Author: Pankhuri Agrawal, Research Associate
The legal universe has been broadly divided into two parts- the International Law that deals with the rules governing relations of nation states and the domestic law, which deals with the rules operating within a state governing the conduct of its subjects. The term “International Law” is used for the first time by Jeremy Bentham in ‘Principles of Morals and Legislation’ published in1789 ((Rebecca Wallace & Olga Martin-Ortega, International Law, Sweet & Maxwell, 6th ed., p. 2.)). There are two disciplines of International Law: public and private.
The Public International Law governs the intergovernmental activities while the Private International Law governs the activities of individuals, corporations and other private entities when crossed the national borders ((Mark Weston Janis, International Law, Aspen Publishers, 6th ed)). There have been several attempts to define the International Law for the difficulty is being posed by the mere foggy nature of it.
According to Kelsen, “International Law or the Law of Nations is the name of a body of rules which according to the usual definition regulate the conduct of States in their intercourse with one another’ ((Hans Kelsen, Principles of International Law, Rinehart, 1952, p. 3)). International Law is that branch of law which relates to the conduct of independent states who have certain inherent powers and are not subject to external political power ((Roland R. Foulke, Definition and Nature of International Law, Columbia Law Review, Vol. 19, No. 6 (Dec., 1919), pp. 429-466)). International Law, therefore, is the conception in terms of order of the conduct of independent states as influenced by external and internal factors, from which the external factors are excluded like the forces of nature and external political power, which we may call the jural conception of the conduct ((ibid)).
Professor L. Oppenheim believed that it is essentially a product of Christian civilization and began gradually to grow from the second half of the Middle Ages ((Robert Jennings & Arthur Watts KCMG QC, Oppenheim International Law, Vol. 1 , 8th ed. (1970 reprint), p 6)). The scholars have hesitated to accept this view for many principles of the International Law have their source form the ancient period. In the first edition of Oppenheim, it is stated that “a Federal State is a perpetual union of several Sovereign States which has organs of its own and is invested with a power, not only over the member-States, but also over their citizens. The union is based, first, on an international treaty of the member-States, and, secondly, on a subsequently accepted constitution of the Federal State.” Oppenheim’s most basic idea was that International Law is the law of an international society of mutually recognized states, which he called the Family of Nations ((Benedict Kingsbury, Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa)). According to Oppenheim, Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other ((L. Oppenheim, International Law, Longmans Green, Vol. 1, 1905 pp. 1-2)). The close analysis of the proposed definition of International Law by him unveils certain loopholes to be remedied for the advancement of legal system.
- The wings of modern International Law have been spread to include the International organizations within its ambit, thus not restricted only to the States as evident by the definition. In fact, the future of International Law is one with the future of international organizations ((Percy E. Corbett, Law and Society in the Relation of States, New York: Harcourt, Brace and Company, 1951, p. 12.)).
- The Western States regarded only the ‘Christian States’ as ‘Civilized States’ leading to an illogical criterion in the international legal system. The difficulty has been overcome by later editors of Oppenheim’s book by deleting the term ‘civilized’ from the definition.
- 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 ((W. Freidmann, The Changing Structure of International Law, London: Stevens, 1964, p. 57)). At present, the International Law governs the relations between States and International organizations, between States and private persons, and between International Organizations and private persons. Thus, the constricted definition of Oppenheim is no longer tenable in the modern world. The later edition of his book mentions “It must be noted that although the rules of International Law are primarily those which govern the relation of states, the latter are not only subjects of International Law. International Organizations and to some extent, also individuals may be subjects of rights conferred and duties imposed by International Law” ((L. Oppenheim & H. Lauterpacht, International law- A Treatise, Vol. 1, 8th ed. pp 5-6.)).
- The Statute of International Court of Justice has recognized ‘General Principles of Law’ under Article 38 as the third source of International Law. It is in addition to the already mentioned two sources in the definition given by Oppenheim.
- The definition prescribes International Law as ‘body of rules’ departing from the existing philosophical development where law is understood as a process, not a body of self- executing rules. International Law is today actively and continuously concerned with such divergent and vital matters as human rights, crimes against peace and humanity, health regulations etc ((W. Freidmann, Some Impacts of Social Organizations on international Law, American Journal of International Law, Vol. 50, No. 3, 1956, p. 477)).
- His conception may be described as narrowly statist with regard to the composition of international society and agency within it; broadly pluralist with regard to the pursuit of diverging state interests and values; and geographically limited but potentially universalizable ((Benedict Kingsbury, Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law, European Journal of International Law, Vol. 13, No. 2, 2002, pp. 401-436)).
Sir Robert Jennings and Sir Arthur Watts have revised Oppenheim’s 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…To the extent that bodies other than States directly possess some rights, power and duties in International Law they can be regarded as subjects of interna6tional law, possessing international personality” ((Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law, 9th ed. Longman Group U.K. Limited,
1992, Vol. 1, p. 16)). Unfortunately, the definitions still lacks the inclusion of General Principles of Law as recognized by civilized nations of the world as one among the sources of International Law.
According to Brierly, the Law of Nations or International Law may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another ((Sir Huphrey Waldock, Brierly’s Law of Nations, 6th ed., 1963, p. 53)). Modern technology has brought states and their people into closer and more frequent contact with each other and accordingly rules had to evolve so that such contact is regulated ((supra 1)). The subject matter of International Law has also expanded, and the international legal system encompasses within its ambit subject matter which traditionally was regarded as being exclusively within a state’s domestic jurisdiction ((ibid)). The flexible and ever evolving International Law should not be defined in a rigid and outmoded traditional manner.
Starke defines it as the body of law “which is composed for its greater part of the principles and the rules of conduct which State feel themselves bound to observe, and therefore, do commonly observe in their relations with each other and which also includes: (a) the rules of law relating to the functioning of international institutions and organizations, their relations with h states and individuals and (b) certain rules of law relating to individuals and non-State entities are the concerns of the international community” ((J. G. Starke, Introduction to International Law, Butterworths Law, 10th ed., 1989, p. 3)). Starke has tried to widen the scope of the area of operation of International Law because of the radical developments that took place since the beginning of the twentieth century, especially after the creation of United Nations. The close analysis of the definition as proposed by him shows his intention to primarily consider the International Law in relation to the governance of the intra-state relations. The specific reference to certain international entities restricts the definition to be the principal guidance for the modern era where new concepts, principles and entities are in geometric progression. Interestingly Schwarzenberger has tried to overcome such difficulties while defining International Law. He defines “International Law as the body of legal rules which apply between sovereign States and such other entities as have been granted international personality ((Georg Schwarzenberger, A Manual of International Law, Vol. 1, 6th ed., 1976)).”
International Law is a corpus of treaties, agreements, customs, state practices, decisions of tribunals etc. by which states agree to abide ((Lesley Dingle, Sources of Public International Law, Legal Information Management, Vol. 9, Issue 4, December,
2009)). Ross used the vicious circle to define International Law: (1) A definition of International Law as the law valid between states; (2) A definition of the state by the concept of sovereignty; and (3) A definition –explicit or implicit — of sovereignty as sole subjection to International Law ((Ole Spiermann, A National Lawyer Takes Stock: Professor Ross’ Textbook and Other Forays Into International Law, European Journal of International Law, Vol. 14, Issue 4, pp. 675-702)). In S.S. Lotus case, International Law was defined as “International Law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restriction upon the independence of States cannot therefore be presumed ((1927 P.C.I.J. Series A. No. 10 p. 18)).”
The American Law Institute’s Restatement of the Foreign Relations Law of the United States (Third) (1987) defines ‘International Law’ in Section 101 as it consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relation inter-se, as well as with some of their relations with persons, whether natural or juridical. The breaches of International Law leading to wars or armed conflicts, non-observance of treaty obligations and other blatant violations of International Law are quoted as example of total absence of an international legal system ((S.K.Verma, An Introduction of Public International Law, PHI Learning Pvt. Ltd., 1998)). Though the concept of International Law suffers from various existential questions but after a long period of tussle relating to its acceptance, presently, the countries of the world have come together with a constant demand for international legislation and regulation to govern such uncontrollable situations which can only be remedied with the help of International organizations and institutions. The sky above has witnessed the irresistible urge to fall down as a conciliator for the various horrendous and intricately complicate issues being arisen since the 20th century. The attempt of scholars and professors to define such an unstable and an unpredictable arena is commendable, but the ever-increasing horizon and dimension of International Law calls for a self-sustainable definition and explanation.