Public International Law ARNAB KUMAR DAS Port City International University, Chittagong, Bangladesh. SID: LLB 00305037

1. IS INTERNATIONAL LAWA TRUE LAW?
Law is that element which binds the members of the community together in the adherence to
recognized values and standards. It is both permissive in allowing individuals to establish their
own legal relations with rights and duties, as in the creation of contracts, and coercive, as it
punishes those who infringe its regulation
International law, as understood among civilized nations, may be defined as consisting of those
rules of conduct which reason deduces, as consonant to justice, from the nature of the society
existing among independent nations; with such definitions and modifications as may be
established by general consent (element of international law by Wheaton). It can be regarded
as laying down as established practice of international law that in the absence of stipulation a
new state takes over and becomes bound by the liabilities of its predecessor.
The expression ‘International Law’ and ‘Law of Nations’ are synonymous and are equivalent
terms. Professor Charles Cheney defines International Law as that body of law which is
composed for its greater part of principles and rules of conduct which states feel themselves
bound to observe, and therefore, do commonly observe in their relations with each other.
While according to Oppenheim, Law of Nations or International Law is the name for the body of
customary and treaty rules which are considered legally binding by States in their intercourse
with each other.
Public international law (or international public law) concerns the relationships between
sovereign nations. International law consists of rules and principles which govern the relations
and dealings of nations with each other. It is developed mainly through multilateral
conventions. Its modern corpus started to be developed in the middle of the 19th Century.
International law is divided into conflict of laws (or private international law) and public
international law (usually just termed as international law). The former deals with those cases
in which foreign elements obtrude, raising questions as to the application of foreign law or the
role of foreign courts. For example, if two Englishmen make a contract in France to sell goods
situated in Paris, an English court would apply French law as regards validity of that contract. By
contrast, public international law is not simply an adjunct of a legal order, but a separate
system altogether.
NATURE OF INTERNATIONAL LAW
One of the most controversial issues that has long been debated and discussed and on which

2. the opinions of the jurists are sharply divided since the beginning of the sciences of law of
nations concerns the status of International Law. Although rules regulating the relations of
States are referred to International Law in practice consistently since 200 years, 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.
Austin’s View
According to Austin, 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, 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.
Logically, if the rules concerned did not in ultimate analysis issue form 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 as legislative power or indeed with any
determinate power over the society of the States, Austin concluded that international law was
not true law but ‘international positive morality’ only analogous to the rules binding a club or
society.
Oppenheim’s View
Oppenheim 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,
so that the community may be orderly governed. 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

3. concerned.
ANALYSIS
Public international law covers relations between states in all their myriad forms, from war to
satellites, and regulates the operations of the many international institutions. It may be
universal or general, in which case the stipulated rules bind all the states (or practically all
depending upon the nature of the rule), or regional, whereby a group of states linked
geographically or ideologically may recognize special rules applying only to them.
The rules of International law must be distinguished from what is called international comity, or
practices such as saluting the flags of foreign warships at sea, which are implemented solely
through courtesy and are nor regarded as legally binding. Similarly, the mistake of confusing
international law with international morality must be avoided. While they may meet at certain
points, the former discipline is a legal one both as regards its contents and its form, while the
concept of international morality is branch of ethics. However, this does not mean that
international law can be divorced from its value.
CONCLUSION
It may be concluded that at present, World is, in reality, regarded as an international
community. 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. These include the recognition that certain
rules have the character of jus cogens, which reduces the area for the operation of purely
consensual rules, and establishes that within general body of rules of the International Law
there exists superior legal rules, with which rules of a lower order must be compatible.
Practice of states suggests that they consider themselves bound by such rules. 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. Security Council of the United Nations is empowered to take measures to enforce
the decisions of the Court, if the aggrieved party seeks the help of the Council.

4. 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. In the light of these developments, perhaps one would not hesitate to
call International Law as a true law even if Austin’s definition of law is accepted.[]
Bibliographies:
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:AsiaPress,ThirdEdition,1995.
6. http://en.wikipedia.org/wiki/international_law