CSS International Law Solved Paper 2017 Question No 2

International Law is Oxymoronic. Argue and explained in detail

Introduction

The definition and nature of International Law have long been discussed and debated; ever since the subject itself came into being. International Law, as described by Oppenheim, is 'a body of customary and treaty rules considered legally binding by civilized states in their intercourse with each other.' He further included the principles and rules of conduct and recognized functioning of international institutions, individuals and non-state entities. However, the subject is still contested as either a code with moral force only or as binding upon states, non- state entities and individuals.

International Law is not Law

Hobbes, Bentham and Austin are among the prominent jurists who are of the view that International Law is not truly a law and hence, not truly binding on states. According to Austin, "law is command of the sovereign and is enforced by a superior authority'.

Hence, unlike organs of state, international law lacks:
  1. Effective legislative machinery
  2. Executive power
  3. Potent judiciary
  4. Sanction

a. Austin's Positive Morality

Austin views International Law as analogous to rules binding a club or society which applies to 'conscience only'. 'Positive', as it means in jurisprudence, is that rules are presently enforceable. The pertinent examples include Universal Declaration of Human Rights (UDHR). Moreover, ICJ in South West Africa case observed that moral principles can be taken into account to a certain extent.

However, Austin has been criticized by Professor Oppenheim for not covering unwritten or customary part of municipal law. According to Frederick Pollock, states appeal to treaties' precedents instead of morals. For instance, the North Sea Continental Shelf case recognized need of just and equitable decisions.

b. Holland's 'Vanishing Point of Jurisprudence'

According to Holland, international law and jurisprudence are parallel, therefore, separate and distinct. It is followed by rules of courtesy and has no sanction.