International law is a subject which over the last 150 years has endured crisis of identity and it has developed in a number of ways. Today, when open the newspaper, listen to the radio or watch television, people will be confronted with events having significance in international law. International law is involved in many of the events occurring in our society and it is so important to understand international law.
This paper will discuss the origins of international law by examining a number of theories, which have offered explanations as the nature of international law, in order to analyze whether international law is real law or instead it should be regarded as a branch of ethics or morals. The paper contains three parts. For examining whether international law is law, the paper begins with the description of the characteristic elements of law as a general phenomenon, in order to see whether international law displays similar characteristics.
The Austin's theory is discussed as influential theory in shaping international law. Secondly, some arguments against Austin's theory are addresses. Finally, a conclusion is drawn, based on all theories and arguments which been discussed in the paper. The term international law is descriptive and connotes a particular species of law (Harris 1997:1). A rang of approaches and debates about international law have extremely influential in shaping international law.
One of the early jurists was the nineteenth-century English philosopher Austin, whose ideas on the juridical basis of law had a considerable impact on the development of legal theory (Purvis 1991:82). He reasoned that "proper law" is "positive law" and consists of "a series of commands or edicts issued by a sovereign who habitually received obedience from subjects obeying such commands" (Sam, Ryszard, and Tsamenyi 1997:5). He stated that "the sovereign as an absolute authoritative institution that was indivisible and not subject to any other entity" (Clarke 2003:9).
He thus conceived of law as the positive creation or result of the will of the sovereign. He also reasoned that "strictly speaking, every law properly so called is a positive law" (Clarke 2003:10). Thus, Austin's attitude towards international law was colored by his theory of law in general. Austin's theory is one of the theory which has "enjoyed wide acceptance is that international law is not true law, but a code of rules of conduct of moral force only" (Starke 1989:18).
Dixon and McCorquodale (1991:3) suggest, according to Austin's theory, laws are the result of edicts issuing from a determinate sovereign legislative authority. Therefore, logically, if the rules concerned did not in ultimate analysis issue from a sovereign authority, which was politically 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 international law were almost exclusively customary", Austin concluded that "international law was not true law but positive international morality only, analogous to the rules binding a club or society"
(Starke 1989:19). D' Amato A.(1987:16) argued that, while Austin's perception of law may well reflect some aspects of nineteenth-century England, and indeed, some aspects of modern-day law making, even in Australia, it is far from an accurate description of law as a social phenomenon. Glanville (1945 cited in Sam, Ryszard, and Tsamenyi 1997:7) takes a different approach to the definition of law. He argues that a word such as "law" has "multiple meanings in multiple contexts".
Consequently, the only intelligent way to deal with the definition of a word of multiple meaning like law is to recognize that the definition, if intended to be of the ordinary meaning, must itself be multiple (Glanville 1945 cited in Sam, Ryszard, and Tsamenyi 1997:7). If Glanville's approach were adopted there would be no difficulty in resolving the issue as to whether international law is law, because the word law can be used in one sense to describe the rules in the domestic setting, and in a different sense to describe those in the international context.
Thus, the phrase international law uses the word law to describe the orderly arrangements in the international sphere. To reply to Austin's view, some other perspectives are discussed as well. Charlesworth, Chinkin and Wright (1991) state, Modern historical jurisprudence has shown that in many communities without a formal legislative authority, a system of law was in force and being observed, and that such law did not differ in its binding operation from the law of any state with a true legislative authority.
Subsequently, Starke (1989:19) argues that Austin's views might be right for his time, but are not true of present day international law. In the present century, "a great mass of international legislation has come into existence as a result of law-making treaties and conventions", and the "proportion of customary rules of international law has correspondingly diminished" (Starke (1989:19). Indeed, a significant number of customary rules of international law have now been formulated as rules in multilateral conventions, for instance, in the case of the three Vienna Conventions of 1961.
Finally, Hall (2003:4) clarifies, questions of international law are always treated as legal questions by those who conduct international business in the various foreign offices, or through the various existing international administrative bodies. In other words, "the authoritative agencies responsible for the maintenance of international intercourse do not consider international law as merely a moral code" (Hall 2003:4). As Pollock (1980 cited in Starke 1989:19) argues that: " if international law were only a kind of morality, the framers of state papers concerning foreign policy would throw all their strength on moral argument.
But as a matter of fact, this is not what they do. They appeal not to the general feeling of moral rightness, but to precedents, to treaties, and to opinions of specialists. They assume the existence among statesmen and publicists of a series of legal as distinguished from moral obligation in the affairs of nations". Henkin (1979 cited in Dixon and McCorquodale 1991:3) also argues that although international law have little comparable to executive law enforcement in a domestic society, they are effective forces, internal and external, to induce general compliance.
It means that international law is performing a useful and indeed a necessary function in international life in enabling states to carry on their day to day intercourse along orderly and predictable lines. Moreover, LIAC (2001) notes, "certain countries indeed in practice expressly treat international law as possessing the same force as the ordinary law binding their citizens". Under the Constitution of the United States of America, for example, the United States Supreme Court, which is the highest Court of the land, has repeatedly recognized the constitutional validity of international law.
To sum up, it appears to show that the theory that international law is just a conduct of ethics or morals cannot be accepted today as accurate in all respects. It can be easy to being the study of international law by "either denying that is exists at all because it seems to have no impact on our lives, or claiming that it does not have all the elements of national law, particularly the element of enforcement, and so, international law is not real law" (Clarke 2003:12). Neither argument is accurate.
Clarke (2003:12) identifies that "International law comprises a body of rules that are used to regulate the conduct of human organizations, as represented by states and other subjects of the law". International law is principally created through the common consent of states in the form of custom or through international agreement. Whichever way it is created, states "recognize the enforceability of international law" and use it to "regulate" their relationship (Sam, Ryszard and Tsamenyi 1997:9). Disputes between states are usually settled within the framework of international law, which the states regard as binding.
The necessity for international law arises from "the need to ensure a process that regulates competing demands and establishes the framework for predictable and agreed community behavior" (Charlesworth and Chinkin and Wright 1991:627). It is true that in some cases, the behavior of a state or an entity in the legal system may be inconsistent with agreed conduct. In such cases, international law fulfils another need by "providing the framework for dispute resolution and remedial action" (Hall 2003:5), and thus helps to ensure order in the community. Conclusion
There have been many debates about the question "is international law really law? " compelling many international lawyer to justify their discipline. The characterization of international law really depends on different perspectives. This paper has introduced a rang of approaches and debates about international law. Positivism law approach is extremely influential in shaping international law. Austin's theory has seems to be one of the theory which has enjoyed wide acceptance is that international law is not true law, but a code of rules of conduct of moral force only.
But others argued that Austin's views might be right for his time, but are not true of present day international law. Even international law have little comparable to executive law enforcement in a domestic society, they are effective forces to induce general compliance. It means that international law is performing a useful function in enabling states to carry on their day to day intercourse along orderly and predictable lines. Word Count: 1489 words (exclude reference)
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