| Introduction | jurisprudence |
| Relevant Case laws | Reparation for injuries suffered in service of UN |
| present problem | question related |
| conclusion | decision as per our resoning |
International Law is firstly recognised by Jeremy Bentham in 1780 as “Law of Nation”, international law is a collection of rules governing relations between states. Various jurists gave different defitions of International law, one of them is Openheim.
According to the definition of Openheim,” 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”.
But this definition is critised by many jurists are as follows;
- States: it is recognised that not only state, but also individual and International Organisation are subject of International law.
- Civilised States: By referring to International Law to only civilized states without giving any reasonable cause, the definition is creating an abnormal differentia among the states.Civilised states on that time considered only to “Christian States”.
- Customary and conventional rules: not only such rules but also general principles include in the definition of International law.
- Body of Rules: it was said that body of rules is static in nature and adequate. International law is dynamic in nature, law changes with the change in time and circumstances.
The new definition of International Law:
“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.”
Torsten Gihl Definition
Later, a new definition of International law was framed by Torsten Gihl which says:
The term International Law means the body of rules of law, which apply within the International Community or society of States.
J.G.Starke:
International Law may be defined as 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 also includes:
- The rules of law relating to the functioning of international institutions or organisations, their relations with each other, and their relations with states and individuals; and
- 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.
Hobbes, Pufendorf and Austin didn’t accept International law as Law, as their approach was, ” law is the command of sovereign backed by sanction”. According to Austin, law is that which have sanction in it and international law doesn’t contain any type of sanction, so it is not a law.
International Law is Really Law
The arguments of the jurists who regard international law, may be summed up as follows:
- 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.
- 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.
- 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.
- When international questions arise, States do not rely upon moral arguments but rely upon treaties, precedents and opinions of specialists.
- States do not deny the existence of international law. On the contrary,they interpret international law so as to justify their conduct.
- 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.
- s per the statute of ICJ, the ICJ has to decide disputes as are submitted to it in accordance with international law.
- International conference and conventions also treat international law as law in its true sense.
- The United Nations is based on the true legality of international law.
- So far as sanction is concerned, international law does not completely lack it.
- 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.
- 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.
Is International law a mere positive morality?
In order to know whether international law is a mere positive morality, it is
necessary first to know what is a rule of morality and then, what is the
difference between a rule of morality and a rule of law. As pointed out by
Oppenheim: “A rule is a rule of morality if by common consent of the
community it applies to conscience and conscience only: whereas on the other
hand, a rule is a rule of law, if by common consent of the community it will
eventually be enforced by external power. Thus rule of morality is a rule which
applies to conscience only and cannot be enforced by external power. A rule of
law on the other hand can be enforced by external power.
Theories of International law;
- Theories as 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.
- 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.
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;
- States: Some jurists are of the view that International Law regulates the conduct of States and only States alone are the subjects of international law.
- Individual: 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.
- International Organisation: international organisation are too subject of international law along with the above.
Relevant Case Laws:
Reparation for injuries suffered in service of UN
facts:
In September 1948 Count Folke Bernadotte and other members of the United Nations Mission to Palestine were allegedly assassinated by the then Israeli Government in Jerusalem. Mr. Bernadotte was an agent of the United Nations and the United Nations Mediator in Palestine. He along with other members of the United Nations were assassinated during the performance of their duties for the organisation. Later the UN General Assembly’s question concerning reparation for injuries suffered in the service of the United Nations was referred to the ICJ. (Resolution of the General Assembly dated December 3rd 1948).
issue:
Whether the United Nations had the capacity to bring an international claim against the State responsible with a view to obtaining reparation for damage caused to the Organisation and to the victim?
In what manner the action taken by the United Nations could be reconciled with such rights as might be possessed by the State of which the victim was a national?
judgement:
The International Court of Justice in 1949 delivered an Advisory Opinion14 in which it
stated that the United Nations was a subject of international law and could enforce its
rights by bringing international claims, in this case against Israel following the
assassination of Count Bernadotte, a United Nations official.
Such a ruling can be applied to embrace other international institutions, like the
International Labour Organization and the Food and Agriculture Organization, which
each have a judicial character of their own.
Thus, while states remain the primary subjects of international law, they are now joined
by other non-state entities, whose importance is likely to grow even further in the future.
The Court held that the UN had international legal personality because this was
indispensable in order to achieve the purposes and principles specified in the Charter. In
other words, it was a necessary inference from the functions and rights the organisation
was exercising and enjoying.
The court recognized the legal personality of international institutions in certain cases.
Since the nineteenth century a growing number of such organisations have appeared and
thus raised the issue of international legal personality. In principle it is now well
established that international organisations may indeed possess objective international
legal personality.
