Law optional 2020 Paper I

Q6. (c) Do you agree with the view that International law is merely a positive morality? Discuss the nature and scope of International law.

Verified Answer
  1. Core Legal Answer & Context: I disagree with the view that international law is merely a positive morality. This perspective, often associated with legal positivists like John Austin, argues that true law requires a sovereign, a command, and a sanction, which international law ostensibly lacks. Austin viewed international law as 'positive morality' because it lacked a supreme legislative authority, a centralized enforcement mechanism, and a clear system of sanctions comparable to domestic legal systems. However, this view is largely outdated and fails to capture the reality and effectiveness of international law.

Nature of International Law: International law is a distinct legal system governing relations between states and, increasingly, international organizations and individuals. Its nature is characterized by:

  • Decentralization: Unlike domestic law, there is no single global legislature, executive, or judiciary with universal compulsory jurisdiction. Law-making is primarily through state consent (treaties) and state practice (customary international law).
  • Consent-based: The binding nature of international law largely stems from the consent of states, whether explicit (treaties) or implicit (customary law).
  • Horizontal System: States are both subjects and creators of international law, operating on a principle of sovereign equality.
  • Effectiveness: Despite the absence of a strong central enforcement body, states generally comply with international law due to reciprocity, reputation, shared interests, and the existence of various dispute settlement mechanisms (e.g., ICJ, WTO panels, arbitral tribunals).

Scope of International Law: The scope of international law is vast and ever-expanding, covering virtually all aspects of international relations. Key areas include:

  • Peace and Security: Regulating the use of force (UN Charter), disarmament, and collective security.
  • Human Rights: Protecting fundamental rights and freedoms of individuals (e.g., Universal Declaration of Human Rights, ICCPR, ICESCR).
  • International Trade and Finance: Governing economic relations (e.g., WTO law, IMF agreements).
  • Environmental Protection: Addressing global environmental challenges (e.g., climate change, biodiversity).
  • Law of the Sea: Regulating maritime activities and zones (UNCLOS).
  • Diplomatic and Consular Relations: Governing interactions between states' representatives.
  • International Criminal Law: Holding individuals accountable for grave international crimes (e.g., genocide, war crimes).
  1. Relevant Statutes and Sections:
  • Statute of the International Court of Justice (ICJ), Article 38(1) (sources of international law: treaties, custom, general principles, judicial decisions, scholarly writings).
  • United Nations Charter (establishes the framework for international relations and the prohibition on the use of force).
  1. Important Landmark Cases:
  • SS Lotus Case (France v. Turkey) (PCIJ 1927): Emphasized state sovereignty and that restrictions on state independence cannot be presumed, but must be proven through international law.
  • Nicaragua v. United States (ICJ 1986): Affirmed the existence and binding nature of customary international law, even when states do not explicitly consent to it, and demonstrated the ICJ's role in interpreting and applying international law.
  1. Clear Conclusion: International law is far more than mere positive morality. It is a sophisticated and binding legal system, albeit one with unique characteristics due to its decentralized nature. Its extensive scope and the high degree of state compliance, coupled with established mechanisms for interpretation and dispute resolution, firmly establish its status as a legitimate and effective body of law, essential for maintaining order and cooperation in the international community.