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Is International Law a true law: There is one theory that International Law does not qualify as true law but it is just a moral force.

Austin’s view: Austin and Thomes Hobbes insist that law is the command of a determinate superior and that constantly no law can exist where there is no supreme lawgiver and no coercive enforcement. If there is no sovereign authority then the rules could not be legal rules but rules of moral or ethical validity.

Positive morality: Austin and his subscribers say that it is not true law but positive international morality or rules of conduct of moral force only, for there is not supreme lawgiver and no coercive enforcement in it. In that time Austin was rigid. International Law is not a true law but in this time International Law is part of our law, and must be administrated by the courts of justice of appropriate jurisdiction.

Reply to Austin’s view: The reply to Austin’s view is as follows:

1. Choice to a penal statute: As Hert points out that the Austin’s theory of law approximates closer to a penal statute enacted by the legislature of a modern state than to any other variety of law.

2. System of law, without a formal legislature: Modern historical jurisprudence has discounted the force of his general theory of law. It has been shown that in many communities, system of law as in force and being observed, without a formal legislative authority. Such law did not differ in its binding force from the law of any state with a true legislative authority.

3. Questions of International Law: Questions of International Law are always treated as legal questions by those who conduct international business and are regularly stated in legal terms and interpreted by legal methods.

Almost from the early stages of the development of the science of the Law of Nations the question whether International Law is law in true sense has been a subject of much speculation. Has it binding force opinion sharply been divided on this vexed (disturbed) question?

A constantly evolving body of norms: International Law is a constantly evolving body of norms that are commonly observed by the members of international community in their relations with each other for providing an orderly management of international relations.

Whether International Law qualifies as law or not - choice of the definition of law: Whether or not one wishes to attribute a legal character to the norms of International Law depends largely upon the definition of law he chooses to accept.

This question has been matter of discussion since long whether it is law? Some writers object the use of word “law”. They say that states are free from external pressure. If they consent to follow the principles of International Law, it does not mean they are debarred from their sovereign powers. It does not affect their sovereign powers. In the opinion of some writers law is the name of rule which every superior issues for inferior.

This rule binds the people to prepare its structure. Its compliance would be compulsory and its violation will result in punishment. There is no such compulsion in International Law. In International Law there is not sovereign power that issues orders. If there is any sovereign power in International Law, the sovereign power of the states will be lost.

There is no binding force behind it. It is not doubtful, that states observe the rules and regulations in the compliance of international contracts with the feeling of betterment and ethics. These rules and regulations are decided in their limits and are liable to revoke. There is no law force, which can stop them in doing such act.

International Court of Justice is a forum where states bring their disputes for settlement but states are no more bound to accept them and may refuse. It all depends upon them.

There is no forum for its explanation or interpretation.

There is no concept of legislature in International Law for the enactment and enforcement.

In the opinion of different writers International Law is not real law. According to Austin it has status of positive international morality. It is a collection of emotions of people and common opinions.

Merits of International Law: Presently an International Law is very important for every state. In past there were some problems between states but at present it is very important and all states feel that it should remain there.

1. Protection of states’ interests: It is doubtless that International Law has protected the interests of the states. It helps those states, which have no such power to protect their interests. It also protects states from suffering of loss. It provides them rules and regulations for which states are bound to follow. It relates with the boundaries, society, morality, ethics, and religious matters. Kuwait was protected by International Law.

2. Welfare of human being: In fact International Law plays an important role in the welfare of human being. Submission of these rules brings prosperity for humankind. It has different institution, which perform its functions.

3. Equality: International Law gives importance to equality. It gives the same status of equality to small state as the big state. In international relations all are equal. One state has no superiority over other one. In international matters, every state plays its role.

4. Individuality: International Law also gives individual importance to each state. All the other states also recognize it. International Law has covered almost all the world and formed a society and promoted brotherhood. Individuality has importance in it.

5. Unity and strength: This law has created the environment of the unity and strength among the different states. It has taken all the states in a line. No one state can separate her from others. Every state has become the need of other one and plays an important role in unity and strength.

6. Development of social values: This law has also played an important role in the development of social values. International Law has tried best to promote the social values.

Demerits of International Law: It has also some demerits as well as merits, which make it weaker. These demerits are as follows:

1. Limited scope: In the present circumstances it seems ambiguous and of limited scope. There is no solid organ of International Law, which can resolve the matters of states equitably. It could not devolve person into state.

2. Ambiguous law: Some of its rules and regulations are not only uncertain but also ambiguous. Pace of its development and promotion is deadly slow. It cannot combat with changing environment of the society.

3. No apparent authority: There is not executive class who can enforce the laws. It lacks the force of law, which enforces the law, and gets exercised. Only International Court of Justice exists. There is not existence of special courts that can decide the particular disputes. International Court of Justice cannot settle certain matters. States do not allow International Court of Justice in the settlement of disputes. After the decision is given, there is no such power that may get it enforced.

4. No administration power: There is no administrative power behind it that can get its decisions enforced.

5. Little enactment: It has little room of enactment. Mostly matters such as excise, intercourse between two or more states, taxes, and market etc. are excluded from its scope.

6. Non interference: International Law does not intervene in the matters, which takes place in any member state.

7. Uncertainty about facts: There may be a genuine uncertainty about the facts. For instance, before one who decide whether United States participation in the Vietnam fighting is legal or illegal, has to decide whether the National Liberation Front (Viet-cong) in South Vietnam represents spontaneous internal revolt or whether it represents subversion from North Vietnam.

8. Uncertainty about law: There may be a genuine uncertainty about the law. For instance, some states think it is lawful to nationalize foreign property without compensation, others disagree. When dispute arises between a state in the first group and a state in the second group, each will be convinced that it is in the right, and it is impossible to predict how an international Court would decide the case.

9. Internal disintegration: Sometimes international dispute may cause internal disintegration such as demand for the increase of wages in employment. However wages are fixed by the contract of employment and contracts can be altered by mutual agreement.

10. Unfriendly legal act: International Law does not prevent a state increasing its tariffs on goods coming from another state, even though the result may be to cause severe unemployment in the other state.

11. Dualism: Dualism can easily be observed in the solution of the international disputes. Dispute of North Tamour has been solved whereas dispute of Kashmir stands unresolved. Terrorism in Israel has not been condemned while liberation struggle of Palestine is condemned.

It is weaker law in the eyes of J. G. Starke. Another writer says that it is not only a weaker law but it contains mostly on customary law.

Despite the existence of International Court of Justice many hurdles came in its development. This law does not resolve the disputes.

How it can grow: Following are the some suggestions, which can determine its pace:

1. Rules and regulations of this law should be revised and taken into writing.

2. It should be given the form and shape as the ordinary law of the state.

3. It should be formed globally.

4. It should be developed through courts.

Many activities are being taken place in this regard. Conferences and other important treaties are playing an important role in its growth. Changing political environment and expertise are trying in changing the International Law. Also courts are playing important role for its development.

Present day International Law: Austin’s views however rigid for his time are not true of present day International Law. In 20th century a great mass of “international legislation” has come into existence as a result of law making treaties and conventions.

Procedure for formulating rules: The procedure for formulating the rules of international legislation is practically as settled if not as sufficient as any state legislative procedure.

Conclusion: International Law is law but a weak one, the cumulative evidence against the position taken by Austin and his followers should not bind us to the fact that International Law is a weak law.

Its enforcement devices: It is obvious that there are gaps and ambiguities in the law, that its enforcement devices are often inadequate and it has not succeeded in eliminating the use of force in international relations.

There is no world legislature, no international police, and no international Court with compulsory jurisdiction.

Historic background of International Law: It has not certain period of its beginning. It is explored that it came into existence right from the commencement of human life on earth. States had established mutual relationship and played an important role in social life. International Law has been developing time to time and its form has been changing with the passage of time.

In thirteenth century B. C. a contract took place between Egyptian King Pharaoh and Syrian King after a war. It was consisted on the conditions of peace and co-operation and land acquisition. It was written on a silver plate. It reveals that no doubt this system was available since long before and states were made treaties as the same now is. In old time there was neither travelling arrangements nor concept of states, but agreements were made. There was also diplomatic representation. Disputes were settled with arbitration. There was tradition of asylum in that age.

Greek period: Greek nation was reluctant to maintain relationship with non-Greeks. They were habitant to make slaves others. They had thought that only Greeks are born to be rulers. In words of Aristotle, “nature has created non-Greeks only for to be slaves.” States either democratic or imperial had mutual relationship and rules and regulations among them. Mostly matters were decided with arbitration. They were not remain civilized but became cruel during war. War was not started without declaration. Religious places were not destroyed. Killed/deceased people were buried. Prisoners of War were exchanged. They had formed Greek union of nations. In that age treaties were made. Such like states may enjoy peace and prosperity.

Roman period: Till 753 B. C. states were not too big. International Law was clarified till 3rd century B. C. after the evaluation of big state founded. Relations were developed with Persia while making the treaties with others. Roman were taken into consideration the principles set out by that former states and they provided the legal protection. They made a treaty for common defence of states. Non-member states could not enjoy such facility. War was formerly declared. Treaties were taken into consideration without which existence was impossible. Principles they had formed played an important role in International Law even today.

Jews’ period: Jews were considered superior themselves than others. They had superior standard than others. They had treated other inferiors. That’s why they did not contributed in the development of International Law. They were severe enemy of many nations. During the peacetime they had not good moral character. They had bad treatment for others during warfare. They were killed children and aged people. They had good relationship with alien friends. They had respect for diplomatic representatives. Their national law was applied in the territory of subjugated (beaten) country. Agreements were made at the end of war.

Indian period: Historic period of India begins since thousand years’ back. Age of Raja Geet is supposed with Alexander the Great. Brahmans, Khashtari, Waish, and Jain were also Hindus. They had mutual co-operation. They had good relations among themselves. Agreements were made in that age.

Three stages of the development of International Law: Development of International Law is observed into three ages. Its roots are found in the beginning of history of human life. But its clear form is 400 years old. A writer has divided its development in three stages.

First period: First period of International Law is started right from the beginning of human history and ends at formation of Roman empire. In this period there was respect of same race and same religion. For the achievement of peace, ambassadors were sent. They had certain immunities. They were not treated enemy but friend and had better relations. Romans applied rules relating with peace and war. War was ceased upon the peace and friendship. Tradition of internationalism became ceased after the fall of Roman Empire. Geographic boundaries were not defined. They were united upon common race. Kings were the rulers over certain territories. Same principles of International Law had been developed in this age.

Second period: In this age religious movements came into force. They left certain effects. They emphasized on the importance of International Law.

Roman Empire: Second era was started with the creation of Roman state. It was spreaded over the large part of the world. Need for the importance of International Law became end. Off and on any incident took place which showed the importance of International Law. According to the law of Rome, agreements were made and protected. In the failure to become friend, they were made slaves.

Christian influence: Christian religion gone to Italy. It became official religion of Italy State. This era eliminated the question of International Law. Continuous crusades were started. They treated Muslims their great enemy. Their revenge passions grown up after the concurrence over Bait-ul-Maqdas of Muslims. Christian priests declared all the agreements prohibited with Muslims from religious point of view. The crusades were remaining in operation till long. Despite of the fact, agreements were made. In that age, there was also trend toward International Law.

Islamic influence: After the dawn of Islam, complete change took place. Infidels started harassment to Hazrat Muhammad . In these circumstances they migrated from Makka to Madina. They founded state, which became first Islamic State over the global map (Atlas). They fought many wars. Muslims were martyred and concurred. Moral values were taken into consideration. Killing of women, children, and aged people, if they remain peaceful, transgression of limits, devastation of crops, destruction of buildings and houses, ruin of gardens, killing of animals, and arson of public places became prohibited. Weaker people were remitted. Muslims were spreaded over from east to west.

Hazrat Muhammad said in his Tradition, “O people you are followers of one Allah and are progeny of Adam. The best among you is who refrains from evils”. All the Muslims are brothers. An Islamic state act upon the light of Quran. They do not discriminate, the matters of the world and hereafter. Islam has made all the principles. Islam is code of life and teaches us in all spheres of life. Islam has also clarified the International Law. Western writers have negated the importance of Islam in the development of International Law. The period of Muslims was so brilliant.

Third period: There was a long war between king and church. German king created a big state. In an agreement Pope took over the matters of religion and secular matter left for king. Despite of this agreement the war period remains continue. In fifteenth century Pope became weaker. In seventeenth century many small states came into existence that made mutual treaties. Despite of war many contracts and peace pacts took place.

International Law: International Law is the law, which governs the relations among states and other international legal persons. The sources of International Law are customs grown up among states and lawmaking treaties concluded by them.

International Law regulates relations between states.

International Law is a law not above but between sovereign states and it therefore a weaker law.

Municipal law: Municipal law is the law of a state, which governs the domestic affairs of the state. The sources of Municipal Law are customs grown up within the boundaries of the state concerned and statutes enacted by the law giving authority.

Municipal Law regulates relations between the individuals under the sway (influence) of a state and the relations between the state and the individual.

Municipal Law is a law of a sovereign over individuals subjected to his sway.

Relationship between International Law and municipal law: There are certain questions which come before international lawyer whether what are nice considerations between international and municipal law. The most important practical problem of more immediate concern to municipal courts are as to what extent may courts give effect International Law in municipal courts both where such rules are, and where they are not in conflict with municipal law. It is a practical problem, which requires consideration of the practice of states.

It is the practice of national courts that the relationship of international law to municipal law is of fundamental importance which means that to what extent they are interrelated with each other, or where they conflicts which will be preferred or the system are to oppose or to coordinate with each other.

Theories in this respect: There are two theories as to relation between International Law and municipal law, i.e., dualism and monism.

Dualism: In nineteenth and twentieth centuries philosophers emphasized on the sovereignty of the state-will and the complete system of legislation in a state. It has developed that trend toward the duelist view. According to dualistic both international and municipal law are distinct systems. There are two basic differences between the two systems:

1. Subject of law: In state law subjects are individuals whereas states are solely and exclusively subjects of International Law.

2. Juridical origin: In state source of law is will of the individuals for which they are concerned while in international source of law is common will of the states concerned.

Distinct legal systems: According to dualism, these two systems are entirely distinct legal system, international law having an internally different character from that of state law.

Chief exponents of the theory: The chief exponents of dualism have been the modern positivist writers Triepal and Anzilotti.

Anzilotti’s view: Anzilotti distinguished international law and state law according to the fundamental principle by which each system is conditioned in his view.

State law is conditioned by the fundamental principle or rule that state legislation has to obey, while International Law is conditioned by the principle “pacta sunt servanda”. It means that agreements between states are to be respected.

International Law binds individuals and entities other than states. B section is something misleading to the extent of the superior state in International Law. Superior has definitely dominant role in International Law despite the common will of the states.

State law is based upon the principle and norm, which sates legislation, has to be obeyed. In International Law main principle is agreements between states that are to be respected. Thus the two systems are entirely different. This theory not only has received support from positivists but non-positivists writers and jurists. State law mainly is consisted on judge made law and the statutes passed by legislature whereas International Law is comprised on the customary rules and treaties among the states.

Monism: This is strictly scientific analysis. It is single unity composed of binding legal rules whether those rules are obligatory on states, on individuals, and on entities other than states.

If it is generally accepted that International Law is a true law then there is no doubt to deny that the two systems constitute part of that unity.

Kelson’s view: In the view of Kelson and other monist writers, there cannot be any escape from the position that the two systems, because they are both systems of legal rules, are interrelated parts of one legal structure.

State’s responsibility to enforce International Law: It is the duty of state to enforce the International Law as the state law in its jurisdiction.

Mortenson v peters: In this case High Court of Scotland gave effect to a municipal law against the International Law but the state was under obligation to conform the International Law, therefore, the executive in fact demolished the judgement in order to make Britain’s behavior conform with her international obligation.

Question of priority: Monists are somewhat divided on this point whereas dualists assert that the two systems are not to supersede, but to coordinate with each other, therefore, there arises no conflict between the two.

Practice as to priority - case before International Tribunal: When the case in which conflict arises between International Law and municipal law before an International Tribunal, the practice is to prefer the International Law over the municipal law.

Practice as to priority - case before Municipal Court: Where conflict arises in a case before a municipal Court (except where the state has adopted the International Law to supersede, by constitution or law), the municipal law is preferred.
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