International Law - Definition, Nature and Basis - UGC NET - LAW

Summary

This video script explores the debate on the legitimacy of International Law as 'real law.' It discusses the views of various jurists like John Austin, Thomas Hobbes, and Jeremy Bentham, who argue that International Law lacks the essential elements of law due to its non-binding nature on sovereign states. The script also presents the opposing perspective of jurists like Hall and Lawrence, who consider International Law as law derived from custom and precedent. The video further delves into the definitions of International Law by scholars like L. Oppenheim and Sir Robert Jennings, and the nature of International Law as a 'weak law.' It concludes with an overview of the theories that form the basis of International Law, such as natural law, positivism, and consent theory.

Takeaways

• 📜 John Austin and Thomas Hobbes argue that International Law is not 'real law' because it lacks the command of a sovereign and enforcement by superior political authority.
• 🌍 Austin refers to International Law as 'Positive International Morality', distinguishing it from what he considers true law.
• 🏛 Bentham and Holland identified four essentials for law: Legislative Machinery, Executive Machinery, Potent Judiciary, and Sanction, which they argue are not fully present in International Law.
• 📚 Holland views International Law as the 'vanishing point of jurisprudence', suggesting its uncertain status within the field of law.
• 👨‍🏫 Jeremy Bentham was the first academic to use the term 'International Law', marking a significant point in its academic recognition.
• 🏛️ Hall and Lawrence, along with Pollock, argue that International Law is indeed law because it is derived from custom and precedent and is binding on political communities.
• 📖 Definitions of International Law have evolved, with later definitions by Sir Robert Jennings and Sir Arthur Watt including international organizations and individuals as subjects of International Law.
• 🌐 Schwarzenberger's definition is all-inclusive, stating that International Law applies to sovereign states and entities granted international personality, including international organizations.
• 💡 The nature and status of International Law are controversial, with opinions varying widely among jurists and influenced by their definitions of law.
• ⚖️ Despite being considered 'weak law' due to its relative inefficiency and reliance on state consent, International Law is recognized as having binding force through treaties and conventions.
• 🌱 The basis of International Law includes theories like Natural Law, Positivism, Consent, Auto Limitation, and Fundamental Rights, as well as the principle of Pacta Sunt Servanda.

Q & A

What is the view of John Austin and Thomas Hobbes on International Law?

John Austin and Thomas Hobbes considered International Law not as a 'real law' because it lacks the command of a sovereign enforced by superior political authority, which they believed are essential requirements for something to be considered law.

What term did John Austin use to describe International Law?

John Austin referred to International Law as 'Positive International Morality', indicating that he saw it more as a moral guideline than a legally binding set of rules.

According to Bentham and Holland, what are the four essentials for considering something as 'LAW'?

Bentham and Holland identified four essentials for something to be considered 'LAW': Legislative Machinery, Executive Machinery, Potent Judiciary, and Sanction.

Why did Holland refer to International Law as the 'vanishing point of jurisprudence'?

Holland referred to International Law as the 'vanishing point of jurisprudence' because he believed it lacked the strength and enforcement mechanisms found in domestic law, making it less tangible and less effective as a legal system.

Who is considered the Father of International Law and what was his perspective?

Hugo Grotius is considered the Father of International Law. He believed that Law can be divided into Natural and Positive, and further divided Positive Law into Divine and Human. He saw International Law, also known as the Law of Nations, as a subset of Human Law.

What is the definition of International Law according to Professor L. Oppenheim, J.L. Brierly, and Gray?

Professor L. Oppenheim, J.L. Brierly, and Gray defined International Law as the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other.

How did Sir Robert Jennings and Sir Arthur Watt expand the definition of International Law?

Sir Robert Jennings and Sir Arthur Watt expanded the definition of International Law by including international organizations and individuals as subjects of International Law, beyond just states.

What is the all-inclusive definition of International Law given by Schwarzenberger?

Schwarzenberger's definition of International Law is the body of legal rules which apply between sovereign states and such other entities as have been granted international personality, including international organizations and individuals.

Why is International Law considered a 'weak law'?

International Law is considered a 'weak law' due to its relative ineffectiveness and inefficiency compared to municipal law, the requirement of state consent for it to be binding, and the lack of enforcement power by the international court.

What are the main theories behind the basis of International Law?

The main theories behind the basis of International Law include Naturalist Theory, Positivism Theory, Consent Theory, Auto Limitation Theory, and Fundamental Rights Theory.

What does 'Pacta Sunt Servanda' mean and how does it relate to International Law?

'Pacta Sunt Servanda' means 'treaties shall be complied with'. It is a principle that when treaties are made, nations must comply with them, thus upholding International Law.