International Law, Definition, Authors, Types, Sources

 

Definition and concept of International Law

          Every society, irrespective of its population, makes a legal framework (law) under which it functions and develops. It is permissive in nature as it allows individuals to form legal relations with rights and duties and restrictive in nature as it punishes the wrong-doers. These laws are referred to as Municipal laws. The world today requires a framework through which interstate relations can be developed. International Laws fill the gap for this.

The term ‘International law’, also referred to as Laws of Nations was first coined by Jeramy Bentham in 1780. Every country is referred to as ‘state’ in International Law.

Meaning

    The modern international law system is a product of only the past four hundred years bearing witness to the influence of various writers and jurists of sixteen to the eighteenth century, who formulated some of its most fundamental principles. 

International laws are a set of rules, agreements and treaties that are binding between countries. Countries come together to make binding rules that they believe will benefit the citizens. It is an independent system of law existing outside the legal framework of a particular state.

What is the aim of International law

    The existence of international law is the result of increased interstate engagement. It mainly aims to maintain international peace and security among different states. It also helps in: 

1. promotion of friendly relations among the member states (members of the International community, for example, United Nations),
2. providing for basic humanitarian rights,
3. to solve International problems through international cooperation, 
4. to refrain the state from using threat or force over the territory of any other state to provide for the right to self-determination to people, and
5. to use peaceful methods to settle international disputes are few of its functions.

Who are the subjects of International Law?

    It is referred to as entities who have a legal personality, with certain rights and duties under the international legal system.

The state is considered to be the primary and original subject of international law. However, it also regulates the actions of other entities:

1. Individuals – Common people of any state are also believed to be the subject of international law.
2. International Organizations – It is an association of states, established by a treaty between two or more states. International Organizations too have a legal personality and are considered to be the subject of international law. For example, the United Nations.
3. Multinational Companies – They own and operate their corporate entities in at least one other country aside from the place where it was incorporated, therefore it is established in more than one nation. 

Various Scholars on International Law

    Various eminent scholars, international jurists, subject experts gave their interpreted definition of International law. Most popular among them are as follows:

1. According to Prof. L. Oppenheim, “Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by the civilized states in their intercourse with each other.”
2. As per Torsten Gihl, “The term International Law means the body of rules of law, which apply within the International Community or society of States.”
3. As per J.L. Brierly, “The Law of Nations or International Law may be defined as the body of rules and principles of action, which are binding upon civilized states in their relations with one another.”
4. Gray said, “International law or the Law of Nations is the name of a body of rules which according to their usual definitions regulate the conduct of states in their intercourse with each other.”
5. In Queen v. Keyn (1876), Lord Coleridge, C.J., defined International law as “The law of nations is that collection of usages which civilized States have agreed to observe in their dealings with one another.”

Is International Law really a law?

    It is one of the most controversial questions that has been debated and on which jurist’s opinions hugely differ. One view considers International law not a true law, rather, a code of rule of conduct backed by morality. On the other hand, International law is considered to be a true law and is regarded as a law, similar to that of ordinary laws of a state, binding upon the citizens.

Types

    International Law can be broadly divided into three types: Public International law, Private International law and Supranational Law.

Public International Law

    It refers to rules and regulations governing international relations between different states and international institutions. It sets rules concerning all mankind: the environment, international business, the ocean, human rights, etc.

Public international laws apply to international organizations like the United Nation (UN) and the World Trade Organization (WTO).

Aspects of Public International Law:

• Custom – consistent state practices relying on opinio Juris, that is, belief, that is to be carried out there is a legal obligation to do so.
• Standard behaviour globally accepted, jus cogens.
• Legal Codes referred to as treaties.

    For example, the Kyoto Protocol, a climate agreement, has many countries as signatories for reduction of their greenhouse gases emissions in order to protect the environment. 

    We can take Convention on the Rights of the Child, a convention, ensuring the protection of child rights in the signatory countries. 

The Sovereignty of states

    It’s the idea that the state is supreme and it can’t be a subject to other states’ rules and regulations. No state can be forced to sign a treaty. They are free to accept or decline to sign an international treaty or agreement.

Private International Law

    It is also referred to as, ‘Conflict of laws’ and the phrase was first used by Ulrich Huber in his book- ”De Conflictu Legum Diversarum in Diversis Imperiis” in 1689.

Private International Law establishes and deals with the relationship between citizens/private entities of different countries. People from different parts of the world are often interacting with each other forming legal relations. 

For example, an American man and an Indian woman were married in India and now live in Los Angeles. In case they ever want a divorce, the rules of private international law will determine where they will be required to go, either to the US or to an Indian court to get divorced.

The same is applicable to business as well as. Globalization has led to business activities between various countries. For example, if you are defrauded by a foreign country’s personal/private entity or organisation, then the rules of private international law will apply if you want to sue.

Supranational Law

    It refers to a situation in which a nation/state surrenders to a court of their choice their right to make certain judicial decisions, which will take priority over the decision made by the national courts. This distinguishes it from the Public International Law. For example, the supranational law is represented by the European Union (EU). All the courts within the member states of the EU are overruled by the European Court of Justice in accordance with EU laws. 

Sources of International Law

    International Law is comprehensive in nature and due to that it is an amalgamation of various sources, there exists no single system of laws which can interpret and extend the law but international law still exists and is ascertainable.

There are ‘sources’ available from which the rules of international law may be extracted and analyzed. According to Lawrence, if we take the source of law which has all the authority required to give it binding force, then in respect of International Law there is one source of law and that is the consent of Nations. This consent may be either tacit (custom) or express (treaties).

Major sources which form the conventional source of International law includes the International Convention and Treaties. Sources of International Law can be bifurcated into primary and secondary sources which are explained below.

Primary Sources

    Primary Sources of International Law are considered formal in nature. They come from official bodies which include Treaties, Customs and principle of Law. Article 38(1)(a-c) of the ICJ statute is widely recognized as the backbone of the formal source of International Law. It is generally regarded as an authoritative statement of the sources of international law. Article 38 of the Statute of the International Court of Justice in The Hague has been treated as a convenient catalogue of international legal sources.

Article 38 of the ICJ statute

    Article 38(1)(a-c) of the ICJ was adopted by the same provision of the statute of the Permanent Court of International Justice which operated under the auspices/support of the Legal of Nations in 1920. The article refers to the primary sources of international law which are enumerated below:

Custom as a Source of International Law

    The original and the oldest sources Law is known as Custom. The rules of customary International Law involved a long historical process which gained recognition by the entire community. The presence of customary rules can be deduced from state practice and behaviour because it is not a written source of law. A rule of customary law is said to have two elements:

First, there must be widespread and consistent State practice.

Secondly, there has to be “opinio Juris”, a Latin term which means a legal obligation to believe in the existence of such law.

Features of Customary Law

Uniform and general

    State practice to give rise to binding rules of customary International Law, that practice must be uniform, consistent and general and must be coupled with a belief that the practice is obligatory rather than habitual. In the Asylum Case, the court declared that a customary rule must be used constantly and uniformly throughout history which can be traced through state practice.

Duration

    Continuous and regular use of particular conduct is considered as a rule of customary law. In the North Sea Continental Shelf cases, the ICJ stated that there is no precise length of time during which the practice must exist. It is simply that it must be followed long enough to show that other requirements of custom are satisfactory.

An opinion of Law

    To assume the status of customary international law the rule in question must be regarded by the state as binding in Law i.e. the states must regard themselves as being under a legal obligation to follow the practice. In the Lotus case,opinio Juris was seen as an essential element of customary international law and this was affirmed in North Sea Continental Shelf Cases as well.

Convention as a source of International Law

    Treaties and conventions are one of the most important sources of International Law. These conventions can be multilateral or bilateral. Multilateral conventions relate to the treaties which formulate the universal or general application of the law. On the other hand, bilateral conventions are those which are formed exclusively by two states to deal with a particular matter concerning these states.

Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties, gives the definition, “A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.” Treaties act as a direct source of rights and obligations for the states, they codify the existing customary source of law.

They are voluntary and cannot bind non-signatory to it, however, there are certain exceptions to it that is if any rule forms part of the Jus Cogens norm as they are part of the accepted principles of International law and every state has a peremptory duty of not breaching them due to their erga omnes obligations. (owed to the whole world)

General Principle of International Law

    Most modern jurists accept general principles of law as common to all national legal systems, insofar as they are applicable to the relations of States. There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of ‘the general principles of law recognized by civilized nations’ and was inserted into article 38 as a source of law.

Some of the examples of General principles include:

• The rule of res judicata which has been affirmed by the court in the case of Genocide Convention Bosnia and Herzegovina v. Serbia and Montenegro,
• The rules of pacta sunt servanda made applicable,
• Reparation must be made for damage caused by the fault, 
• The right of self-defence for the individual against attack on his person, family, or community against a clear and present danger,
• For one’s own cause no one can be a judge and that the judge must hear both sides.

Secondary source (Evidence of International law)

    Article 38(1)(d) forms part of the material source of International Law also known as the secondary source. It states that judicial decisions and the teachings of the most highly qualified publicists of the various nations also help in guiding the formation of international law, however they are not binding but merely advisory in nature. 

Judicial Decision

Under this, the court is authorised to apply previous decisions of the court which are also known as an evidence of international law, however, it is subject to the exception stated under Article 59 of the statute which states that the previous decision of the court can only guide the court, it is not binding on the court.

This article provides the court with a rule that it is not to be bounded by precedents but recourse can still be made by the court to its past decision’s res judicata and advisory opinion to substantiate current case as authoritative evidence of legal position.

ICJ plays a major role in the law-making process through its advisory opinions, case laws and judge’s rule. One of the major examples of this includes the principle of the prohibition against the use or threat of use of force laid down by the court in the case of Nicaragua vs. USA which is now considered as a part of Customary International Law. T

The judicial decision of the court also encompasses international arbitral awards and the rulings of national courts. One leading example is Alabama Claims arbitration, which marked the opening of a new era in the peaceful settlement of international disputes, in which increasing use was made of judicial and arbitration methods in resolving conflict.

Another illustration of the impact of arbitral awards is the Island of Palmas case wherein it has been referred that a unanimous, or nearly unanimous, decision plays an important role in the progressive development of the law. It helps in providing a single view for interpretation of the issue at hand which helps in avoiding controversy during the development of International Law.

Juristic writings and teachings

    Other major parts of this source also include the teachings of the highly qualified writers such as Gentili, Grotius, and Vattel who were considered as the supreme authorities of international law in the 16th to 18th Centuries.

Textbooks are used as a method of discovering what the law is on any particular point rather than as the source of actual rules, and the writings of even the most respected international lawyers cannot create law. These are considered as an evidentiary source of law as they provide an explanation and understanding of the International principles. They carry an essential value because they provide to fill the grey areas of International Law where treaties or customs do not exist.

Other sources of International Law

    International law is not based on a set of rules and therefore article 38 is not exhaustive. There are various other factors that develop the usage of International Law which include declarations of Security Council resolutions, declarations, and recommendations adopted by the UN General Assembly, International morality and equity, etc.

The world is constantly evolving and the problems are becoming more complex, the resolutions and declarations adopted by assembly act as an inevitable impact upon the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding as to the law.

For example, in the case of the USA vs Nicaragua, the General Assembly had asked the court for an advisory opinion on the question: “is the threat or use of Nuclear weapons in any circumstances permitted under International Law?” The court after a review of the relevant international legal instrument as well as the Security Councils’ General Assembly resolution of the matters reached a resolution that the threat or use of nuclear weapons would generally be contrary to the rules of International Law applicable to armed conflicts and in particular the principles and rules of humanitarian law.

The concept of equity has been referred to in several cases. In the Rann of Kutch Arbitration between India and Pakistan in 1968, the Tribunal agreed that equity formed part of international law and that accordingly, the parties could rely on such principles in the presentation of their cases.

UN has provided a true compliment for the gap created in what is supposed to be an accurate reflection of other sources of international law and its activities has positively affected lawmaking ways by resolutions and faster means by 15 members of the Security Council and 191 members of the General Assembly as greater needs arise for fast development of international law codified by International law commission.