions or sentiments current among nations generally and "laws improperly so called". Hobbes, Pufendrof, Bentham and Holland were of the same view. Holland said that it was at the vanishing point of jurisprudence. Austin defined law as a ' body of rules, set and enforced by a sovereign political authority. Hence when the rules do pot come from the sovereign, they would not be legal, but moral. Basing on this positive law concept Austin declared International Law as a code of morality.


iii) Reply to Austin by Oppenheim : This definition is inadequate and incorrect because there is no reference to unwritten law (custom) as courts understand and apply them. Customary rules or rules of morality are founded on conscience. Hence, law must be defined to include the unwritten law. Neither the law making sovereign authority nor the court is essential for a law to exist. In the primitive community that was the position. In the modern State, the common consent of the people is expressed through the legislature (Parliament). But, there are unwritten laws as well.


iv) Wider Definition : Law may therefore, -be defined 'as a body of rules in a community framed by common consent, and enforced by an external power'. This definition answers the State-made law and the customary law. Hence, in a State, the Parliament (representatives of the Community) is the law making body and that law is enforced by the Community called the State. A custom is made by the community and is enforced by the community itself (Courts recognise them as a source law). Hence, this definition is wider.


Applying this definition if we are to justify that International Law is 'Law', we must prove the existence of : (a) An Internationalcommunity, (b) A body of International Rules and (c) A system of enforcement (sanction),


a) International Community : The States together form an International Community. There are common interests in the field of science and technology. There is a 'world net-work of communications through telegraphic, telephonic connections and radios. There are Inter-State connections by railways, airways and ship navigation.

Further, there is cultural co-operation and common interests on education etc., Establishment of Organisations like the United Nations and the Specialised Agencies, Regional Agencies etc., speak volumes to the fact that there is a World Community.


b) Body of International Rules : Treaties & International customs are the main sources of International law. Austin's views however right for his time, are not true of present day International Law; International customs are being formulated into treaties & conventions. There is great volume of international legislation :

Eg. : Declaration of Paris 1856, Hague .Conventions of 1899 & 1907, Peace Treaty 1919, Treat y for Renunciat ion of War 1929, t he U.N. Charter 1945, various conventions of the Law of the Sea Conference 1958, Vienna Conventions on Diplomatic Relationsetc., There are also a large number of International Customary Rules, evolved from diplomatic relations and correspondence from the practice of international Organizations & State Practices, etc :These are formulated into treaties & conventions. The InternationalLaw Commission is playing its major role in this process. Thus, there is no legal vacuum, but a body of international law in operation.


Enforcement : States resort to :

1; Self-help.

2. Intervention-pure & simple.

3. Pacific Settlement under the U.N. Charter-; Also to Collective Security Measures of the Security Council.

4. Puni shment of Of f ender s: e. g. : War Criminals. There are also rules of 'International. Community' based on goodwill, courtesy & reciprocity & Austin is correct when his 'code of international morality' refers to them. But, those are different from International legislation noted above.

5. Political questions may be resolved through the General Assembly or the Security Council. Judicial questions may be decided by the International Court of Justice. There is a frequent resort to Arbitration as well. , Hence, for enforcement there is the sanction (or force) of the International Community.


Conclusion: As all the three elements are present, International! law is evidently law. Of course, the frequent violations of International Law, show the weakness of the sanction of International Law. But, as Oppenheim, rightly concludes, 'Compared to Municipal Law, it is a weak law, but a weak law is still a law.'

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