International Law Unit 1.docx

International Law Definitions Oppenheim- Law of nations or international law is the name for the body of customary and treaty rules which are considered legally binding by states in their intercourse with each other. Starke-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 relations with each other, and which includes also-(a) the rules of law relating to the functioning of international institutions or organizations, their relations with each other and their relations with states and individuals and (b) certain rules of law relating to individuals and non-state entities so far as the rights or duties of such individuals and non-state entities are the concern of the international community. Schwarzenberger- The body of legal rules which apply between sovereign states and such other entities as have been granted international personality. Nature There are two viewpoints dealing with the true nature of International law. • One view is that International Law is not a true law rather it is a code of rules of conduct of moral force only. • Another view is that International law is a true law as that of ordinary laws of a State which are binding upon the individuals. A. International Law is not a true Law • At the turn of nineteenth century, the English philosopher John Austin elaborated a theory of law based upon the notion of a sovereign issuing a command backed by a sanction or punishment. • He asserted: “Law is a command of determinate superior authority, sovereign, which is binding on the subordinates and is enforceable by sanction in case of violation of the command. The definition contains two important elements: 1. Law is a command enacted by the sovereign legislative authority, i.e. any rule which is not enacted by sovereign or superior cannot be regarded as law; 2. Command must be enforced by the sovereign authority, i.e. if laws are violated, there should be adequate sanction behind it. Hobbes, Bentham and Pufendorf are of the view that International law is not legally

binding on states. As per Austin, International Law cannot be called law proper in the true sense because of the following reasons: 1. It does not have sovereign legislative authority to enact law, 2. Also there is not an adequate sanction behind it. 1. International law has no legislature The General Assembly of the Untied Nations comprising delegates from all the member states exists, but, as per Article 17(1) of the UN Charter, its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. 2. There is no system of courts The International court of Justice exists at The Hague. As per Article 36 of the Statute of the International Court of Justice, it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with. 3. There is no executive or governing entity The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members (USA; USSR, now the Russian Federation; China; France and the United Kingdom). Thus, if there is no identifiable institution either to establish rules, or to clarity them or see that those who break them are punished, how can what is called international law be law? Since international law did not fit within that definition, John Austin relegated it to the category of ʻpositive morality. B. International Law is a true law Oppenheim says that law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power. • This definition is threefold. Firstly, there must be a community; Secondly, there must be a body of rules for human conduct within that community, so that the community may be orderly governed. All the communities submit to the dignity of men and nations, Thirdly, there must be common consent of that community that these rules shall be enforced by external powers. In other words, it means that it is not necessary that rules should be enacted through

a law-making authority or there should exist, a law administering court within the community concerned. The three requirements of this definition are satisfied by International Law, to a greater or lesser extent. Further, International Law is true law is evident even if Austinʼs definition is accepted. Austin regarded International Law as a ʻpositive moralityʼ in the nineteenth century, when International Community lacked legislation, a court, sanctioning powers and enforcement machinery. 1. International Legislation: Presently, International legislation has come into existence as a result of multinational treaties and conventions which includes ʻjus cogensʼ which reduces the area for the operation of purely consensual rules, and establishes that within the general body of rules of International law there exists superior legal rules.At present world, in reality is regarded as an international community. A set of rules in the form of custom and treaties exist for regulating the conduct of the members of that community, for e.g. in the foreign offices, national courts and other governmental organs of states as well as in international organisations such as the United Nations. The legally binding force of International Law has been asserted by many states in various international forums from time to time. Many states have incorporated International Law as part of the law of the land in their constitution. 2. Sanctions Practice of states suggests that they consider themselves bound by such rules. If rules are violated by a state, sanctions may be applied against it not only by the aggrieved state itself but collectively by the UNO. • There is no unified system of sanctions in international law in the sense that there is in municipal law. However, there are circumstances in which the use of force is regarded as justified and legal.Within the United Nations system, as per Chapter VII of the UN Charter, sanctions may be imposed by the Security Council upon the determination of a threat to the peace, breach of peace or act of aggression. Such sanctions may be economic, or military, or indeed both. 3. Court • International Community has International Court of Justice, whose decisions are binding upon the parties to a case. • If a party fails to perform its obligations incumbent upon it under a judgment rendered by the Court, Security Council of the UN is empowered to take measures

to enforce the decisions of the Court, if the aggrieved party seeks the help of the Council. Relationship between Municipal Law and International Law As to relationship between municipal law and international law there are many theories the most prominent one of which may be discussed as under: I. Dualistic Theory: - According to the followers of this theory Municipal law and International law are two separate, distinct and self-contained legal orders, independent from each other. Both the orders enjoy its own spheres and each one is the supreme in its own sphere. They accepts the separate and independent existence because, according to them, there are following points of distinctions between both the orders: 1. Sources: - The sources of both the systems are quite different. Municipal law has its source in the land legislature, while International law has its sources in treaties, entered into by different sovereign states, international customs and general principals of law etc. 2. Subject: - The subjects of both the systems are different. As for as, Municipal is concerned that is an order of the sovereign of the state addressed to the individuals, while at the other hand the subjects of the international law are the states, and to the lesser extent other actors including individuals. In other words Municipal law is between the individuals and international law is between the sovereign states. 3. Principles: - Municipal law is the aggregate of the principles of state legislature, while International law is obeyed because of principle “Pacta sunt servanda.” At the other hand, municipal law has a legal sanctity while International is obeyed because states are morally bound to observe. 4. Dynamism: - It is a unique characteristic of International law that it continuously changes and expands while municipal law remains limited. So, on the basis of the following points of distinction between the two legal systems the supporters of Dualistic Theory contend that they both are separate and distinct orders having separate spheres of application. II. Monistic Theory: - According to the followers of this theory International law is not distinct and autonomous body of law, rather there exists only one sets of legal system i.e. the domestic legal order. They have criticized the view adopted by Dualists, and also rejected the alleged distinction between Municipal law and International law as pointed out by the dualists. According to them both the international law and municipal law are related with the same legal system. And it is not possible to treat them severely.

Sources of International Law 1. Treaties: At present international treaties are the most important source of international law. Article 38(1)(a) of the statute of the international Court of Justice lays down that the Court while deciding any dispute shall apply international conventions which are expressly recognized by the contesting states. Treaties therefore have acquired a dominant importance in international law. Treaties are agreements between two or more states by which they create or intend to create a relationship between themselves. 2. Custom: Custom is the original and the oldest source of international law and at the time it was the most important among the other sources. Custom is the foundation stone of the modern international law. It was so because a large part of international law consists of customary rules. International custom evolve through the practiced and usages of nations and their recognition by the community of nations. Customary rules are referred to those rules which are practiced by most of the states.

3. Judicial Decisions: Judicial decision as the source of international law can be discuss in following points: a. International Court of Justice: In modern period international court of justice is the main International Judicial Tribunal. However, however it should be noted that the decision of International Court of Justice does not create a binding general rule of International Law. b. Awards of International Tribunal: Awards of international tribunal such as the ‘Permanent Court of Justice’, ‘American Mixed Claim Tribunal etc. c. State Judicial Decision: the state/domestic judicial decision helps in development of international law in some context. d. Juristic Work: although the judicial work can’t be treated as an independent source of international law; yet the view of the jurists may help in the development of law.

4. General principle of law recognized by the civilized nations: Article 38(1)(C) of the Statute of International Court of Justice recognized the General principle of law recognized by the civilized

state as the third source of international law. In the modern period it has become an important source.

5. Writing of Jurists: Text books or writing of the jurists are one of the important sources of international law. The writings of – Ayala, Grotious, Puffendorf, Bynkershock, Vattel etc has make undoubted contribution in the development of international law

6. Equity: The term equity as a source of international law is used in the sense of consideration of fairness, reasonableness and policy often necessary for the sensible application of more settled rule of law. It is to be noted that equity has not been mentioned by the Statute of International Court of Justice as the source of international law. However, it is of great importance in the field where rules are not readily available. The Court in such cases can not refrain itself from rendering justice on the ground that law is silent.

7. Resolutions of the General Assembly: Resolutions of the General Assembly is also one of the sources of international law. Though Resolutions of the General Assembly of U.N do not possess legal character and as such are not binding on the States.