A glimpse of Lassa Oppenheim ’s Definition of International Law

Author: Evangelia Linaki, Research Associate

During the course of time, there have been many distinguished personae, such as Hugo Grotius, Jeremy Bentham and Hersch Lauterpacht, who not only contributed to the development of legal methodology and theory of International Law but also put a great deal of effort to define International Law.Nevertheless, herein the attention will be dedicated to Lassa Oppenheim and an effort will be made for a concise overview of his thoughts on the nature of International Law to be provided.

Lassa Francis Laurence Oppenheim ((Beatson, Jack & Zimmermann Reinhard (eds.), Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain, at 583-585 (2004).))was born near Frankfurt, Germany in 1858 and died in Cambridge, the United Kingdom in 1919. Born to a wealthy Jewish father, he had the opportunity to receive extensive education, as in 1878 he started studying not only law with the then most prominent German lawyers but also metaphysics, forensic medicine and psychology.It is quite admirable that in 1889, despite the fact that he was a Jew and could have suffered the discrimination most of the Jewish underwent in the academic environment during that time, he was appointed extraordinarius professor in Freiburg, Germany with criminal law as his major subject. However, as he was aiming for a full professorship, he moved to Basle, Switzerland, where he accomplished his ambition in 1893.Due to unknown reasons, though, Oppenheim decided to move to London, the United Kingdom in 1895 where he started studying International Law. Quickly becoming an expertise in the field, he started teaching, whereas especially after his naturalisation in 1900 he kept providing the Foreign Office with legal advice. The turning point in his career was the publication of his treatise named “International Law” in 1905-1906, which led to his appointment as a Whewell Professor at Cambridge University from 1908 until 1919. His famous treatise, although it has undergone major changes, has succeeded in remaining relevant, since it has been republished by Oppenheim’s successors nine times so far.

His treatise International Law begins with the definition of the Law of Nations or International Law. It has to be pointed out that herein the second edition of the treatise is relied upon and not one of the latest, since Oppenheim was in charge of the editing for the first three editions ((See id., at 585.)). In view of the fact that this piece of work has undergone major changes in the next editions, there is a need to stay close to the ones on which the creator had still a say.

According to Oppenheim, “Law of Nations or International Law (Droit des gens, Völkerrecht) is the name for the body of customary and conventional rules which are considered legallybinding by civilised States in their intercourse with each other ((Oppenheim, Lassa, International Law: A Treatise, Vol. I, at 3 (1912).)).” It is interesting that right after the definition he goes on to distinguish among universal, general and particular International Law, in which case the first is binding upon all civilised States without exception, the second is binding upon a considerable number of States including the leading powers and the last one refers only to a small number of States ((See id.)). Moreover, he accepts the existing distinction between privateand public International Law, highlighting that only the latter represents the Law of Nations, which is to be observed by States only and not individuals ((See id., at 4.)).

As it was highly contested whether International Law is truly law and, thus, legally binding, Oppenheim tries through defining the notion of “law” to prove that International Law itself is to be abided by. Before providing the definition of law, he dismisses the argument that there has to be a sovereign political authority which sets and enforces rules for human conduct ((See id., at 5.)). According to his train of thought, he first points out that on the international plane it is impossible to have a central authority over and above sovereign States, a fact which does not,however, deprive International Law of its legally binding character ((See id.)). According to him, those who claim the opposite imply that a body of rules which refers only to written law and that customary law is applied by courts of a State in the same way as the written one ((See id.)). However, he does not agree with such way of thinking since domestic courts do not have law-giving power and, thus, when they apply customary law, it is presumed that such law has already been recognised as such by States themselves ((See id.)).

He then goes on to draw a distinction between morality and law, claiming that the former refers only to one’s conscience, whereas the latter, though referring to one’s conscience, will in the end have to be enforced by an external power ((See id., at 6.)). Another remark consists of the dismissal of the need of the existence of a law-giving authority to ascertain the law, since, as in the primitive societies it was the community who endorsed or rejected a rule of law without laying down guidelines, in contemporary times law can also be of unwritten and customary nature ((See id., at 7-8.)).

Based on such assumptions, Oppenheim identifies three essential characteristics of law: the existence of a community, a body of rules for human conduct and their enforcement by an external power ((See id., at 8.)). As a subsequent step, he turns to examine whether these elements are present on the international plane. As to whether there exists a universal community of States, he strives to identify the nature of a community as a body of individuals who are generally dependent upon each other through the existence of common interests ((See id., at 10.)). According to Oppenheim, a community can refer not only to individuals but also to States and the existence of an international community should not be contested, in view of the fact that the civilised States are not only interconnected by common Christian religious ideas but also by common interests in fundamental fields, such as trade, agriculture and industry ((See id., at 11.)). It should be noted that the existence of the Family of Nations is fundamental for the existence and further development of International Law, although its composition seems to be static and limited to “civilised” States of Europe and the Americas ((Kingsbury, Benedict, Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law, 13 EJIL 401, at 409-412 (2002).)).

With regard to the second criterion, Oppenheim thinks that this can be settled with relatively no difficulty since an abundance of customary rules have been evolved, whereas written rules are more and more often created and steps have been taken towards the central organisation of the international community ((See Oppenheim, supra note 3, at 12.)). As far as the third condition is concerned, the mere inexistence of a central external authority with the mandate to enforce rules should not be considered as a defect, rather this criterion should be regarded as met since States themselves ensure the necessary enforcement through a self-help and intervention system by supporting those experiencing the effects of a rule violation ((See id., at 13-14.)). Within this context, it should be noted that the balance of power constitutes a prerequisite for the existence of International Law, since it is the mechanism through which the respect of International Law is guaranteed ((Kingsbury, supra note 15, at 16-21.)).

A basic notion within this context seems to be that of “common consent”. Once again Oppenheim starts from the community level, at which the majority of the community members by consenting on a specific legal issue at a given time create law which in turn endures time and binds next generations ((See id., at 16.)). Nevertheless, the international community’s composition does not alter so often and new States have to be admitted in the Family of Nations through recognition ((See id., at 17.)). Within this framework, the common practice that States have followed in response to a certain issue and their belief in the need for binding rules shows their consent to the creation of customary rules ((See id., at 17-18.)). According to Oppenheim, it is not necessary to prove that each State has concurred to the creation of a rule, but each one of them is to be bound by all settled rules with no possibility to deny compliance with specific rules in the future ((See id., at 18-19.)).

It should also be highlighted that, according to Oppenheim’s definition, only custom and treaties make up of the body of International Law. On the one hand, custom can be ascertained by State practice and the conviction of States that such practice is legally binding ((See id., at 22-23.)). On the other hand, the only treaties that should be taken into account when referring to International Law are those called by Oppenheim “law-making treaties”, which lay down new rules, confirm, define or abolish existing customary or other treaty rules ((See id., at 23-24.)).

In view of the overview of Oppenheim’s definition of International Law, it has been acknowledged that Oppenheim’s International Law “still is the outstanding and most frequently employed systematic treatise on the subject ((Nussbaum, Arthur, A Concise History of the Law of Nations, at 247 (1954).)),” that “the original book reveals only small traces of a national standpoint”and “its success is rather due to a clear systematic approach underlying Oppenheim’s legal theory ((Schmoeckel, Mathias, The Internationalist as a Scientist and Herald: Lassa Oppenheim, 11 EJIL 699, at 701 (2000).)).” Nevertheless, it has also been mentioned that the whole treatise relies only on very few examples of state practice, seems to simply reject arguments with regard to natural law and the empirical data is largely anecdotal ((Reisman, Michael W., Lassa Oppenheim’s Nine Lives, 19 Yale J. Int’l L. 255, at 264-265 (1994).)). Moreover, it has been pointed out that Oppenheim treats customary law as a system of clearly defined rules, whereas in reality the common law system is inherently vague ((Craven, Matthew, Fitzmaurice, Malgosia, Vogiatzi, Maria,Time, History and International Law, at 96 (2007).)).

What it could also be pointed out is that Oppenheim’s definition of International Law refers to States only, excluding the possibility for any other international actor, such as individuals and international organisations, to be bound by such body of rules. On the other hand, the rules to be observed derive only from custom and treaty law, thus, ruling out the possibility of extracting legally binding rules from other sources, such as courts judgments or soft law instruments. However, such remarks should not be considered as real defects of Oppenheim’s definition if one embarks on contextual speculations in a sense that international organisations were not a common feature of Oppenheim’s time, no rules referring specifically to individuals were present back then and no international court, as today’s International Court of Justice, existed upon whose judgments one could dwell and extract rules of law. What is certain is that Oppenheim’s treatise “gave a comprehensive, and yet detailed, overview of international law” ((Beatson& Zimmermann, supra note 1, at 586.))and constitutes one of the best introductions to International Law.

Definition of International Law and the Law of Unmanned Weapons

Author: Donia Joevion Fuller, Research Associate

In recent times, many have questioned whether the status of international law as a genuine body of law. The reasons are tumultuous and stem from what is perceived as a worldwide disregard for several international instruments and principles. For instance, as Darfur continues to be embroiled in bitter conflict, Sudanese children are constantly forced to become “soldiers” for rebel factions.

However, this argument it is submitted is manifestly flawed. A brief comparison between International Law also called, the law of the nations ((J.L. Brierly, Law of Nations: An Introduction to the International Law of Peace, 6th ed; James H. Wolfe, Modern International Law: An Introduction to the Law of Nations))and laws that govern a state’s internal affairs will suffice to dispense with this critique. In several countries in the Commonwealth Caribbean, laws designed to regulate the use and protection of the environment are oft-disregarded. Yet, no one would challenge the legitimacy of the legal system on a whole. Simply put, the fact that individuals fail to adhere to laws and attendant regulations does not mean that there is-no law. That international law as first understood has experienced an evolved is not in dispute. This article aims to critically comment on this progression with a view to commenting on the recent debates on the legality of the use of unmanned vehicles in combat.

Defining International Law

Often described as the “father of the law”, Jeremy Bentham ((The Collected Works of Jeremy Bentham, ed. J. H. Burns (1961-79), J. R. Dinwiddy (1977-83), F. Rosen (1983-94), F. Rosen and P. Schofield (1995-2003), P. Schofield (2003-), London and Oxford))is cited as using the “International Law” 1780. Since that time, the term has been used as a collective reference for the body of rules and principles which regulate the relations among the members of international community. The relevant members of the international community being understood as not only including state actors, but also non-state elements such as the United Nations and the various bodies that operate under its mandate, quasi-judicial bodies, humanitarian institutions and NGO’s ((M.N.Shaw, International Law, 4th ed. (Cambridge: Grotius Publication, 1997).)).

Writing in 1905, Oppenheim ((L. Oppenheim, Oppenheim’s International Law (Robert Jennings & Arthur Watts, eds.), 9th ed.))defined international law as “the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other.” The limitations of this definition are obvious. The International Court of Justice in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations affirmed that obligations and rights under International Law are not within the sole remit of states ((Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th rev. ed.)).

 The Court had to answer two main questions which sought to resolve firstly, whether in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him? Secondly, in the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?

In relation to the first issue, the Court unanimously reached the conclusion that the Organization has the capacity to bring an international claim against a State (whether a Member or non-member) for damage resulting from a breach by that State of its obligations towards the Organization. The Court noted out that it is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover. On the contrary, the measure of the reparation should depend upon a number of factors which the Court gives as examples.

On question I (b) the Court’s opinion was divided but the majority held that the Organization has the capacity to bring an international claim whether or not the responsible State is a Member of the United Nations. Finally, the second issue, the majority of  their Excellencies opined that when the United Nations as an organization is bringing a claim for reparation for damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule ‘will usually prevent a conflict between the action of the United Nations and such rights as the agent’s national State may possess; moreover, this reconciliation must depend up considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States.

The Statute of the ICJ provides what is considered as a comprehensive list of what may be considered sources of international law. Article 38(1) in the following terms identifies not only customary rules and conventions but also general principles.

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

  1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
  2. international custom, as evidence of a general practice accepted as law;
  3. the general principles of law recognized by civilized nations;
  4. subject to the provisions of Article 59, [.e. that only the parties bound by the decision in any particular case,] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Clearly, general principles, judicial decisions and teaching of highly qualified publicists play a role in what can be coined international law.

Understandably a more appropriate and indeed current definition may be that of J.G. Strake where he stated that

“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 on their relations with each other, and include 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 as far as the rights or duties of such individuals are the concern of the international community.”

Definition of International Law and the Law of Unmanned Weapons

This definition of Strake takes into account the changing character of International Law. On the issue of the legality of unmanned vehicles in combat such a definition is useful. To date, there is no treaty that delineates states’ obligations on this matter. Whilst the utility of such mechanisms are clearly recognized as if used properly they should reduce the death toll of national soldiers. However, taking the human element of discretion has potentially disastrous consequences. Whilst such systems are designed to recognize enemy combatants, the very real risk exists that in the event of situation where combatants are very near to civilians an unmanned weapon could cause civilian deaths being unable to distinguish between the two groups.

Established authorities on the use of force may not be very helpful should such a situation arise. The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons outlines conditions of self-defence that has been clearly outstripped by technology.  Moreover, a state which uses such weapons may not necessarily be able to avail itself of the tenuous doctrine of anticipatory self defence, which itself has not received a strong foothold on legitimacy in International Law. Should the issue arise; general principles of international law particular in relation to humanitarian law as well as customary international law will have to be employed in determining the duties of a state to civilians in such situations. The inadequacy of Oppenheim’s definition perhaps becomes more blatant.

Conclusion

It may be most appropriate to define International Law as a corpus of general principles and specific rules evidenced by conventions and customary rules which are binding upon the members of international community in their mutual relations. In light of the rapid development of technology which changes the character of how states relate to each other it is necessary that any definition of international law recognizes any source that may be useful in resolving the issue.

Is International Law a “Law” in the true sense?

Author: Amitabh Robin Singh, Research Associate

International law has been defined in many ways be many people but the three prominent scholars whose definitions carry the most weight are: the German jurist Lassa Francis Lawrence Oppenheim, James L. Brierly and Joseph Gabriel Starke, the Australian scholar. At the very outset of this piece, we will look at how these three scholars have defined international law or the law of nations.

According to Oppenheim ((Jayaprakash Kakada, What are the drawbacks of the definition of international law given by L. Oppenheim?,  (July 10, 2013, 12:25 PM) http://www.preservearticles.com/2012011020419/what-are-the-drawsbacks-of-the-definition-of-international-law-given-by-l-oppenheim.html)) international law is “Law of Nation or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their relation with each other.”

J.G. Starke ((This definition is an adaptation of the definition of International law by the American authority Professor Charles Cheney Hyde))defines international law 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, an therefore, do commonly observe in their relations with each other…”

He goes on to describe international law as:

  1. 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
  2.  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 ((I.A. Shearer, Starke’s International Law 3 (1st ed. 2010).)).

J.L. Brierly’s definition is as follows:

International Law may be defined as “the body of rules and the principles of actions, which are binding upon civilized states in their relation with the one another ((J.L. Brierly & Humphrey Waldock (Ed), The Law of Nations (1963).)).”

As we can see from perusal of these three celebrated definitions, all of them use the terms “binding” or “bound”. Hence we can see that these three scholars intended for international law to be “hard” and binding on the international community. Alas, that principle has not held firm against the tides of politics and the might of the superpowers. The author will discuss more on this in the coming pages.

He says “consent cannot of itself create an obligation; it can do so only within a system of law which declares that consent duly given, as in a treaty or a contract, shall be binding on the party consenting.” ((Brierly, Supra Note 4 at 2))Therefore, there is a theoretical hole in this positivist concept of obligation despite its simplicity, popularity and intuitive plausibility. It cannot explain why international law is binding as law.

Brierly opined that international law had its genesis from the European nations who were conscious of their common Christian background and common history from the Roman and Greek civilisations. Brierly was against the school of thought that said that international law is a branch of ethics and not a law. He was of the opinion that if it were simply international morals than what the other moral are and ethics used in the conduct of relations between states ((Brierly, Supra Note 4 at 2))?

An example of this would be the non-binding nature of international comity, which comprises of the act saluting the flags if other countries warships while at sea ((North Sea Continental Shelf cases, ICJ Reports, 1969, p. 44; 41 ILR, p. 29)). These are not binding obligations, no sanctions will be imposed if these codes of morality or ethics are violated, they are performed out of mere courtesy

 In the author’s opinion, Brierly’s most eloquent case for international law being a law in a true sense is when he stated that every state acknowledges the existence of international law and knows that it has an obligation under international law. He went on to state that a nation may violate international law as an individual would violate municipal law, but the state would not claim to be above international law as an individual would never take the defence of being  above municipal law ((J.L. Brierly,  The Outlook for International Law 5 (1944).)).

Even the United States of America, which is often accused of being contemptuous of International law tried to adhere to international law during the raid in Pakistani territory that killed Al Qaeda founder Osama Bin Laden.  Due to the fact that America was not at war with Pakistan, the U.S. transferred the soldiers used in the raid from the military services to the civilian Central Intelligence Agency (C.I.A.) to adhere to the norms of the law of nations ((Kimberly Dozier & Robert Burns, “Raid raises question: Who’s soldier, who’s spy?”. Fox News.Associated Press. (July 10, 2013, 12;40 AM) http://www.foxnews.com/us/2011/05/05/raid-raises-question-whos-soldier-whos-spy/)).

Hard Law or Soft Law?

Hard law when used in the context of international law refers to legally binding obligations that are precise (or can be made precise by adjudication) and that delegate the authority to a body for interpreting and implementing the law. This hard law helps reduce the transaction costs of states and strengthens the credibility of their commitments ((Kennoth Abbot & Duncan Snidal, Hard and Soft Law in International Governance, 54 (Summer 200).)).

Soft law may be defined as “non-binding instruments”. This characterization is not entirely wrong but is slightly misleading due to the fact that soft law has no per se binding effect, it is conceived to have such effect in the long term. This means that while treaties are actually binding (after ratification by states), soft law instruments are only potentially binding ((Roberto Andomo, The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics, July 7, 2013, 4:40 PM) http://www.unesco.de/1507.html)). A good example of soft law would be the Universal Declaration of Human Rights.

In Military and Paramilitary Activities in and against Nicaragua, ((The Republic of Nicaragua v. The United States of America, 984 ICJ REP. 392 June 27, 1986))there was a third party to adjudicate disputes, yet still the law proved to be soft due to the balance of international politics. In this case the International Court of Justice ruled against the United States of America for supporting rebels in Nicaragua. The United States blocked this judgement by the Security Council and hence Nicaragua never got any of the compensation it was entitled to.

The Court held that the United States was “in breach of its obligations under customary international law not to use force against another State“, “not to intervene in its affairs“, “not to violate its sovereignty“, “not to interrupt peaceful maritime commerce“, and “in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956.”

Positivists and Naturalists

As international law developed after Hugo Grotius, (the “father of international law”) two distinct schools of the law of nations arose. One was the naturalists, who believed that international law was completely identifiable with the law of nature. On the other hand, there were the positivists, who were of the view that international law and natural law were completely distinct entities. The positivists leaned towards current state practices and dilemmas of a more practical nature ((Malcolm N. Shaw, International Law 24 (5th Ed, 2003).)).

Heinrich Triepel (1868-1946) has given a modern spin to positivism by saying that international law must lie in the will of all of the states involved. He laid down that once a tralaw had been made implicitly (customs) or explicitly (treaties) by the countries, it could not be unilaterally revoked by any of the parties ((Stephen Hall, The Persistent Spectre: Natural Law, International Order and the limits of legal positivism, European Journal of International Law (July 13, 2013, 7:15 AM) http://www.ejil.org/pdfs/12/2/1518.pdf)).

While the naturalist Samuel von Pufendorf declined to subscribe to the idea that an agreement between sovereigns could constitute positive law. According to Pufendorf international law was simply the “natural law of states” ((Samuel von Pufendorf, De jure Naturae et Gentium libri octo (1934) Translation by C.H. and W.A. Oldfather of the 1688 edition)).

Is International Law a “Law” in the true sense?

Enforceability Argument:

One major bone of contention in the argument in whether international law is a law in the true sense of the word or not is whether it is enforceable or implementable or not. Some thinkers like Thomas Hobbes ((Robert F. Turner, International Law is really Law, (July 9, 2013, 10:00 PM) http://www.fed-soc.org/publications/detail/international-law-really-is-law)), and Jeremy Bentham ((HB Jacobini, Some Observations concerning Jeremy Bentham’s Concepts of International Law, American Society of International Law ( 10 July 2013, 11:30 PM) http://www.jstor.org/discover/10.2307/2193684?uid=16936288&uid=3738256&uid=2&uid=3&uid=67&uid=31022&uid=62&sid=21102530563967))are of the opinion that seeing that International law is not binding or enforceable, it is not a law in the true sense. On the other hand Oppenheim ((Dr. V. Balakista Reddy, Introduction to International Law, (July 11, 2013, 1:20 AM) http://pgdalatm.nalsar.ac.in/materials/Intro%20to%20International%20Law.pdf)), Brierly ((Balakista, Supra Note 18 at 5))and Starke ((S.K. Verma, An Introduction to Public International Law, 49 (2004).))were of the opinion that international law is a law due to the fact that it could be implemented or enforced.

The positivist will have to argue that any legal system in which social disapproval functions as the sole sanction (for example, in a peaceful tribal society) does not have ‘law.’ ‘Law’ is present only when, in addition to social disapproval, there is physical coercion stemming from the sovereign power of the state. But what if there is no need for this physical coercion? The positivist must then conclude that there is no law ((Anthony D’Amato, Is International Law Really ‘Law’?, Northwestern University School of Law Scholarly Commons (July 12, 2013, 7:45 AM) http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1102&context=facultyworkingpapers)).

However as we know often disapproval of the international community is not enough to deter some of the more powerful nations in the world from violating international law while “looking after themselves”

Oppenheim was of the opinion that the enforcement mechanism of international law of international law is war. If a nation is in violation of international law a “just war” may be waged against it ((L. Oppenheim, International Law 177-79 (H. Lauterpacht 7th ed. 1952).)). Again, in the modern world of “balance of power” and very few superpowers left standing along with globalisation, this would impractical as no country would dare to rise against a leviathan-like power which has its tentacles in almost every country in the world, whether it be in the economic sphere or in matters of military.

Professor D’Amato ((D’Amato, Supra note 21 at 5))then goes on to contend that International Law is not disqualified from being a law simply due to the fact that it is violated. Even domestic law is violated and nobody questions whether domestic law is a “law” in the true sense. Here the author would like to add to Professor D’Amato’s argument with an example in the Indian context. It is often contended that the powerful nations violate international law and get away scot free. Similarly in India often powerful political and economic entities commit crimes and get away in a similar manner, yet no one would object to our domestic law being a “law” or not.

He then gives an argument in the flipside that says simply because most nations obey the law it is not necessary that it be a law in the purest sense of the word. This is due to the fact that many countries violate international law with utmost impunity in matters of critical importance.

Conclusion

After placing three celebrated definitions of international law before the reader and after discussing the various debates related to international law, the author would like to leave it up to the reader whether international law is a true law or not whether the reader considers hard law or soft law to be the most efficient path for international law to tread upon to make a safer more secure future for the world.

An Introduction to International Law

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.