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• A discussion on whether international law is a law or not is important to understand “The Nature of International Law”
• The real controversy depends upon the definition of the word “law” and according to Professor Glanville Williams, the largest jurisprudential controversy as to the word law is a verbal dispute and nothing else.
• Views of Hobbes, Austin and Pufendorf->

Their views were on the same page and can best be described via Austin’s view:

• According to Austin, law is command of sovereign backed by sanction/punishment.
• Therefore, International Law cannot be included in the category of law.
• According to Austin, law is given by a “determinate superior political authority” to political inferiors and is backed by a coercive enforcement agency.
• And for Austin/Hobbes-> Sanction occupies an important place in the enforcement of law and people follow law due to sanction/coercive element inherent in law.
• And according to these jurists, international law lacks an effective legislative, executive, judiciary and above all effective sanctions, which is necessary for the enforcement of law.
• Crux->That’s why international law is no law.

Criticism of Austin’s definition of law->

• According to Professor Oppenheim-> Austin’s definition is not correct as it does not cover that part of municipal law which is termed as unwritten or customary law. Example-> English Common Law is an unwritten law established via judicial precedents.
• According to H.L.A Hart-> Sanction is not the acid test (not the essential element) to declare whether international law is a law or not.
• Views of Oppenheim, Brierly and H.L.A Hart-> They all have criticized Austin’s definition of law.

Prof. Oppenheim’s definition of law->

• He defined law as which presupposes the essentials of 3 pre-requisites ->
  • a.) a community
  • b.) a body of rules; and
  • c.) common consent of the community.
  • Note-> That if necessary these rules shall be enforced by an “external power”.

• The 3 requirements of this definition are satisfied by international law, to a greater or lesser extent.

Example-> States’ of world have constituted-

• a.) An International Community
• b.) With body of rules for their conduct; and
• c.) there exists “common consent” of the community.

Conclusion-> Thus, international law is a “true law” and it exists and it works, not perfectly or always but well enough and often enough to make a considerable difference in the conduct of international affairs. It is also true that international law is a weak law but it is considered weak only when it is compared with municipal law (domestic law). Otherwise, it is working fine in its “horizontal setting”.

Points to keep in mind->

• In practice, international law is recognized as law by states’ and they consider it binding on them.
• Even when states’ violate public international law, they don’t question its legal character rather they try to interpret rules of public international law to justify their conduct.
• United Nations Organization (UNO) (based on legal international law), the body in itself signifies “International Law in Action”
• International law works in a “decentralized system” and it also has sanctions in particular.