Introduction:
As per the definition by Austin, ‘Law is the command of the Sovereign’. As per this definition International Law should not be recognised. Because of this much debate revolves around the legitimacy of International law. But as per Hart, law derives its strength from acceptance by society that its rules are binding, not from its enforceability. Then, as per this reasoning International law becomes law and binding.
Therefore, for our understanding, we shall presume that law is something that binds the members of the community together in their adherence to recognised values and standards and thus, international law is valid.
One of the most commonly recognised definitions of international law is the one given by Oppenheim, it states “Law of Nations or International Law is the name for the body of customary laws and conventional rules which are considered legally binding by civilized States in their intercourse with each other”.[1]
This definition has been criticized on modern times for various reasons. Some of the criticisms are:
- The idea of a civilized state within this definition, is vastly based on western and Christian civility and morality.
- Subjects of international law have been restricted to nation states.
- Sources of international law mentioned here are only customary laws and conventional rules, whereas there exist various other sources also.
- Body of rules here implies international law to be static in nature, when in reality it is ever-evolving and dynamic in nature.
- Oppenheim does not say that these rules are legally binding, but that theyare considered so.
Because of the above criticisms, some modern definitions are considered to be more appropriate.
As per Schwarzenberger, “International law is the body of legal rules which apply between sovereign States and such other entities as have been granted international personality.”[2]
Public International Law and Private International Law
International law comes in two forms, Public International Law and Private International Law.
Public International Law is the law which governs nation states. It primarily deals with the States, International Organizations and to some extent with the individuals and non-state entities.
Private International Law or more properly and accurately, conflict of laws, is the law which governs primarily the individuals of two different nation states. It is essentially a domestic law, which contains provisions for international issues and, and it has to be decided whether a domestic rule should apply foreign law or relinquish jurisdiction to a foreign court. For instance, laws regarding contracts, adoption, marriage, etc. fall under the spectrum of private international law.
Evolution of International Law
Origins of International law can be observed since ancient period. The ancient India had a legal system in advance of any other legal system of antiquity. The People of ancient India had commercial and cultural intercourse with other nations and Indian sovereigns had diplomatic relations with other sovereign States. Indian merchants carried on trade on a large scale with nations as far apart as China, Rome, Egypt and South-East Asia.
As for the modern realm of International Law, it can be traced back to 400 years. From the time of Renaissance of Europe (15th, 16th century) international law has seen many developments related to the modern international laws. During this time many sophisticated changes were taking place, in terms of culture, technology, and in general ideologies of the people. The Reformation and the European religious wars emphasized the growing power of the nations. A continental system was starting to gain relevance and the supremacy of the state was put emphasis on. The Renaissance stimulated a rebirth of Hellenic studies and ideas of Natural Law, in particular, became popular and with this change the theory of International law, between the nation states, also had started evolving.
The works of Hugo Grotius (1583–1645) had also impacted the modern international laws in several ways. He was a Dutch Jurist who is known as the father of international law. He had diverted from the divine law to law of nature being founded exclusively on reason and the law which governs everything. His main text is De Jure Belli ac Pacis (1625; On the Law of War and Peace).
Afterwards, with the of Treaty of Westphalia (1648), one of the first treaties of international law, based on which nation states in Europe emerged and gained sovereignty.
In the nineteenth century, the Hague Conventions (1899 & 1907) were the first most sophisticated form of peace treaty. It thus formed a base for many other future conventions and treaties.
The Congress of Vienna, established a new international order which was to be based upon the European balance of power. International law became Eurocentric, the preserve of the civilised, Christian states, into which overseas and foreign nations could enter only with the consent of and on the conditions laid down by the Western powers. By this point the previous steps to form peace had failed and thus league of nations was formed. It consisted of an Assembly and an executive Council.
After the Second World War and failure of the League, 1946 the United Nations Organization was formed. The General Assembly of the United Nations currently has 193 member states.
Finally, all of this led up to the formation of Modern customary law and treaty law. Many of the trends which had emerged or gained importance in the nineteenth century have continued to this day. There has been a huge increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organisations have established the essence of international law today.[3]
International Customary Law
International Customary law is not something which is nostalgic and traditional like domestic laws, but can be derived within a small period of time, as a practice between states.[4]
There are 2 Principles of International law:
- State Practice
State practice refers to the customs, which are in practice between states. These customs have to be consistent in nature, generally accepted and practiced and uniform in nature.
In the SS lotus case[5], it was held by the permanent court of justice, for a practice to be held as a custom, the state had to be aware that is it explicitly doing something or refraining from it, due to the existence of the said practice. If a state party is not aware of it, then it cannot be held as practice. In this case there were two ships, a French ship and a Turkish ship which got into an accident, which caused various deaths of the people abord the Turkish ship. When, the Lotus, the French ship reached Istanbul, the French officer was arrested on a charge of manslaughter and the case turned on whether Turkey had jurisdiction to try him. France, maintained that there was a custom wherein the nation state was legible to try someone, and this was based on the existence of various instances in the past, and deduced a tacit consent. But this was rejected by the court, as the prior instances were not interlinked with the consent given, hence there was no custom, as it was not done based on the same reasoning and the state had not intended to form any customary practice.
Further in the Case Concerning right of passage over Indian territory[6], it was held that the right of passage was blocked by the Indian state due to unrest in the territory, and even if it usually grants passage to the Portuguese, it still had the right to block the passage in this case. In other words, the court held that, yes there was existence of a custom in this case, as India always granted passage, but the right to grant passage still was with India as it is a part of its national territory.
- Opinio Juris
Opinio Juris refers to the mental belief on the part of the state. This mental belief may often be represented through various judicial pronouncements in case of confusion. To avoid a certain customary law, a state must be a Persistent Objector from the very beginning, which means that the state must object to a certain custom, right since its inception. This will lead to the belief that there is no mental belief on the part of the state.
In the Asylum case[7], a man named Victor, who was the leader of a military rebellion in Peru, was granted asylum in Columbia, as per the treaty regarding political crimes. Here, Peru held that Victor was being charged for common crimes and not political crimes. Columbia had agreed with the custom that, which existed amongst Latin American countries (Local/Regional Custom), that the nature of the crime shall be decided by the country giving Asylum. It was held that since Peru has never been a signatory to any of the such treaties, it thus becomes a Persistent Objector state, which does not recognise this particular custom.
Conclusion
From the above observations of various cases around the International customary law, we can deduce that for a custom to be law, whether between two states, local or regional, there must be existence of a state practice and opinio juris. In other words, the custom must not only be uniform, consistent and generally accepted, it must also be the mental belief on the part of a state to follow such customary laws.
References:
[1] L Oppenheim, & H Lauterpacht. (1955). International law: a treatise. Vol 1: peace. Longman.
[2] Georg Schwarzenberger. (1957). International law vol 1: international law as applied by international courts and tribunals: 1. Stevens And Sons.
[3] Malcolm Nathan Shaw. (2017). International law (Eight Edition). Cambridge University Press.
[4] AUST, A. (2010). Handbook of International Law (Second Edition). Cambridge University Press. (Original work published 2010)
[5] S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)
[6] Case concerning Right of Passage over Indian Territory (Merits), Judgement of 12 April 1960: I.C.J. Reports 1960, p. 6.
[7] Asylum Case, Colombia v Peru, [1950] ICJ Rep 266
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