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International Law

Nature and Development of International Law :-


International law is a system of treaties and agreements between nations that governs how nations interact with other nations, citizens of other nations, and businesses of other nations.

International law typically falls into two different categories.

  1. Private international law

  2. Public international law

"Private international law" deals with controversies between private entities, such as people or corporations, which have a significant relationship to more than one nation. For example, lawsuits arising from the toxic gas leak in Bhopal,

India from industrial plants owned by Union Carbide, a U.S. corporation would be considered a matter of private international law.

"Public international law" concerns the relationships between nations. These include standards of international behavior, the laws of the sea, economic law, diplomatic law, environmental law, human rights law, and humanitarian law. Some principles of public international law are written, or "codified" in a series of treaties, but others are not written down anywhere. These are known as "customary" laws, and nations consent to them by doing nothing.

International law is sum of rules accepted by states and to maintain their conduct accordingly.

It is the body of rules regarded by nations of world binding relations with each other and compromise rights and duty of every sovergin state.

According to article 38 of statute of international court of justice it is a law that have rules governing relations between states

Accoding to J.G starke : It is that body of law which states feel themselves bound to observe and therefore do commonly observe relations with each other it may include :-

  • Law relating to functioning of international institution or their relations with each other and relations with states.

  • A body of rules established by customs or treaty to bind relations with each other.

  • Certain rules of law relating to individuals and non state as rights and duties.

International law is an independent system of law existing outside the legal orders of particular states. It differs from domestic legal systems in a number of respects. For example, although the United Nations (UN) General Assembly, which consists of representatives of some 190 countries, has the outward appearances of a legislature, it has no power to issue binding laws. Rather, its resolutions serve only as recommendations—except in specific cases and for certain purposes within the UN system, such as determining the UN budget, admitting new members of the UN, and, with the involvement of the Security Council, electing new judges to the International Court of Justice (ICJ). Also, there is no system of courts with comprehensive jurisdiction in international law. The ICJ’s jurisdiction in contentious cases is founded upon the consent of the particular states involved. There is no international police force or comprehensive system of law enforcement, and there also is no supreme executive authority. The UN Security Council may authorize the use of force to compel states to comply with its decisions, but only in specific and limited circumstances; essentially, there must be a prior act of aggression or the threat of such an act. Moreover, any such enforcement action can be vetoed by any of the council’s five permanent members.

Historical Developments :-

Positivism’s influence peaked during the expansionist and industrial 19th century, when the notion of state sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and nonintervention in the affairs of other states—ideas that had been spread throughout the world by the European imperial powers. In the 20th century, however, positivism’s dominance in international law was undermined by the impact of two world wars, the resulting growth of international organizations—e.g., the League of Nations, founded in 1919, and the UN, founded in 1945—and the increasing importance of human rights. Having become geographically international through the colonial expansion of the European powers, international law became truly international in the first decades after World War II, when decolonization resulted in the establishment of scores of newly independent states. The varying political and economic interests and needs of these states, along with their diverse cultural backgrounds, infused the hitherto European-dominated principles and practices of international law with new influences.

The development of international law—both its rules and its institutions—is inevitably shaped by international political events. From the end of World War II until the 1990s, most events that threatened international peace and security were connected to the Cold War between the Soviet Union and its allies and the U.S.-led Western alliance. The UN Security Council was unable to function as intended, because resolutions proposed by one side were likely to be vetoed by the other. The bipolar system of alliances prompted the development of regional organizations—e.g., the warsaw pact organized by the Soviet Union and the North Atlantic Treaty Organization (NATO) established by the United States—and encouraged the proliferation of conflicts on the peripheries of the two blocs, including in Korea, Vietnam, and Berlin. Furthermore, the development of norms for protecting human rights proceeded unevenly, slowed by sharp ideological divisions.


International law and Municipal law:-

In principle, international law operates only at the international level and not within domestic legal systems:-

a perspective consistent with positivism, which recognizes international law and municipal law as distinct and independent systems. Conversely, advocates of natural law maintain that municipal and international law form a single legal system, an approach sometimes referred to as monism. Such a system, according to monists, may arise either out of a unified ethical approach emphasizing universal human rights or out of a formalistic, hierarchical approach positing the existence of one fundamental norm underpinning both international law and municipal law.

In most civil-law countries, the adoption of a treaty is a legislative act. The relationship between municipal and international law varies, and the status of an international treaty within domestic law is determined by the country’s constitutional provisions. In federal systems, the application of international law is complex, and the rules of international law are generally deemed to be part of the federal law. Although a treaty generally becomes operative only when it has been ratified by a national legislature, EU countries have agreed that regulations and decisions emanating from EU institutions are directly applicable and enforceable without the need for enabling legislation—except for legislation permitting this form of lawmaking, which is adopted upon the country’s entry into the union.

Sources of International Law :-

Sources from international law was gathered

Article 38 (1) of the international statute identifies three sources of international law: treaties, custom, and general principles. Because the system of international law is horizontal and decentralized, the creation of international laws is inevitably more complicated than the creation of laws in domestic systems.

The three sources are :

  • TREATIES

  • CUSTOMS

  • GENERAL PRINCIPALS OF LAW

TREATIES:-

A set of rules to interpret treaties has evolved. A treaty is expected to be interpreted in good faith and in accordance with the ordinary meanings of its terms, given the context, object, and purpose of the treaty. Supplementary means of interpretation and consideration of the circumstances surrounding the conclusion of the treaty, may be used when the treaty’s text is ambiguous. In certain cases, a more flexible method of treaty interpretation, based on the principle of effectiveness coupled with a broader-purposes approach (i.e., taking into account the basic purposes of the treaty in interpreting a particular provision), has been adopted. Where the treaty is also the constitutional document of an international organization, a more programmatic or purpose-oriented approach is used in order to assist the organization in coping with change.

A purpose-oriented approach also has been deemed appropriate for what have been described as “living instruments,” such as human rights treaties that establish an implementation system; in the case of the EuropeaN Convention on Human Rights of 1950, this approach has allowed the criminalization of homosexuality to be regarded as a violation of human rights in the contemporary period despite the fact that it was the norm when the treaty itself was signed.

CUSTOMS:-

The International statute refers to international custom, as evidence of a general practice accepted as law, as a second source of international law. Custom, whose importance reflects the decentralized nature of the international system, involves two fundamental elements: the actual practice of states and the acceptance by states of that practice as law. The actual practice of states (termed the “material fact”) covers various elements, including the duration, consistency, repetition, and generality of a particular kind of behaviour by states. All such elements are relevant in determining whether a practice may form the basis of a binding international custom. The ICJ has required that practices amount to a “constant and uniform usage” or be “extensive and virtually uniform” to be considered binding. Although all states may contribute to the development of a new or modified custom, they are not all equal in the process. The major states generally possess a greater significance in the establishment of customs.

For example, during the 1960s the United States and the Soviet Union played a far more crucial role in the development of customs relating to space law than did the states that had little or no practice in this area. After a practice has been established, a second element converts a mere usage into a binding custom—the practice must be accepted.

General principles of law :-

A third source of international law identified by the ICJ’s statute is “the general principles of law recognized by civilized nations.” These principles essentially provide a mechanism to address international issues not already subject either to treaty provisions or to binding customary rules. Such general principles may arise either through municipal law or through international law, and many are in fact procedural or evidential principles or those that deal with the machinery of the judicial process—

e.g., the principle, established in Chorzow Factory (1927–28), that the breach of an engagement involves an obligation to make reparation. Accordingly, in the Chorzow Factory case, Poland was obliged to pay compensation to Germany for the illegal expropriation of a factory.

Is International law a true law :-

Controversy is international law or not a law divergent definition of word LAW given by different jurist

According to some of jusrist view was law is command of sovergeign, political authority and cant be included in law. International law has some kind of incomplete definition

Austin’s View – International law is not a true law :-

According to Austin, law is the command of the sovereign punished by sanctions in case the command is violated by the individual. There must be a legislative authority enacting the rule of conduct and enforcing physical sanction. So based on what he said, it can be concluded that any rule which is not enacted by any superior or legislative authority, cannot be regarded as a law and moreover, if laws are violated, sanctions mustbeimposed. Based on that, it can be said that rules are only morally and ethically valid if they aren’t issued by any sovereign authority. If we apply this theory to International law, we will see there is no legislative power over the society, based on which Austin concluded that International laws are merely based on ethics and morality and are not true law.

Oppenheim’s View – International law:

According to him, laws are nothing but a body of rules for human conduct within a community, which can be enforced by an external power if there’s a common consent of the community for the same. Based on what he said, we can conclude that, firstly, there must be a community, secondly, a body of rule of conduct governing the community must be there and thirdly, common consent among the community for the rules to be enforced power must be present. From this, we can conclude that it’s not necessary that rules should be enacted by a legislative authority within the community for them to be legally binding.

Conclusion

International law is a true law as there are jurisdiction power and scope of international law is expanding. there are machinery for decisions. There are sanctions behind international law so it is a true and proper law.


BY NISHTHA KAREER, LAW STUDENT



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