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vustudents
09-05-2012, 05:07 PM
Q. (a) Is international law a proper law.
(b) Discuss the strengths and weakness of international legal system. (2003)(2004)
Q. Is international law a proper law. (2006/A)
1. Introduction:
International law is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe in their relation with each other. there are two schools which have been striving for supremacy of each another one school advocates that international law is not a law in the true sense and other says that it is really a law.
2. Definition of law:
Austin:
A rule of conduct imposed and enforced by sovereign in the form a command which obliges the subject to a course of conduct.
Salmon:
Law is the body principles and rules which by its influence on human will serves as social cement and motivating force toward social progress. these principles are recognized and enforced by state in the administration of justice.
Essential conditions for law:
Following are the essential conditions for law.
(i) A body of rules.
(ii) A community of people.
(iii) A consent to enforce it.
(iv) An enforcing agency.
3. Whether international law is a law in the true sense of term:
There are two schools on this question one maintaining that international law is no law, other school saying that international law is a complete law. the schools are as under.
(i) Positive school.
(ii) Historical school.
I. Positive school:
Positive school is led by John Austin according to him international law is no law but rules of morality governing international relation between states. he says also that it is a code of rules of conduct of moral force.
(A) Arguments by positive school:
Positive school presents the following arguments.
(i) No law giving authority:
International law did not emanate from a law giving authority.
(ii) No sanction:
There is lack of sanction for enforcement of international law.
(iii) No executive authority:
There is no executive body which may enforce the decisions of the international court of justice which is so called court of this system.
(iv) Absence of legislative machinery:
There is absence of an effective legislative machinery in international law.
(v) No determinate political authority:
There is no determinate political authority which may compel the states to observe the rule of international law.
(vi) Vague and uncertain rules:
The rules of international law are vague and uncertain.
(vii) Limited scope:
it has limited scope. must of the rules are in the form of treaties.
(viii) Limited jurisdiction:
It has limited jurisdiction. international court of justice has no compelling jurisdiction.
II. Historical school:
the second school is called historical school. it is led by oppenheim and sarke who say that international law is really law in true sense because observance and not enforcement is essential element of law. modern international writers hall and lawrence also say that international law is real a law in true sense. it is habitually treated and enforced as law. it is derived form customs treaties judicial decisions and juristic works.
(A) Arguments by historical school:
Historical school presents following argument:
(i) International conferences and conventions:
International law is treated a law in true spirit by international conferences and conventions.
(ii) Acceptance by states:
States do not deny the existence of international law.
(iii) Recognition by international court of justice:
International court of justice recognize international law. it has to decide the disputes submitted to it accordance with international law.
(iv) Recognition by united nation:
International law is recognized by the united nation. it is based on the legality of international law.
(v) Partial sanction force:
So for as sanction in law is concerned international law does not completely lack it.
(vi) Practice of states in treating international law as their own law:
In some countries international law is treated as a part of their own law. it is ascertained and administered by the courts of justice of the appropriate jurisdiction of the states.
(vii) Violation does mean presence of law:
Every law is violated even state or municipal law is also violated. the violation does not mean that there is no law. although international law is frequently violated but it does not means that international law is not law.
(viii) Binding nature of decision of international court of justice:
The decisions of international court of justice are binding upon the parties to a dispute. the decisions of international court of justice can also be onforced.
4. Suggestion for improvement of international law:
(i) Grant of compulsory powers to international court of justice:
The international court should be given compulsory powers and jurisdiction over all international disputes between states.
(ii) Establishment of an effective international criminal court:
International crimes should be adjudicated by international criminal court so for this purpose there must be an effective criminal court at international level.
(iii) Proper codification of international law:
The codification is always an advantage of law international law should be property codified.
(iv) Establishment of international police:
International police system should be established in order to enforce a system to eradicate international crimes.
(v) Proper international investigation system should be promoted:
An international investigation system should be promoted.
(vi) Independent prosecution system:
Independent prosecution system should be developed in modern techniques relating to international crimes.
(vii) Expansion of powers of international law commission:
The powers and role of international law commission should be expanded.
(viii) Enhancement of legislative power of general assembly:'
The legislative powers of general assembly must be enhanced.
(ix) Encouragement of law making treaties:
The law making treaties should be encouraged for better scope of the international law.
(x) Application of doctrine of judicial precedents:
The doctrine of judicial precedents should be applied in international law for strong international system.
(xi) Development and encouragement of international brotherhood:
International brotherhood should be developed and encouraged.
5. Conclusion:
To conclude it can be said that international law is body of rules and principles of action which are binding up civilized states in their relation with one other. although there are some drawback in international system but it is a proper law. the scope of international law has widened. it deals with immense variety of matters.