Chapter 1 DEFINITION AND CONCEPT OF INTERNATIONAL LAW
1. Definition: International Law or the law of Nations as it was called, have been given many definitions. The understanding and the definition changed with the development of time. Here is the small effort to carve out certain important definitions as given by certain very famous scholars of their times.
Oppenheim “Law of Nations or International Law is the name for the body of customary and treaty rules which are considered as binding by the state in their intercourse with each other.” There are three main elements present in this definition
- Body of rules governing the relation between the states.
- States regard them binding in their relation with each other.
- Rules are derived from customs and Treaties.
- This traditional definition of International law given by Oppenheim does not take into consideration International Organization and Institutions.
- Individuals are also not recognized as the subject of International law.
- Customs and Treaties are not the only sources of International law. There are other sources too.
- International law is not static as given in this definition ( body of rules) as law is an ever changing concept.
- MNC’s are also excluded from this definition.
Sir Robert Jennings and Sir Arthur Watt revised this definition of International law as— “International Law is 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 the states, but states are not the only subject matter of international law. International Organization and to some extent; also individuals may be subject of rights conferred and duties imposed by international law. Starke “ International law is that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore do commonly observe in their relation with each other and which also includes
- The rules relating to the functioning of international organization and international institutions, their relation with each other and their relations with state and individuals.
- Certain rules and law relating to Individuals and non state entities so far as the rights and duties of such individuals and non state entities are concern of the other international community.
This definition has its own limitations as to it enumerates the subjects of International law and in case there is an entity whose rights and duties are not enumerated, starke definition will fail. Schwarzenberger “International Law as the body of legal rules which apply between sovereign states and such other entities as have been granted international personality.” Whiteman defined International Law as– The standard of conduct at a given time, for states and other entities subject thereto.
On the basis of above definition we may conclude that international law is a body of rules and principles which regulate the conduct and relations of the members of international community. The contention that states alone are the subject matter of international law is not only inconsistent with the changing nature of international law but has become completely obsolete and inadequate. Individualistic character of international law is being replaced by the law of social inter-dependence. International law has been remarked as a “ living and expanding code”. In view of some changing character and expanding scope of international law today, international institutions, some non state entities and individuals have also become the legitimate subjects of international law.
Thus, international law is constantly evolving body of norms that are commonly observed by the members of international community in their relation with one another. These norms confer rights and impose obligations upon state and to a lesser extent, upon international organizations and individuals. Moreover, International law has effects on, and effected by the international relations, political thought and communications, as well as by the awareness of women and men in every state that they are part of those addressed by the United Nations as being “ we the people of the United Nations”.
2. Nature of International Law:
The status of international law is the most controversial and debated topic among the jurist all over the world. The important to be debated is whether international law is really a law or not? Or is it just a code of rules of conduct of moral force only? In order to understand the real nature of international law it is important to take into consideration how the various theorists have defined the tern “law”. Austin’s view: The supporter of the positivists school like Hobbes, Bentham and Pufendrof are of the view that international law is not a true law as it is not binding on the states. Many other prominent jurists took the similar view. The most prominent amongst them is the
British jurist Austin who believed that law is the command of the sovereign attended by sanction in case of violation of the command. In other words law should be limited to the rules of conduct enacted by a determinate legislative authority and enforced by physical sanction. The definition of law as given by Austin basically has two parts:
- any rule which is not enacted by sovereign or superior cannot be regarded as law;
- command must be enforced by the sovereign authority.
According to him existence of both is necessary for any law to be called as “ Proper Law” and other senses of law are “ improper law” . International law is law improperly so called because it has neither sovereign authority to enact laws nor there is adequate sanction behind it.
Since the international law governs the relation of the states inter se and there is sovereign political authority of the state inter se, there is no supreme executive government to execute these laws nor there is any judicial organization with compulsory jurisdiction , it can not be said to be law. Criticism: Austin’s view has been vehemently criticized by mane jurist. According to Sir Henry Maine and Savigny Austin has not taken into consideration certain important facts which are necessary as to:
- he completely ignores the customary or unwritten laws and only treats laws enacted by the sovereign legislative authority as law.
- Laws are not only obeyed because of the fear of sanction behind them, they are also observed because of habit of mind and practice of communities.
Comparison with the contemporary international law: When Austin regarded the International Law as positive morality he was right as during that time the international community lacked legislations, a court who will settle the disputes, the sanctioning power and the enforcement machinery. But if look at the developments that has taken place at the international level we will be able to see that this statement of Austin hold no water now.
The international legislation has come into existence with treaties and conventions and has the binding force behind them. The states consider themselves bound by the laws as laid down by those treaties and conventions. When so ever there is any violation of any law in international community then the other states along with the United Nation can act against such sate who does so.
There are international courts who deal with disputes if any which arises between or among the states in the international community and the decisions given by such court binds the parties to the suit. If there is any state who does not follow the decisions of the court the Security Council has the power to enforce the decisions of the court. Oppenheim’s view: Another famous jurist Oppenheim defines law as a body of rules for human conduct within a community which by a common consent of the community shall be enforced by external power.
Thus this definition of Oppenheim has three main parts:
- there must be a community;
- there shall be a body of rules to govern the community;
- there shall be a common consent of the community that the rules be enforced by external power.
Comparison with the contemporary international law: When we look at the definition of Law as given Oppenheim and compare it with the present concept of international law, the international law satisfies all the requirement of law. There is an international community present at the international level which is the community of nation. Customs and the treaties have in them set rules which govern the conduct of the members of the international community. The international communities do accept that these set rules are binding on them and are governed by them. There have been many treaties concluded between and among the states and though there are few breaches too but it cannot refute the existence of the international law.
Thus we can deduce that no matter how law is defined by various jurists, international law more or less finds its place in the definition of law and can be said to be the true law. 3. International law as weak law International law is a law in the true sense of the term which is in turn affirmed by the state practice as well as the practices of the international judicial institutions. International law is observed by all the state atb the international level because it is crucial for the peaceful relations and cooperation.
Never the less it has to be conceded as a weak law. There are many reasons behind saying so which can be summarized as:
- International law is not as efficient and as effective as the state legislative machinery as wide options are given to the state parties through customs and treaties.
- Courts at the international level act with the consent of the state and don’t have jurisdiction to decide the disputes of al the states.
- Under International law the enforcement measures are not effective as courts do have real power to enforce its decisions.
- Rules as laid down at the international level are frequently violated by the states. International law is a weak law on the institutional side as there is no legislature, the court though present is not strong enough and has no real powers to enforce its decisions.
There is an urgent need to develop formal institutions which will be responsible for law creation and enforcement. There shall be a strong enforcement mechanism and for which the state cooperation is the need of the hour. 4. Scope of International Law: The scope of International law is wider than any other law and this can be rightly understood from the definitions given by various jurists and scholars. In ancient times the interaction between social groups was not frequent for obvious reasons. The emergence
of nation states, industrial revolution and scientific and technological advancement brought the states closer and in frequent relations with each other. This led to the foundation of practices and rules regulating their inter se relations. These rules were commonly known as “ The Law of Nations” . It has also been termed as transnational law and was not confined to merely European states but such relations can be traced back from the mutual relations adopted in the ancient India amiability of messengers and rules of war fare are some examples.
Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. International law is similarly concerned with the treatment of individuals within state boundaries.
There is thus a comprehensive regime dealing with group rights, the treatment of aliens, and the rights of refugees, international crimes, nationality problems, and human rights generally. Whilst municipal law is hierarchical or vertical in its structure (meaning that a legislature enacts binding legislation), international law is horizontal in nature.
This means that all states are sovereign and theoretically equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own.
Traditionally, sovereign states and the Holy See were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law1 have been inclusive of corporations, and even of certain individuals. North American Free Trade Agreement (NAFTA) Chapter 11.
International law in the second half of the 20th century has been developing many directions, as the complexities of life in the modern era have multiplied. As has always been emphasized, law reflects the conditions and cultural traditions of the society within which it operates. The community evolves a certain specific set of values, social, economic and political, and this makes its mark on the legal frame work of the environment in which we live. International law is a product of its environment and has developed in accordance with the prevailing notions of international relations in harmony most essential for its survival. Nevertheless there is a continuous tension between rules already established and the constantly evolving forces that seek changes within the system.
One of the major problems of international law is to determine when and how to incorporate new standards and realities of life in to the existing framework so that both law and system work simultaneously. Changes that occur with in the international community can be momentous and reverberate throughout the system. For example the advent of nuclear arms created a status quo in Europe and the balance of terror throughout the world.
The scope of international law today is immense from the regulation of space expeditions to the question of division of the ocean floor, and from the protection of human rights to the management of the international financial system, its involvement has spread out from the primary concern with the preservation of peace to all the interests of contemporary international life.
The determining factor of international law lies in its composition consisting of needs and characteristics of the international political system. International law has developed since the 17th century and has adopted the same approach in general the ideas of permanent hostility and enmity the state while internally supreme wishes to maintain its sovereignty externally and needs to cultivate other states in an increasingly inter dependant world, so it must acknowledge the right of others.
The acceptance of rights possessed by all states leads to a system to regulate and define such rights and of course obligations. International law reflects the first and fore most basic state oriented character of world politics examples can be non intervention in internal affairs territorial integrity, non use of force and equality of voting in the United Nations General Assembly.
In addition to this many factors cut across state borders and create tension in world politics, such as inadequate economic relations international concern for human rights and the rise in new technological force. State policies and balances of power both international and regional are necessary framework within which international law operates, as indeed are domestic political conditions and tensions. It is also important to note that states need law in order to seek and attain certain goals of economic well being, survival and security or ideological advancement.
The system therefore has to be certain enough for such goals to be ascertainable and flexible enough to permit changes if the situation so demands. The growth of positivism in the 19th century had the effects of focusing the concerns of international law upon sovereign states. The Nuremberg and Tokyo tribunals set up by the victorious alliance after the Second World War were vital part of the process it was recognition of individual responsibility under international law with out the usual inter position of the state. ‘Similarly in 1948 genocide convention provided for the punishment of offenders after conviction by national courts or by international criminal tribunal. The universal declaration of human rights adopted by the United Nations listed a series of political and social rights.
The European convention for the protection of human rights and fundamental freedoms signed in 1950 and the International Covenants on human rights of 1966 are of different nature and binding upon the signatories. International organizations have now been accepted as possessing rights and duties of their own and are distinctive legal personalities. The international court of justice in 1949 delivered an advisory opinion that United Nations was a subject of international law and could enforce its rights by bringing international claims. Such a ruling can be applied to other international institutions like the ILO and the FAO which have a judicial character of their own.
They have been joined by other non state entities whose importance is likely to grow in the near future. The growth of regional organizations should also be noted at the same time in this stage. Many of those were created for reasons of military security, for example, NATO and the opposing Warsaw Pact Organizations, others as an expression of regional and cultural identity, such as the OAU and OAS.
Many of these have already been referred to such as, the vital field of human rights, international economic matters concerning development, environmental despoliation, the space exploration effort and the exploitation of the resources of the oceans and deep sea bed. One can also mention the provisions relating to the bureaucracy of international institutions (international administrative law), international labour standards, health regulations and communication controls. 5. Theories of International Law: International law is a true a law in sense and it is necessary to see as to what is the true basis of international law.
There are two main Theories 1) Theories as To Law of Nature: – The jurist who adhere this theory is of the view that International law is a part of the law of nature. State follows because it is a part of the Law of Nature. J.G.Starke “ State submitted to International Law because their relations were regulated by higher law, the “ law of nature” of which International Law was but a part. Meaning of Law of Nature to understand Earlier/beginning law of nature connected with religion, regarded as Devine law, law of god and religion.
The jurist of 16th and 17th Century secularized the concept of law of nature. The credit goes to eminent jurist Grotious, he expounded secularized concept. According to him natural law was the “ Dictate of right reasons” . His followers applied as “ an ideal law, which was founded on the nature of mans a reasonable being, the body of rules which nature dictates to human reasons” It is binding because applied in special circumstances. Natural law is the base of International law According to Vattel 18th Century jurist. Pufendorf, Christian etc. are other prominent exponents of law of nature.
Criticism; General objection each theorist uses it as a metaphor. Different jurist gives different meaning, such as reasons, justice, utility, general interest of international community etc. It’s very vague and uncertain. It’s not based on actual practice and realities of State.
Still it influenced the growth of International law. Traces of “ Law of Nature” theory survive today, albeit in a much less dogmatic form. 2) Theory Of Positivism; – This theory is based on law positivism i.e. law which is in fact as contrasted with law which ought to be. According to Positivist “ law enacted by appropriate legislative authority is binding” . It is based on actual practices of states. Treaties and customs are the main source. It was vague in 18th century.
Bynker shoek is the main or the chief exponent. In the ultimate analysis, will of the state is the main source of International law .J.G.Starke “ International Law can in logic be reduced to a system of rules depending for their validity only on the fact that states have consented to them” . Briely pointed out that” International law is the sum of rules by which states have consented to be bound and that nothing can be law to which they have not consented to be bound” . The concept of state will was first propounded by Hagel he is a German philosopher.
According to positivist, international law is a body of rules which has been consented to by the states and accepted as binding by way of voluntary restriction or auto limitation. Anzilotti is the chief exponent explains “ the binding force of International Law is founded on a supreme principle or norm known as Pacta Sunt Servanda” .The basis of each rule of International Law is in Pacta Sunt Servanda some or the other way.
Criticism Mostly based on actual practices of states, but this view has been subjected to lot of criticism. Concept of the will of states purely metaphorical. Based on consent of state is far from truth. Like custom is evident from a general practice accepted by law. It is not required there should be any express recognition by states.
This practice is binding upon them and the “ consent of states” has tried to establish that the rules of International customs are based on “ tacit agreements” between states .but in reality it is not possible to prove that these rules comes into existence in such a way. • The fact that the new state entering into the community of nations at once becomes bound by the international customary rules and in this no consent is taken by that particular state ,Because it is already existing, on the other hand the new state is not bound by any international convention already in force unless it expressly adheres to it. • • It is not necessary to show that a particular rule of general international law, the state had given there consent.
There are certain principles of international law which are applicable for states whether they have given the consent or not. Like in UN Charter Art 2(6) provides “ the other state who were not the members act in accordance with the principles. (Contained in Art 2 of the charter, for the maintenance of international peace and security. • “ Pacta Sunt Servanda” arises from Pacta. Other Theories 1) Theory of Consent: – Consent of states is the basis of International Law. The states observe rules because they have given the consent .Positivist supports this theory abolished by most theorists, it seems uncompatiable with the fact that not all obligation under international law
.States are bound observe customary rules of International law, because they have given their implied consent for there acceptance .It is a state oriented theory. Criticism States are bound by International law whether they have given the consent or not. 2) Auto Limitation: – International Law is binding upon States because they have restricted their powers through the process of Auto Limitation and never agreed to abide by International law. It is also based on positivist. Jellinck is the chief exponent of this theory
. The basis of this theory is this that each state has a will which is completely independent and free from external influences, but with the process of auto limitation sate can restrict their powers. “ States are not bound to follow international law because they are independent and sovereign but the state can make themselves bound by rules of international law by restricting its powers. Criticism Based on presumption that there exist a state will, in fact the will of the state is nothing but the will of the people who compose it. Auto limitation is no limitation at all. States can free itself from self-imposed restriction its will. In practice it is not possible. 3) Pacta Sunt Servanda:- Anzilotti is the chief exponent.
According to him the binding force of International law is based on the supreme fundamental norm or principle, known as Pacta Sunt Servanda, means the agreement entered into by states will be respected and followed by them in good faith. The positivist supports this theory. Criticism • It can not be admitted that it is very important principle.
If a state does not follow the agreement there would be anarchy and disorder in international field. It is far from the truth. It fails to explain the binding force of customary rules of international law. Theory of Fundamental Rights: – This theory is based on naturalistic view point. Prior to the existence of state man used to live in natural state and even in that state he possessed some fundamental rights such as independent, equality, right to selfpreservation like man states also possessed these rights and no one is above the states.
Criticism Criticism by J.L.Briely • A new state is admitted to family of nations it brings with it certain fundamental rights which are inherent. As a matter of fact such right is meaningless unless there is a legal system binding on them. • It can not be commended because it is in favour of giving more freedom to the states and lays less emphasis on social relations and co-operation among the states. • These rights are as a result of historical development.
New trends regarding basis of obligation in international law Since the beginning of modern international law, consent has been the basis of obligation under international law. Consent played a predominance role that it was even extended to explain the basis of customary rules of international law.
The positivists tried to establish that international customs were based on “ tacit-agreements” between states. The unanimity rule was the prevailing rule for every conference and treaty was bound by it. The United Nation charter introduced majority rules in all of its organs and which is having a binding force.(like General assembly. Security Council etc.). A unique feature of new international law is that it is found not only in law making conferences but also in law creating conferences such as UNCTAZ, GATT, IBRD, IMD, OECD, OPEC etc.
One of the most important change is that has taken place is that many a decisions at international conferences and General assembly of the UN are being adopted by ‘consensus’ . Though the unanimity rule has not been completely defeated, the basis of obligation in international law is changing from sovereignty oriented consent to community oriented consensus. The international court of justice has also lent its support to the above mentioned change i.e. from sovereignty oriented consent to community oriented consensus.
This undoubtedly is a clear triumph of community oriented consensus over sovereignty oriented consent. But the battle has not been finally won and the struggle is likely to a prolonged one. As a matter of fact, consent will continue to be a basis of obligation and there should be no objection to it, but in view of even widening scope of international law it has become necessary to recognize the importance and utility of ‘consensus’ as a basis of obligation in international law. It is therefore, necessary to enunciate a dynamic and comprehensive theory international community as a whole. of basis of obligation so that it may take into account the interest and inspirations of
6. Relevancy of international Law: International law has emerged & grown to fulfill the essential needs of men organized in separate communities & national entities bound together by common bonds of geography & civilization. The political order of the world is divided into three kinds of nations/ states according to their political, social, economic & cultural backgrounds as to:
a) The western or the capitalist countries are known as First World Countries. b) The Communist or Socialist countries of East Europe, Latin America & China are known as Second World Countries. c) The developing or under-developed countries of Asia & Africa are coined as Third World countries. International Law is to be found in the history of ancient & medieval as well as modern times of each kind of political communities. Contribution of the first world countries:
The foundation of International Law as it is understood today lie firmly in the development of western countries & political organizations. Ancient Greece & Rome were divided into small city-states & the mutual relation or these states are governed by some definite rules & principles. They deserved the credit of developing the laws of• • • War & peace; Resolving the dispute through Arbitration; Prior declaration before the commencement of the war.
The modern International Law is ordinarily regarded as dating from sixteenth & seventeen