1. What do mean by International Law ?

Cite some
Q. you
preference
popular definitions of International Law showing your
?
to any of them. Assign reasons for your preference
"International
Ans. Meaning of International Law.-The term,
middle of the 17th
Law", is of a comparatively recent origin. Until the
as "the Law of
century this branch of law was customarily known
Nations" or "Universal Law" (jus gentium). In the 17th century, the
term "jus inter gentes" began to come into usc. Richard Zouche who
held the chair of civil law at Oxford, published in 1650 a manual of
international law in which he substituted the term, us gentium of
Grotius, to "jus inter gentes", and laid stress upon custom as a source
of international law. During the 18tn and 19th centuries international
law existed in different forms with different names in various coun-
tries. This subject has been given different nomenclature by different
authorities. "International Law" is the title most frequently adopted by
English and American jurists. Twiss, Lorimer, and Brierly elected to
use the title "law of nations", while Hannis Taylor and A.S.
Hershey
preferred "International public law". Other suggested titles have been
"the law between power"" (by Taube), "inter-State law" and "the law
of the community of States" (b, Verdross). Dr.
Jessup, in his recent
work "Transnational Law" has adopted this latter to denote" all laws
which regulate actions or events that transcend national boundaries."
International law is the law governing the relations of S tates inter
Se. lt can be defined as "thc aggregate of rules governing relations
between States in the process of their conflict and
to
c0-operatiOn, de-
Sgned safeguard their co-existence, expressing the will of the ruling
Ciasses of these States and defended in case of need by coercion
appied
y States individually or collectively"-International law published by
ACademy of Science of the U.S.S.R. (Institute 0f law), p. 7.
o e popular definitions.-Some of the popular definitions of
international Law are given below :
MEnu-According to Manu (the ancient Hindu law giver), mcn
Oganised into different indcpendent communities needed the
prescrip-
 to guide (inter-stataln
them in their
tion of known rules of conduct should relansa
the absence of such rules they
mutual relations 1lest by could.lead to "Matsva
of anarchy where "might iS right"
into a state
Nyaya."
Wheaton."International Law as understood among the civi.
those rules of conduct
be defined as consisting of
lized nations, may from the nature of the
consonant to justice
which reason deduces, as
nations, with such definitions and
society existing among independent general consent."
modifications, as may be established by
Law or the Law of Nations is
Hans Kelsen."International
the usual definition.
the name of a body of rules which, according
States in their intercourse with one
regulate the conduct of the
another."

Criticism.-Kelsen's definition is criticised on the ground that

it did not accept any difference between International Law and Municipal
Law. In words of Corbett, Kelsen asserted a Scientific indifference
though political as between International law and State
not moral or
law, but contemporary jurisprudence for the most part deplores this
indifference and posists the limitations of the State sovereignty by
International law. This definition was held to be correct at thc time
Kelsen wrote it but not acceptable at the present.
Strake.-"International Law may be defined as that body of law
which is composed for its greater part of the principles and rules of
conduct which States feel themselves bound to observe, and therefore,
do commonly observe in their relations with each other, and which
includes also
(a) the rules of law relating to the functioning of international
institutions or organizations, their relations with each
and their relations with States and other,
individuals ; and
(b) certain rules relating to individuals and non-State entities
far the so
as
rights or duties of such individuals and
non-State
entities are the concern of the
international community."
Starke has further pointed out that from
the
vicw, well to remember hat international law is practical point of
it is
regulating the rights and duties of States inter primarily a system
gOod practical working rule to regard se.
Indeed, it is very
nosed principles whereby certain
pos of international law as
mainly com-
are imposed upon States. rights belong t0, or certain duties
Hughes.-In the opinion of
Hughes, international law is
mposite
comp
co dy of
posite body principles
and rules, the
sider these rules as binding which all civilised
consent
upon them in their States con-
n the ofvereign States. Thus ilmutual
is the relations. It rests
hat work as a sanction behind
these rules consent of Statees
 Alf Rose.-International Law is the
body of legal rules binding
upon States in their relations with one another.
J.L. Brierly.-"International Law may be defined as the
rules and principlesof body of
action which are binding upon civilised S tates
in'their relations with one another". He observes that
system of international law is modern, but it has a medievalalthough
the
foundation.
Oppenheim.-"Law of Nations or International Law is the name
for the body
of customary law and conventional rules which are
con-
sidered legally binding by civilized States in their intercoursc with
each other."
Criticism.-Professor Oppenheim's definition is subject to se-
vere criticism on the following grounds:
(1) It is now generally recognised that not only State but inter-
national organisations have rights and duties under
international law;
although they may not have all the rights and duties that States have.
(2) The view of Oppenheim is more controversial but no longer
untenable because individuals and other private persons may have
some such rights and duties towards international law. After Second
World War, the main change that has taken place is that from the
formal structure of relation of States it is moving towards the interest
and welfare of citizens of number of States.
(3) It is now well established that international law consists not
only customary and conventional rules but also general principles of
law. Article 38 of the statute of International Court of Justice provides
"General Principles of Law" as the third source of International Law.
(4) The very conception that International law is body of rules
now stands changed as static and inadequate. Now International law is
continuousBy reinterpreted and reshaped in its very process of its ap-
plication by authoritative decision makers, national and international.
Change acknowledged.-It is noteworthy here that in the ninth
edition of Oppenheim's book editors (Sir Robert Jennings and Sir
Arther Vatts) have considerably changed the definition of 'Interna-
tional law'. (See-Oppenheim-International Law Ninth Edition, Vol. I,
1992 P. 4). Accqrding to the definition given in this edition Interna-
tional Law is a group of such laws which are legally binding in relation
to reciprocal relations of Statcs. This law
primarilyregulates the rela-
tions of States but only States are not subject of international law.
International institutions and to some extent individuals may also be
subjects of international law in relation to rights conferred and duties
imposed on them by international law. States are primarily subject of
international law but only States are not subject of international law.
Modified definition also brings in its ambit international bodies and
 detinition, given in edition of
ninth edition
the
units. Now similar to
that of Starke.
State or political become
book has e x a m i n e d above
some c

Oppenhcim's have
definition.-We

Law, NOW,
1et us try to find
preferential
The
spirit of Interna.
International
definitions of with the true
bound to go in
the oft quoted accords
preference is
definitions
of these
out which our
objectively, c o m p r e h e n s i v e and is
tional Law. If we judge more
because it is Law. I
definition International
favour of Starke's
modern trends
of
consonance
with the International Law as a system
in more
definition of
traditional States only.
the relations betwcen
goes beyond the
composed solely of rules governing with its restriction to the
of the subject, of
Such traditional definition
found set out in the majority
inter se, will be the outbreak of
conduct of States published before
International Law, like
standard works on developments,
In view of the post-war
War.
the Second World Nations etc., however, it is not a
com-
and United
League of Nation's the rules not acknowledged
to form part
all
prehensive description of
of the subject.
the basis of above definitions,
we can sum up following
Thus on

as essential ingredients of International Law

(aInternational law is a body of rules, principles and usages
to which States carry on their mutual relations in peace as
according
well as in war

C Consent of nations whether explicit or implied is essential to

give the law binding character; and

a

(Civilised States as well as citizens inhabiting them becomc

bound to obscrve these rules.
 Q.5 "International Law a true law or is it simply interna-
tional morality."
Or
"International Law is law in the making".--(Jethro Brown).
Do you subscribe to this view ? Discuss giving reasons.
Or
"International Law is law by analogy"-(Holland). Comment.
10
Or

"International
Law is
law by
courtesy"
Holland). Discuss
(Holland

critically. Or
without sanctions
International
Law is a system
for the early stages of the
cience
Ans.
Introduction,-Almost

nature of the Law,

system.there
Pedantic
has been much speculation
objections have
full
been
about the
sense
raised
about the juristic
of the
t term
ic
ofInternational
full of
agains
st
the
the sense
as law in
International law being regarded
taken such a
fierce shapethat
that it almo ,
it

dispute has oft

This doctrinal
International
real
Law as to the nature f the
student of noine
confuses the on this controversial int.
extreme views
denies any legal char.
across
system. We
come
divided. One set of jurists
Opinions are sharply whereas the other
set regards it law in the
International Law
acter to who have chosen
there is no dearth or Jurists
fullest connotation. Yet, rule of morality is a rule
line. But it may be noted that the
the middle cannot be enforced by external
to conscience only andd
which applies enforced by external
the other hand, rule of law can be
power. While
on
agreement about the binding nature of
power. So there is now general
not binding
International Law whereas a
rule of morality is
the Interna
in the weaknesses of
The controversy has its origin Before
the meaning one assigns to
the term law itself.
tional law and Interna
out the weakness of
we enter into the discussion, let us point
tional Law which have been the
main target of attack. According to
independent, there can, on
Pitt Corbett as between States which are
them
law-making body having power to bind
course, be (1) no common
nor is there any common
Tribunal except the int
by 1ts decrees, (1)
to interpret and
national Court of Justice at the Hague, having power any
to apply law as between parties at variance,
(iii) nor is there uc
once to compel
resort to
Common executive having the power at
tribunals and give etfect to their judgment. For these reasons intei
tional Law is notonly less imperative and less explicit butit also
s
the coercive force of the State law. These weaknesses are du
Openheim admits, to International Law being 1law between staic
not 'above them'. i d changes in

Arguments
different against
fields have International
brought Law.in Internationar
a sense of crisis The rapid Law. The
the

in
the
crisis is a product of the acceleration of the of change
e process
International community is characteristics of our era. And ne a
factors

rise of
responsible for this
the new ideologies crisis includeofrapid
and systems technological
public
SS,the com
progress,
order, includi militant co
La
ternational
Law

Inter
munism, decolonization itself. The main attack against dence
has come from the adherents of the "Analytical School of Jurispru
ad hy John Austin. Others who questioned the true
legal character of
Toternational Law have been Hobes, Pufendorf, Jeremy
Jethro Brown. Bentham and
Austin denied any legal force to International Law. His attitude
towards International Law was coloured by his theory of law in gen-
eral. He defines "law" as "body of rules for external human conduct
set and enforced by a sovereign political authority". According to the
Austinian theory, law was the result of edicts issuing from a determi-
nate sovereign legislative authority. Logically, if the rule
concerned
did not in ultimate analysis issue from a sovereign authority, which
was political superior, or if there were no sovereign authority, then the
rules could not be legal rules but rules of moral or ethical validity only.
Applying this general theory to international law, as there was no
visible authority with legislative power or indeed with any determinate
power over the society of States, and as in his time the rules of inter-
national law were almost exclusively customary, Austin concluded that
International Law was not true law but "rules of positive morality" (as
if morality were a depreciatory epithet only, analogous to the rules
a club or sOciety. He further described it as consisting of
binding
"opinions or séntiments current among the nations generaBly", (See
Austin Lecture on Jurisprudence, 4th Edition, revised and edited by R.

Campbell 1873, Vol. 1, at pp. 187, 188, 222).

J.G. Starke refutesi Austin's arguments against the legal character
of the rules of International Law as follows
is
(1) Austin's definition of law as a command of sovereign
a

inapplicable to modern conditions and hence wrong;

of International conduct
(2) The absence of sanction behind rules institutions, which en-
is offset by the establishment of international
their breach;
force the rules and prescribe penalties for
the rules of international
(3) Nations are gradually accepting
relations as part of their municipal law;
rules of international relations and
(4) States give their consent to
observe them as laws of Na-
Before admitting to ,membership of the community
(5) State to agree to the obser-
tions, States require the admission-seeking
as that
of all the rules of International law and not only such
vances
State may like.
rule of International law, but they
Even when the State violate the to justify their conduct
do not deny the existence of law, and always try
International law.
and affirm the binding nature of rule of
Holland.-The chief amongst the protagonists
of Austin's au-
Holland goes even
thority, shows utter disrespect to international law.
 PUBLIC INTERNATIONAL LAW
12
Internationalr.
denouncing w. He
than his master in courtesy" Both partiee ie
one step further as "law by are
International law without any arbiter is
contra
describes Law ion in
course.
in
in anun
Judges of their own these rules as being, reality
reality
thing
terms. It is
impossible to regard ional
International Law
Law is 1
moral Code of Nations..
more than
"the Holland calls Internatin
remark,
In his oft-quoted Justice V.R. Krishn
only by analogy." of jurisprudence.
Law as "the vanishing point has also remarked
member of Indian Law Commission
Iyer, formerly is still the vanishing point of
"It is a sad truism that International Law that Holland's view that
now generally agreed
jurisprudence." But it is
jurisprudence is not correct
International Law is the vanishing point of
Holland's view is based on
the proposition that there are no sanctions
behind International Law.
Internationai Law as "imperfect posi-
Savigny.-Savigny calls
tive law.
(International law) can be
According to Lard Salisbury.-"It to in the phrase law'
enforced by no tribunal and, therefore, apply
to

is to some extent misleading.

In R. v. Keyn, (1986) 2 Ex. D. 68, the Court observed, "Strictly
speaking, International Law is an inexact expression and it is apt to
Law implies a law giver,
mislead, if its inexactness is not kept in mind.
and a tribunal capable of enforcing it and coercing its transgressors.
no tribunal
But there is no common law giver to sovereign States;and
has the power to bind them by decrees or coerce them if they
trans-

gress."
criti-
Arguments in favour of International Law.-The above
cisms of International Law have been repelled by Oppenheim, Starke,
Brierly, Hall, Lawrence, Pollock, Maine and a host of other authorities.
The decision as to the legaB nature of International Law much depends,
upon the meaning of the term "law itself. According to Oppenheim,
International 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." So conceived, the essential conditions
for the existence of law are: () a community, (i) a body of rules tor
human conduct within the community, and (iii) common consent ot n
community that these rules be enforced by external power. The chie
exponents of this theory are Anzilloti, Triepel and Oppenheim. But tnis
theory fails to explain the basis of customary International Law
As pointed out by Starke, in practice, it is not necessary topr
that the other States have given their consent in regard to a speci
rule of International Law. Now, we should test the validity or e

International Law within the framework of this definition.

NATURE AND SCOPE
13

(a) That the family of nations is a community, cannot be doubtecd

are innumerable are interests which knit together and which create
since

nctant intercourse amongst individuals of civilized States and their

onstani

subjecis.
(b) The family of Nations is a community with rules of conduc
hoth customary (ike those regarding the diplomatic immunities) and
conventional: e.g.. (The Declaration of Paris of 1856; The Hague
Regulations of 1899 and 1907; The Geneva Convention of 1949 etc.
etc.).
(c)Nor does International Law lack sanctions. They range from
sanction of the U.N.
the vigilant and evergrowing public opinion, the
intervention by
the attempis at the establishment of collective security,
sympathetic States, to the last argument of States--violence, self-help
and consequent war.
affairs or
At present no State can keep itself apart from the
of transport and
activities of the world. Because due to development
the worid
communication and other scientific inventions have brought
more and more closer to each other.
definition and spirit of
Thus, for International Law within the
further arguments in favour of Inter
law, we are now able to advance Austinian view in the course
national Law along with check-mating the
the juristic nature of
of our discussion. The points which go to support
International Law are given below:
Frederick Pollock: If International Law
1. In the words of Sir
framers of State concerning
were only a kind of morality, the papers
on moral argument. But
foreign policy would throw all what strength
their
the
as a matter of fact, this is not they do. They appeal not to
but to precedents, to treaties, and to
general feeling of moral rightness, statesmen
assume the existence among
opinions of specialists. They from moral obligation
publicists series of legal as distinguished
and a
nation's-Pollock : Oxford
Lectures (1890), p. 18.
in the affairs of Law by citingg
the juristic nature of International
Brierly also supports 1928.
tne invasion of Belgium, 1914, and
the bombardment of Corfu in
out that modern
historical jurispru-
2. Prof. Starke has pointed It has
force of Austin's general theory of law.
nce has discounted the communities without a formal legislative
DCen shown that in many was in force and being observed, and that
authority, a system of law operation from the law of any
Such law did not differ in its binding
ate with a true legislative authority.
Central Gold Mining
Co., Lid. v. Rex, (1905) 2 K.
In West Rand
be true that International law
B Lord Alverstone, C. J. held it to
and that whatever had received the
Fmed a part of the law of England nations must International
be called
m o n consent off the civilised
 PUBLIC INTERNATIONAL LAW
14 apnl.
be acknowledged and
and would
in that character by
Law,
English Municipal Tribunals.

indecd in praclice
expressly treat Into
the ordinary law i a
ordinary law bindiling
countrics
3. Certain the same force as
Law as possessing for cxample
for
tional
Under the
Constitution of the U.S.A., ,
example, trea
their citizens. Sec. 2).
law of the land" (Article VI,
ties are "the supreme
Law has been a
binding force of International as-
4. The legally in International con.
nations or the woria
serted again and again by UN
illustration, the Charter creating the
ferences. To take one
drawn up at San Francisco
in 1945 in both explicitly and implicitlu
International Law.
based on the true legality of
5. "Violations of International Law
are certainly frequent, esDe-
war. But the offenders always ry
to
prove that their acts
cially during
do not constitute a violation and that they have a right to act as they
do according to the law of nations, or at least that n0 rule of nations is
their acts. The fact is that the law of
States while breaking
against
nations, never deny its existence, but recognize 1ts existence through
the endeavour to interpret the law of nations as justifying their conduct.
And although the frequency of the violation of International Law may
strain its legal force to breaking point the formal, though often cynical
affirmation of its binding nature is not without significance"- Oppen
heim.
6. According to Lord Russel of Killowen, "International Law
properly so called is only so much of the principles of morality and
justice as the nations have agreed shall be part of those rules of conduct
which shall govern their relations with one
another."
7. Sir Henry Maine, while
law, observes, that "men do sometimes
criticising the Austinian conception of
ment but compared with the mass obey rules for fear of punish-
of men in each
is but small,
probably it is confined to those community this class
what are called
iargest number of rules which men obey are the
minal cases. The cri-
unconsciously from a mere habit of mind." obeyed
to account for the Thus Austinian theory fails
follow the Austin's customary rules of International Law, and it we
theory common law of England will
validity, which are mostly followed in the lose its legal
8. No doubt, world.
International
than the State law but Law is less explicit and less
nevertheless imperativ
partiy by the conviction that it is it is law inasmuch as it is enforce
influences which make it good and
difficult for a man orpartly of by those subtle
defiance of strongly held views of those body men to act
Compulsion alone is not the sanction with whom they assOca
consideration of justice as much
not absent in
behind law. It is enforcea Dy
as of force.
International Law. Nations areThe element of fear is a
afraid that a gross viol
NATURE AND SCOPE 15

rules of conduct might make the ncmesis fall upon

International.
t i o nof Charter are such
The "enforcement measures" cnvisaged in U.N.
m. The "enforcem

provisions. The part played by

United Nations in Korca and
nature of International
crisis is ample proof of binding
s a n c t i

Suez Canel
Sucz

Law. International
above discussion shows that
Conclusion.-The
may often
"States violate International Law, just as,
I aw is a true law. but no more than
individuals do,
violate municipal law,
individuals are above the
their violations by claiming that they
State defend Hurst also.
view of Brierly is endorsed by Sir Cecil
law."-Brierly. The Law regard
International
modern writers on International
Almost all
law.
Law as true which has been
arguments, an age
But inspite of these learned Spain, Austria, Czecho-
fates of Abyssinia, China,
disillusioned by the and recently of Congo,
Finland, Manchuria, Hungary, summit-
slovakia, Poland, Nations, the mockery of
at the United
the lipservices paid conference, the display
of power
failure or disarmament discri-
talks, dismal the continuance of racial
two rival blocks, and
politics by the the words
Africa and other States,
hardly distrusts law
by South making,
mination
"International Law is law in the
Jethrow Brown
that in contradis-
of make itself good
struggling to of
struggling for existence, morality." The
above observation

tinction from international a bitter truth and

naked truth,
a hard truth, a
Jethrow Brown contains and jurisdiction
Law lacks a potent judiciary. The power on
International limited. Much depend
of Justice are very
of the International Court and its decisions
are binding
States,
the sweet will of, the dominating
concerned and no others.
on the parties point of jurispru-
"International Law is the vanishing
I n t e r n a t i o n a l Law ?
Q. 6. Is it a correct
estimate of
dence-(Holland). comments thereon.
own
Explain the statement and offer your
explained.-According
to Prof. Holland,
statement observed
Ans. The
are voluntarily
though habitually
means "such rules as International society."
aw in its dealings with the rest of the
by every State International law as law by courtesy. Both parties are
He describes contradiction in
arbiter is
Law without any in reality, any
Juages of their own cause.
to regard these rules as being, Interna
erms. It is impossible * **n *
terna
Nations
ning more than moral Code of oft-quoted sentence he further
"the
his
onal Law is law Law by analogy". In point of Jurisprudence.
calls International as "the vanishing "the Law as
two for calling Intenational
reasons
Holland assigns it lacks an arbiter
first because
of jurisprudence" ie.,
i n g point themselves (hence not law at present), and secondly
aDOve the parties assimilated to true law by
as it tends to become
ecause in proportion
 LAW

the aggregation of State into a larger society (super State) it ceases to

be itself and is transmuted into the public law of a federal Govern
ment." Lord Salisbury too has maintained that the law which cannot
be enforced by a superior authority cannot stay longer. The law which
lacks sanction to get compliance to it cannot but fade away into obli
vion. International Law has no machinery and no sanction to punish its
transgressor and hence it cannot maintain iis existence due to its
requent violations with impugnity. But it is wrong to say that there
are no sanctions at all in International Law ; Even if we think that there
are no sanctions in International Law because as pointed out, sanction
is not the essential element of law. Violations of International Law aare
certainly frequent during war especially, but the offenders always try
to prove that their acts do not constitute a violation.
Holland's view is shared by many authorities, for example, Lord
Salisbury remarks, "It (International Law) can be enforced by no tri-
bunal and therefore to apply to it the phrase law is
to some extent
"It is a sad
misleading" Justice V. K. Krishna Iyer has also remarked,
truism that International Law is still the vanishing point of jurispru-
I.J.I.L.
dence". (See "Mass Expulsion As Violation of Human Rights",
Vol. 13, page 169). When one sees the practical working of the present
to the conclusion arrived at
day International Law, he is inevitably ledInternational law. They place
by Holland. States bave scant regard for in war time States
their self-interest above everything. Particularly
throw all cannons of International Law to wind.
So having regard to the absence of any established legislative,
International Law and frequent disre-
executive and judicial organ of
Holland's remark appears to be true.
gard of international rules,
Comments.-Holland's observation is an outcome of his being
the adherentof Austinian theory of law. Austin and his partisans
International Law because it does not fall
doubted the existence of
their theory of a law. According to Austinian
within the four corners of
a command issued and enforced by the sovereign
theory every law is to be '"Van-
power. Judged by this standard, International Law appecars
Holland's view has been vehemently
ishing point of jurisprudence.
criticised by the protogonists ot International Law. The Austinian the-
Holland's View stands exposed now and does
ory which is the basis of
u n i v e r s a l acceptance.
not command
observations controverting Holland's view:
Let us examine
,Holland regards International Law as the vanishing point of
in is judge or arbitrator
Jurisprudence because his view, there no International Law
to

decide international aisputes and ne rules of ard

This view is far from the truth in

Followed by the States in courtesy.
developed ciangea character
and of International law
iew of the
NATURE AND SCOPE
17
Aay,
Loda
It is wrong tosay International Law is without a Court of
ou decide Iaternational disputc becausc the Law
to cstablishment of Permanent
the league of Nations Permanent
dshment
under the
Court of International Justice under
Court
and there-
after International Court Justice which is the successor of nd
of there
Permanent
Cort of International Justice, is an ample proof of the fact that there
is a World court to decide international disputes among States.
2. According to Sir Henry Berkley, C.J. a law may be established
and becomes international, that is to saY, binding upon all nations,
the agreement of such nations to be bound thereby, although it may by be
impossible to enforce obedience thereto by any given nation party to
the agreement. The resistance ofa nation to a law to which it has agreed
does not derogate from the authority of the law because that resistance
cannot be overcome. Such resistance makes the resisting nation a
breaker of the law to which it has given its adherence, but it leaves the
law to the establishment of which the resisting nation was a party, still
subsisting. Could it be successfully contended that because any given
person or body of persons possesses for the time being power to exist
an established municipal law, such law had no existence ? The answer
to such a contention would be that the law existed, though it might not
for the time being be possible to enforce obedience to it."
:3. Brierly observes, "The existence of some kind of International
Law is simplý one of the inevitable consequences of this co-existence
in the world of a plurality of States necessarily brought into relations
with one another. The best evidence for the xistence of International
Law is that every actual State recognises ti t it does exist and that
itself under an obligation to observe it."
is
Conclusion.- Holland's observation is so pessimistic and with-
Out substance that no one easily endorses it. The view which he took
may be rather true in his own age. But it cannot find support now
International Law is being strengthened internationally. Various law
making treaties, resolutions of the International Law Commission, the
resolution of the General Assembly of the U.N.O all go to supply the
legislative part of the International Law. International Court of Justice
at Hague adjudicates upon the disputes between States and the "en-
Iorcement measures" and the principle of "collective security" provides
sanction behind International Law. However, it must be admitted that
nternational Law is a weak law but it does not mean that it does not
exist and has no future. The future of International law is bright. Hence
une dictum that International Law is "the vanishing
dence is uncalled for and is one sided. The true point
of
position jurispru-
may be
Summed up in words of Paton when he says, "It is too narrow to
say
t international Law does not exist but in the present state of civili-
zation it is
tragically ineffective."
Please see Question 5 also).
 Q.7. Why is International Law a weak Law ? Suggest wavs
and means to inmprove it.
Ans. Weaknesses of International Law-Prof. Starke has
pointed out "The cumulative evidence against the position taken by
Austin and his followers should not bind us to the fact that Interna
tional Law is a weak law. It is mainly customary. Existing International
Legislative machinery operating mainly through law making conven-
tions is not comparable in efficiency to State Legislative machinery. In
spite of the achievement, the United Nations in re-establishing a World
Court under the name of the International Court of Justice, there still
is no universal compulsory jurisdiction for settling legal disputes bet-
ween States. Finally, many of the rules of International Law can only be
formulated with difficulty, and, to say the least, are quite uncertain
being often incapable of presentation except as a collection of incon-
sistent State practices, while there are, in different areas of the subject,
fundamental disagreements as to what the rules should be."
In the Queen v. Keyn. Lord Coleridge observed: "Law implies a
law giver, and a tribunal capable of enforcing it and coercing its trans-
gressors. But there is no common law giver to sovereign States and no
tribunal has the power to bind them by the decrees or coerce them if
they transgress."
According to Brierly, "The two mostserious short-comings of the
which
present system are the rudimentary character of the institutions
exist for the making of and the application of the law, and the narrow
restrictions on its range."
Paton observes, International law "is very weak on the institu-
tional side-there is no legislature, and while a court exists, it can act
only with the consent of the parties and has no real power to enforce
its decisions. It is urue that International Law of peace is seldom bro-
ken, but once grave issues arise we see flagrant disregard of accepteed
rules. The public opinion of the world may be a factor not lightly to
be ignored, but it is harder to deal with a nation that is a law-breaker
thanto expel a primitive man from his community hence while primi-
ive and International Law both lack institutional machinery, the sanc
tion of the formen are really more effective since they are brought to
bear on the individual and not on the nation."
"Internaional Law found in most part is unwritten and lacks
sanctions"-Lords J. in the S.S Lotus.
Pit Cobbet also shares the above remarks. He observes, "As
between States which are independent and legally equal there can be
of course no common law-making body having power to bind them by
its decrees nor is there any common Tribunal except the International
Court of Justice having authority to interpret and apply law between
 NATURE AND SCOPE
19

parties at variance, to compcl resort to the tribunal and to give effect

to their judgment. For these reasons International Law is not only less
imperative and less explicit than State law, but it also lacks the coer
cive force of State law".
Conclusion-Thus we can conclude on the basis of above dig
cussion and on following reasons that International Law is a weak
law
(1) t is chiefly customary and hence unwritten.
(2) The present international legislative machinery is not ade
quately efficient to keep it abreast of the growing needs.
(3) Although there is the International Court of Justice there is
no universal compulsory jurisdiction for settling legal disputes between
States.
(4) Many of the rules of International Law are quite uncertain.
5) Looking to the present trend towards a world federation,
International Law, in the form it is today, is not wide enough to meet
the requirements of the world. Thus International Law has failed to
maintain order and peace in the world. Recently, International Court
of Justice could not decide the dispute of Iran and America in connec-
tion with the 57 people of America, who were kept as hostage by Iran
for a long time till United States paid a stipulated sum for their release
and return to homeland.
(6) Absence of codification. Although International Law Com-
mission is doing Yeoman service to the world community in the matter
of codification of international rules, yet it has still to make inroads in
other fields of international law.
(7) International Law does not authorize the family of the nations
or, for the matter, an international organization to intervene in the
matters which are essentially within "the domestic jurisdiction" of a
State and this limits its jurisdiction and influenee. The U. N. O. has
jurisdiction to interfere within the domestic jurisdiction even when a
State violates any matter likely to lower the human
dignity or status or
even when it affects the interest of other States. A more serious limi-
tation on the range of International Law is that international
economic
relations fall within the sphere of domestic
jurisdiction. Tariffs, boun-
ties, trade markets and the like are the matters which,
although falling
outside the ambit of International law underlie the rivalries of modern
States and provide the causes of their
disputes.
(8) Reluctance of States to submit to International Law if it is
against their interest is a great hindrance to its growth and
develop-
ment. As observed by Schwarzenberger, "The subjects of International
Law are highly self-centred and not
inclined to delegate to the interna-
 20 PUBLIC INTERNATIONAL LAw

tional society functions which however inadequately, they themselves

reliance on their own power is no
can discharge, and their ultimate or strong legal
congenial to the growth of either comprehensive
a

system."
the weakness of International Law
(9) Prof. Oppenheim attributes'above' the States.
to its being law 'between' and not
International Law lacks an effective ex-
(10) Last but not least, rules.
ecutive machinery to enforce its

How to improve International Law approaches to improve

Schwarzenberger suggests four possible
International Law :
first approach is that of re-
Reform or Restatement.-The
y International Law. It is pointed
out that the
statement or reform of
law is liable to restrict its
restatement of the existing International reform of law
hence not helpful. Moreover, every
improvement and which it is
international order without
should be related to the type of
The U.N.O has adopted the Bill of Human Rights but it
bound to fail. the world State.
account of absence of
has been practically useless on
Codification.-Codification means
a systematic presentation
(2) have been made to codify International
of the rules of law. Attempts
Nations and various other
the League of Nations, the United
law by been no satisfactory progress.
Such attempts
agencies but there has Law pattern signi-
in certain cases. Common
have done positive harm
international judicial institution should have
fies that the decisions of Interna-
In this direction, the role of
more than persuasive authority. commendable
as it has done
Law Commission is quite significant
tional international rules on many topics
and is
works for the codification of
still effective for the same.
order to strengthen Inter-
(3 More goodwill among States.-In
essential that there should be more co-operation
national Law it is very
existence among the States.
and a keener desire for peaceful
law and order.-The States pay scant re
4 More respect of and this is greatest obstacle in the way
of
international rules
gard to
should be given up.
International Law. This habit
above reformative steps mentioned by
(5) In addition to essential that enforcement measures must
Schwarzenberger it is also basic
remarked by Dr. Negendra Singh, "Two
be strengthened. As the exis-
for the establishment of Public order:
pillars are necessary the
Lence of proper law
and the machinery for enforcing it, including
inter-State sphere, order can be main-
sanctions behind the law. In the
well-defined and well-codified interna
tained if there is in existence a
enforce it."
tional law and an effective agency to
NATURE AND SCOPE
21
6)The International Court of Justice must be
given compulsory
iurisdiction over all international disputes and for criminal
national Court of Criminal Justice cases Inter-
must be created.
(7) The powers of International Law Commission should be
nanded in order to suggest ways to make International law more ex-
able in accordance with the changing times and circumstances. adopt.
It
should be entrusted to codify other branches of international law,
which has not been considered by it.
8 In order to strengthen the International law, the doctrine of
judicial precedent should be applied.
9 The Ceneral Assembly must be empowered to make, alter and
revise the law.
10) An International Criminal Court should be established to
adjudicate cases relating to International crimes, as in moderm times,
international terrorism has grown tremendously.
) A n International Police System should be established to
check international crimes and to enforce the rules and principles of
International law,
(12) In order to intervene in State-matters United Nation's Char
ter should be amended, which affect the International Community.
,