Definition of International Law1
I.L.Oppenheim-Professor Oppenheim has defined international law in the following words:
“Law of nations or international Law is the name for the body of customary and conventional rules which are considered legally binding by civilised states in their intercourse with each other.”
This definition was given by Oppenheim in 1905. A critical discussion of Oppenheim’s definition is made below with a view to show and highlight the changes that have taken place in the concept and definition of Public International law during the last decades.
Criticism-
Professor Oppenheim’s definition suffers from several serious defects. It might have been good and adequate when it was given but now it has outlived its utility and has become obsolete and inadequate. “Indeed every important element in it can now be challenged.”
The definition of Oppenheim has been subjected to following criticism:-
(i) In the first place….”it is now generally recognised that, not only “states’ but public international organisations, have rights and duties under International Law, even though they may not have all the rights and duties that states have”. In fact the future of International law is one with the future of international organisation.”
(ii) The use of the term ‘civilised states’ by Oppenheim is also severely criticised. The criterion of distinguishing so-called ‘uncivilised states’ was neither long history nor culture. Even though China had 5,000
years of old culture, she was not included in the group of civilised states. So was the case of oriental states. In not too distant past, the western states regarded only the ‘Christian states’ as ‘civilised states’. That is why, in later editions of Oppenheim’s book the term ‘civilised states’ have been deleted. For example in eighth edition of Oppenheim’s book, International law has been defined in the following words:
“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.”
(iii) Thirdly, “More controversial but no longer untenable is the view that even individuals and other private persons may have some such rights and duties.”
Of all the changes that have taken place in the international law since the Second World War, the most important change has been the addition of new subjects. The main change that has taken place is that from the formal structure of relation of states it is moving towards the interests and welfare of citizens of member states.
As Jenks has rightly remarked: “Contemporary International Law can no longer be reasonably presented within the framework of the classical exposition of International Law as the law governing the relations between states but must be regarded as the common law of mankind in an early stage of development.
(iv) Fourthly, “ it is now widely recognised that International Law consists not only of customary and conventional rules but also of ‘General Principles of Law’. Article 38 of the Statute of the International Court
of Justice mentions ‘General Principles of Law Recognised by Civilised states’ as the third source in order under which the source of of International law are to be used while deciding on international dispute. That is to say, if the court does not find any International treaty or International custom on a particular point under dispute, the Court may take the help of ‘General Principles of Law Recognised by Civilised states.
(v) Fifthly, “ the very conception that international law as a “body of rules” now stands changed as static and inadequate.” Further, “ Like all living law, international law does not stand still but is continuously reinterpreted and reshaped in the very process of its application by authoritative decision makers, national and international. International law, or any law for that matter is a dynamic concept. Law changes with the change of time and circumstances. A law to be living, must be flexible, adaptable and changeable.
New Definition of International Law in Ninth edition of Oppenheim’s Book
“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 relation of states, but states are not the only subjects of international law. International organisations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.”
Basis of International Law-Jurisprudential theories
The controversy whether international law is a law or not revolves on the divergent definitions of the word ‘law’ given by the jurists. If we subscribe to the view of Hobbes, Austin and Pufendorf that law is a command of sovereign, enforced by a superior political authority, then international law cannot be included in the category of law. On the other hand if we subscribe to the view that the term ‘law’ cannot be limited to the rules enacted by superior political authority, then international law can be included in the category of law. Thus the jurists are divided into two main groups in regard to the legal character of the norms of international law.
Hobbes, pufendorf and Austin subscribe to the view that law “properly so called” is a command of the sovereign and is enforced by a superior political authority. Since law is the command of a determinate superior, no law can exist where there is no supreme law giver and no coercive enforcement agency.
According to Austin , law is given by determinate superior political authority to political inferiors and is backed by a coercive enforcement agency. Thus in view of Austin sanction occupies an important place in the enforcement of law. People follow law because they fear that if they do not do so, they might be compelled and even punished. According to Hobbes, man is by nature nasty, brutish and violent and fear or sanction which is inherent in law is necessary to maintain order in society.
Thus we see that those jurists who deny the legal character of international law regard law as the command of the sovereign and having a coercive enforcement agency. In view of these writers, the rules commonly called international law, are in fact the rules of ‘postive morality’. Holland,Jeremy Bentham etc, are other prominent jurists who deny the legal character of international law.
In support of their view-point these jurists put forward the following arguments:
(1) In munincipal law, there is a determinate superior political authority which does not exists in international law.(2) As compared to municipal law, international law lacks an effective legislative machinery .(3) International law lacks sanction which, according to the writers of this pursuasion, is an essential element of law.(4) There is no such executive power in International Law as may enforce the decisions of the International Court of Justice and ensure the observance of the provisions of the treaties.(5) International law lacks a potent judiciary(6) Some writers call international law a quasi law.
International Law is Really Law Most of the jurists now subscribe to the view that International law is really law. So far as the sanction or coercive force behind the law is concerned, it may be
said that it is not an essential element of law and even if sanction is regarded as an essential element of law there are sanctions in international law.
The arguments of the jurists who regard international law as really law, may be summed up as follows:
(1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. Sir Henry Maine, one of chief exponents of historical school of jurisprudence, carried on research on historical jurisprudence and firmly established that in primitive society there was no sovereign political authority yet there were laws.
(2)The Austinian concept of law fails to account for the customary rules of international law. If we accept the Austinian definition of law common law of England will lost its legal validity.
(3)Customary rules of international law are diminishing and are being replaced by law making treaties and conventions. Today, the bulk of international law comprises of rules laid down by various law-making treaties, such as Geneva and Hague conventions. The rules laid down by these treaties are binding although they do not emanate from sovereign political authority.
(4)When international questions arise, States do not rely upon moral arguments but rely upon treaties, precedents and opinions of specialists.
(5)States do not deny the existence of international law. On the contrary, they interpret international law so as to justify their conduct.
(6)In some State (e.g.USA and U.K.), international law is treated as part of their own law. A leading case on the point is the Paquete v. Habanna, wherein Justice Gray observed, “ International law is a part of our law, and must be ascertained and administered by courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented to their determination.
(7)As per the statute of ICJ, the ICJ has to decide disputes as are submitted to it in accordance with international law.
(8)International conference and conventions also treat international law as law in its true sense.
(9) The United Nations is based on the true legality of international law.
(10) So far as sanction is concerned, international law does not completely lack it.
(11) It is true that International law is frequently violated but it does not mean that international law is not law. Even state or municipal law is violated. Frequent violations of law indicate the weakness of enforcement machinery and have nothing to do with the legality of the rules. Legality of rules and enforcement of rules of law are two different things.
(12) The decisions of the International court of justice are binding upon the parties to a dispute and only in respect of that dispute. The powers and jurisdiction of international court of justice are not equivalent to the Municipal Court bu under certain conditions, its decisions can be enforced. Article 94 of the U.N.Charter provides that each member of the U.N. undertakes to comply with the decision of the International court of justice. It further provides that if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the court, the other party may have recourse to the security council,which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
On the basis of the above arguments, it may be concluded that international law is really law. However, it has to be admitted that international law is not equivalent to municipal law. “It is obvious that international law unlike municipal law, operates in a decentralised political system. There is not world legislature, not international policies, and no international court with compulsory jurisdiction. Starke has expressed the view that international law is a weak law.
Basis of International Law: Jurisprudential Theories2
2 S,K,KAPOOR, PAGE 52-53.
After having arrived at the conclusion that International Law is Law in the true sense of the term, it is necessary to see as to what is the true basis of international law. There are two main theories in this connection. They are: (1) Theories as to Law of Nature; and (2) Positivism.
(1)Theories as to Law of Nature- The jurists who adhere to this theory, are of the view that International Law is a part of the Law of nature. In their view, States follow international law, because it is a part of the Law of nature. In order to understand this theory, it is necessary to understand the meaning of ‘Law of nature’. In the beginning, Law of Nature was connected with religion. It was regarded as the divine law. The jurists of 16th and 17th centuries secularised the concept of Law of Nature. He expounded the secularised concept of the Law of Nature. According to him, natural law was ‘the dictate of right reason’. His followers applied the law of nature as an ideal which was founded on the nature of man as a reasonable being. International law was considered binding because it was in fact, natural law applied in special circumstances. Vattel, a famous jurist of 18th century also expressed the view that natural law was the basis of international law.
(2) Positivism:
Positivism is based on law positivisum i.e. law which is in fact as contrasted with law which ought to be. According to the positivists, law enacted appropriate legislative authority is binding. The positivists base their views on the actual practice of the States. In their view, treaties and customs are the main sources of International law.
In the view of the positivists, in the ultimate analysis, will of the States is the main source of International Law.
Sanctions of International Law
In the view of Kelsen, the distinguishing feature of law is that it is a ‘coercive order’; the rules of law be connected with a sanction. From the viewpoint even of the legal system, force must be either a sanction or delinquency. In the international field, sanctions exist in the form of war and reprisal. The difference between the municipal law of States and international law would consist in the degree of centralisation as regards the use of force; within the
state, force is monopolised by the community, but in the society of State a legitimate use of force may be made by the subjects of law, the individual States. As a matter of fact, it would be wrong to say that there are no sanctions at all behind international law although it is true that as compared to municipal law the sanctions of international law are far less effective.
state, force is monopolised by the community, but in the society of State a legitimate use of force may be made by the subjects of law, the individual States. As a matter of fact, it would be wrong to say that there are no sanctions at all behind international law although it is true that as compared to municipal law the sanctions of international law are far less effective.
Starke has pointed out the following sanctions behind the international law:
(1) Under chapter VII of the United Nations Charter, if there is threat to the international peace and security or an aggression has taken place, the Security Council can take necessary action to maintain or restore international peace and security. In this way, to some extent, the violation of international law can be checked and necessary action can be taken for maintenance of peace and security.
(2) The decision of the International Court of Justice are binding upon the parties to the dispute. Article 94 of the United Nations also provides that if a party to the dispute does not follow the decision of the Court, the other party may approach the Security Council which can take necessary measures to ensure the implementation of the decision. However, it cannot be admitted that the UN Charter does not contain any provision to maintain international law generally.
(3) Under Article 2(4) of the Charter, the members of the UN have undertaken that they shall respect the territorial integrity and political independence of each other and shall not use force against each other. There is only one example in the Charter where members may use force. That is contained under Article 51 of the Charter which confers on the members the right of individual and collective self-defence. But even this right can be exercised only when an armed attack has taken place and is subject to overall supervision and control of the Security Council.
Thus International Law is not without sanctions although these sanctions are not generally for the enforcement of international law in general. These sanctions are to maintain or restore international peace and security which is only a part of international law.
Apart from the above sanctions, other factors such as adverse public opinion, expediency, possibility of imposition of economic sanctions, fear of suspension or breaking of diplomatic relations, possibility of referring the matter of dispute to the UN or specialised agencies of the UN., fear or suspension or expulsion from the Membership of the UN or other international organisations, fear of punishment of war crimes, fear of payment of reparation etc. also operate as sanction behind international law. Indeed the most important of these sanctions is public opinion which is the ultimate sanction behind international law, and for that matter being any law.
Subjects of International Law
A subject of international law is considered to be an entity capable of possessing international rights and duties and endowed with the capacity to take certain types of action on the international plane. The terms ‘international legal person’ or ‘legal personality’ are commonly used in referring to such entities.4
Ordinarily international law deals with the rights and duties of the States. Ordinarily its rules are for States. Generally, it is the States who enter into treaties with each other and are thus bound by its provisions. This does not however, mean that other entities or individuals are outside the scope of international law. International Law applies upon individuals and certain non- state entities in addition to states.
Various theories regarding subjects of International Law5
Following are the three main theories prevalent in regard to the subjects of International law:
(1) States alone are subjects of International law
(2) Individuals alone are the subjects of International Law
(3)States are the main subjects of international law, but to a lesser extent
individuals and certain non-state entities have certain rights and duties under International Law.
1. Only states are subjects of International Law: Some jurists are of the view that International Law regulates the conduct of States and only States alone are the subjects of international law.
2. Only individuals are the subjects of international law
The chief exponent of this theory is Prof. Kelsen. Kelsen has analysed the concept of State and expressed the view that it is a technical legal concept and includes the rules of law applicable on the persons living in a definite territory. Hence, under International law the duties of the States are ultimately the duties if the individuals. Truly speaking there is no difference between international law and State law, In his view, both laws apply on the individuals and they are for the individuals.
3. States, individual and certain non-state Entities are subjects:-
This view undoubtedly appears to be far better than the first two views. (i) In the present time, several treaties have conferred upon individuals certain rights and duties. International Covenants on Human rights and 1965 Convention on the Settlement of Investment disputes between States and Nationals of other States deserves a special mention in this connection.
