Introduction:
The world is changing rapidly since time immemorial. As the technology, laws, rules, culture, food practices change, so does the adaptability of any country to these factors change. All the countries in the world are somehow dependent on each other for trade, education, technology, tourism, etc. Globalization has made the entire world a global village thus bringing into the picture for the need of international law to regulate the affairs of these countries with one another. The nations together make some binding rules that they believe will benefit their citizens. The Law Of Nations ensures peace, justice, common interests, and trade. States work together to strengthen International Law because it plays an important role in society.
Sir Robert Jennings and Sir Arthur Watts defined “International law as the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relations of states, but states are not the sole subjects of the law of nations. International organizations and to some extent, also individuals may be subject to rights conferred and duties imposed by international law.”
It could also be defined as the body of rules which civilized states observe in their dealings with each other. These rules being enforced by each particular state consistent with its moral standard or convenience.
The subject matter of international law includes diplomatic relations, military issues, and state territory, human rights, a crime against humanity, refugee problems, economic trade, etc.
Development Of International Law
International law was developed in three phases. The first phase begins with the origin of the European civilization and lasts till the beginning of the Roman Empire. The second phase begins from the Roman Empire and lasts to the Reformation. The third extends from 1648 till today.[1]
Theories of International Law
International law is based on both naturalist and positivist theory.
- Naturalist Theory
In the view of Naturalist Jurists like Grotius, Pufendorf, and Vattel, natural law is the foundation of all laws including International Law. International law is binding on the states as it is a part of the law of nature.
- Positivist Theory
Positivists define law as a command of the sovereign to its subjects and the sanction is its physical force. According to them, the rules of international laws and municipal laws are equally binding, since both are issued by the will of the state, which is the source of the validity of the law. [2]
Classification Of International law
- Private International Law
Private International law applies to the cases involving the disputes and controversies between private bodies like humans or corporations which have a relationship with one or more nations.
- Public International Law
Public International law mainly governs the relationship between nations. The legal areas of which are governed by this law are standards of international behavior, laws relating to the sea, economic laws, environmental laws, laws relating to human rights, and diplomatic laws.
Principles Of International Law
International Law is based on the following two principles:
- Jus Gentium
These set of rules do not form part of a legal statute but mutually governs the relationship between two nations.
- Jus Inter Gentes
These refer to those treaties and agreements that are accepted by both countries mutually.
Sources Of International Law
Sources of the law of nations mean denote things: first, the actual materials determining the rules applicable to a given international situation also known as the material sources, and second, the legal methods creating rules of general application also known as the formal sources.[3]
Article 38(1) of the Statute of the International Court of Justice lists the sources of Public International Law which include treaties, international customs, general principles of law as recognized by civilized nations, the judgments given by national and lower-level courts, and writings by scholars and jurists. Moreover, the Article lists “ex aequo et bono” (equity) as an alternate source of Public International Law applied by the Court if the parties agree. However, in addition to these traditional sources listed in article 38(1), there are contemporary sources, such as the acts of the international organizations.
The primary sources are the international conventions, international custom and general principles of law; and the subsidiary sources that are the decisions of courts and the opinions of legal scholars.
- Treaties
The concept of treaty is based on pacta sunt servanda which is a customary law principle which means promises must be kept. The terminology of word treaty is commonly used as a general term which embraces almost every kind of international agreements which are known by a variety of different names such as conventions, memorandum of understanding, pacts, general acts, charters, statutes, covenants, protocols, etc. A treaty could be defined as an international agreement concluded between States in written form and governed by International Law.[4] Treaties deal with a large spectrum of topics and they either be unilateral or bilateral.
Treaties that make law are considered as the primary source of International Law. These treaties have been concluded to regulate almost every aspect concerning the international community. Examples of important treaties are the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic Relations of 1961, the International Covenant on Civil and Political Rights of 1966, etc.
Treaties are a more modern, deliberate, and speedy method as compared to custom for making of law. The importance of the treaty as a source of International Law is growing day by day.
- International Custom
International Custom is evidence of general practice accepted as law according to Article 38 of ICJ. The aforementioned definition is composed of two elements that are necessary for the formation of customary International Law. For the formation of the customary law of nations, the aforementioned two elements are necessary. The first objective or behavioral element which is the first element requires frequent consistent action or lack of action by nations and this is indicated by activities as court decisions and diplomatic behaviors, official statements or conducts administrative or legislative action, or correspondence. The psychological or subjective element requires the conviction that in a similar case such a practice is required or permitted by international law. In the above light, international customs are defined as usages or practices which have been observed by a large number of nations over a long duration and considered by them to be legally binding.
- General Principles Of Law
General Principles of Law recognized by civilized nations is a primary source of International Law as per Article 38. The Court shall apply the general principles of law in the cases wherein treaties and customs provide no rules for application. There is no agreement on what the term “general principles of law” means but these are originated from natural and positive law. These usually cement the gaps in Treaty Law and Customary Law.
The general principles could be which are found common in all or majority of the legal systems in the world and are considered to be applicable even in the International arena. Examples of such principles would be the binding nature of agreements, protection of acquired rights, and prohibition of unjust enrichment or principles of procedural fairness before a court of law.
- Judicial decisions
Article 38 International Court of Justice allows the Court to apply judicial decisions as subsidiary means for the determination of rules of law. It is allowed on basis of the provisions of Article 59 which states that “the decision of the Court has no binding force except between the parties and in respect of that particular case.” This means that the Court is not obliged to follow previous decisions meaning that the doctrine of Stare Decisis does not apply in International Law. Despite this, the decisions of the international courts (PCIJ and ICJ) are quoted as authoritative decisions, and international courts always strive to follow their previous decisions to insert certainty and uniformity within their judicial process, or at least, they have had to take previous decisions into account.[5]
ICJ through its case laws, advisory opinions, and judges role-play a major role in the law-making process. One of the major examples of this was laid down in the case of Nicaragua vs. the USA where the principle of the prohibition against the use of threat or use of force was recognized. This principle is now considered to be a part of Customary International Law.
Further, as the term “judicial decisions” referred to by Article 38 also encompasses decisions (awards) of international arbitral courts (tribunals) and the decisions of national courts, these decisions have been playing a role in the development of International Law.[6]
- Writings of legal scholars
As per Article 38(1)(d) teachings of the highly qualified writers of International Law such as Gentili, Grotius, and Vattel are considered as the subsidiary means of determination of law. The role of these writers is extremely significant in providing a structure and coherence in the field of International Law. The writings of such writers have evidentiary value as many references to writers are found in the pleadings before the Court.
Further, the scholarly works of prominent jurists are essential in developing the rules that are sourced in treaties, customs and the general principles of law. This practice was applied by the United States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700-1).
- Ex aequo et bono (Equity)
Ex Aequo et bono is listed in Article 38 as an alternate basis for a decision by the Court instead of the normally employed legal rules. Only when the parties agree to it, then only the court can decide a case submitted to it ex aequo et bono.
- Acts of International Organizations
The decisions made by the organs of international organizations may be binding or non-binding. Only binding decisions of these organizations are the source of International law and these binding decisions are binding on countries that are members of these organizations. Security Council of the United Nations is authorized to take resolutions under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to threats, breaches of the peace, and acts of aggression is the example of binding decision.[7]
Further, the resolutions and declarations of the General Assembly may also provide a basis for the progressive development of the International Law and the speedy adaptation of customary law to the conditions of modern life.[8] Moreover, in some instances, a resolution or declaration may have direct legal effects as an authoritative interpretation and application of the principles stated in the Charter of the United Nations.
Scope Of International Law
International Law is extended to all the free and independent nations. According to International Law, all the states whether small or big enjoy the same status. Due to the global system becoming more complex, international law has come to recognize and regulate international organizations, businesses, non-profit entities, and individuals.
- Regulation of State Interrelations
The direct subject of International Law is states. At the outset, all the nations are interrelated to each other. The interrelation somehow causes conflicts and differences. For such interrelation to carry on smoothly, mutual understanding and negotiations are needed which comes into picture by agreements. These nations for their own coexistence framed these agreements which later took the form of established conventions and law. These treaties form the base for the interrelation by regulation and removing conflicts. Customs usually become usages and later turn into law. Thus International law having states as its main subject deal in areas like asylum, extradition, neutrality, blockade, high seas, air space, contraband, diplomatic relations and their immunities, settlement of international disputes, and kinds of states, etc.
- Interrelations Among Organizations, their Relations with States and Individuals
There are various organizations made by the states for various purposes such as for common defense: NATO, ASEAN; for common economic uplift – ECO; for cooperation – SAARC; for solving common problems and unity – OIC, OAU, etc. With the functioning of these organizations, problems might arise with are dealt with by International Law.
- Deals with the issues of Individuals and Non-State Entities
The issues of human rights and international criminal law make individuals the subject of international law. For example, international law deals with nationality and rights and duties of the individuals.
Conclusion
International Law is a set of rules which are necessary to regulate the behavior of the nation-state towards each other to ensure peace and welfare of the International community. Hence, it helps in resolving disputes amongst States. It may influence internal laws too and may become a part of domestic law. It is mainly concerned with the rights, duties, and interests of the State.
There are various sources of international law such as treaties, customary international law, and general principles of law. Practically, these sources are closely interrelated and often interact by supplementing and replacing one another. Mostly a rule created in one type of source consequently emerges in other forms of source. Thus, these sources of international law ought not to be viewed in isolation. International Law is very wide and it keeps on developing.
References:
[1] International Law: Definition, Evolution and Scope of International Law. (2014, November 17). Retrieved June 04, 2020, from https://www.politicalsciencenotes.com/articles/international-law-definition-evolution-and-scope-of-international-law/302
[2] Public International Law: Nature, Scope, Codification, Sanctions. (n.d.). Retrieved June 04, 2020, from https://www.lawtycoon.com/public-international-law/5073451
[3]See Malanczuk, p. 35; and I. Brownlie, Principles of Public International Law, p. 3, 6th ed., Oxford, London (2003).
[5] See Brownlie, pp. 20-1; and Shaw, pp. 103-4.
[6] See Shaw. p. 104.
[7]See U.N. Charter arts. 39-51. Article 25 of the U.N. Charter provides: “ The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
[8] Brownlie, p.
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